Pitt (a Pseudonym v The Queen
[2020] VSCA 73
•27 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0095
| LACHLAN PITT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 March 2020 |
| DATE OF JUDGMENT: | 27 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 73 |
| SENTENCE APPEALED FROM: | [2019] VCC 487 (Judge McInerney) |
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CRIMINAL LAW — Appeal — Sentence — Applicant sentenced for sexual offending against his daughter between 1988 and 1992 — Applicant undergoing sentence for murder committed in 1997 — Totality — Delay — Lost opportunity for sentences to be served concurrently — Judge’s intention that sentence for sexual offending be served wholly concurrently with sentence for murder — Orders ineffectual to achieve judge’s stated intention — Leave to appeal granted and appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Foot | Patrick W Dwyer |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
WEINBERG JA:
Plea, sentence and grounds of appeal
On 20 December 2018, the applicant pleaded guilty in the County Court to one charge of indecent assault[2] (charge 1), four charges of gross indecency[3] (charges 2, 3, 4 and 5) and one charge of incest[4] (charge 6). Following a plea on 5 March 2019, the applicant was sentenced on 9 April 2019 to nine years’ imprisonment, with a non-parole period of seven years, in accordance with the following table:
[2]Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1980), s 44(1). The maximum penalty is five years’ imprisonment.
[3]Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1980), s 50(1). The maximum penalty is two years’ imprisonment.
[4]Crimes Act1958 (as amended by the Crimes (Rape) Act 1991), s 44(1). The maximum penalty is 20 years’ imprisonment.
Charge Offence Sentence Cumulation 1 Indecent assault 2 years 9 months 2 Gross indecency 9 months 3 months 3 Gross indecency 12 months 4 months 4 Gross indecency 12 months 4 months 5 Gross indecency 12 months 4 months 6 Incest 7 years Base Total Effective Sentence: 9 years’ imprisonment Non-Parole Period: 7 years’ imprisonment Pre-Sentence Detention: Nil Section 6AAA Statement: 12 years’ imprisonment with a non-parole period of 9 years’ Ancillary orders · Forensic sample order
· Sentenced as a serious sexual offender on charges 3, 4, 5 and 6
· Sex offender registration (reporting for life)
The applicant seeks leave to appeal against the sentence on four grounds as follows:
1 The Learned Sentencing Judge failed to take into account the lost opportunity for the applicant to serve the sentence concurrently with the sentence imposed in April 1998.
2 The Learned Sentencing Judge incorrectly understood that the applicant had a prior conviction for murder.
3 The Learned Sentencing Judge was mistaken about the applicant’s earliest release date and the date he was to have been released on parole.
4 In light of the objective gravity of the offending, the individual sentences imposed on charges 3, 4, 5 & 6, the total effective sentence and non-parole period are manifestly excessive.
Particulars: Insufficient weight was given to the pleas of guilty, delay, the principle of totality, the need to avoid a crushing sentence and the age of the applicant.
For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the applicant in the manner we will later set out.
The offending
Before turning to a consideration of the grounds of appeal, it is necessary to say something of the applicant’s offending, which, as will be seen, was very serious.
Between 16 March 1988 and 30 April 1992, when the offending occurred, the complainant, ‘JLP’, was aged between eight and 12 years of age, and the applicant was aged between 42 and 46 years of age. The applicant is currently 74 years of age.
In 1964, the applicant married ‘JS’, the complainant’s mother. They separated around 1983. JLP remained with the applicant, who began residing with a woman, ‘SM’, and her daughters ‘S’ and ‘CM’. JLP shared a bedroom with S.
Charge 1
In March 1988, when JLP was aged eight years, she was lying in bed. The applicant came and sat at the end of the bed and asked her if she wanted to play a game. She said, ‘Yes’. The applicant then removed the doona from JLP’s bed and told her to put her legs up. He then began to tickle her legs, put his hands on her underwear near her vagina, pulled her underwear to the side, and started rubbing the opening of her vagina before inserting his finger, causing JLP pain.
JLP told the applicant, ‘It hurts, it hurts’ and started crying. He said angrily, ‘I’ll give you something to cry about’. The applicant had his hand over JLP’s mouth to keep her quiet and he told her that if she kept making noise, he would lock her under the house. His finger remained in JLP’s vagina for about five minutes. He then got up and left the room. JLP cried herself to sleep and was in pain.
The next morning, JLP noticed dry blood inside her underwear and then on the toilet paper. At swimming lessons that day, one of the parents questioned her about her apparent injury and she said she did not know how this happened. JLP was taken to see a general practitioner who examined her and found that she had a split in her perineum and fresh bleeding. The doctor concluded that her injury was as a result of sexual interference. He asked JLP how her injury had occurred and she denied that she had been sexually interfered with. She stated that she had injured herself during a fall at the pool. Upon attending the clinic, the applicant spoke with the doctor, then took JLP home. The doctor reported his concerns to the police.
When they arrived home, the applicant told JLP that she needed to lie and tell the police that her swim teacher had caused the injury. He offered her an ice-cream if she did so. At one point, JS inspected the complainant’s genital area. JLP said that her swimming teacher had caused the scratch to her vagina.
Police arrived at the home the same day and asked JLP if the applicant had caused the injury. She said, ‘No’. She told the police that her swim teacher had caused her injury in the change rooms. The applicant came into the room and gave JLP the ice-cream he had promised her and she ate it. She told the police that her swimming teacher had not caused the injury. JS then asked police to leave and no further police action was taken.
The applicant threatened to lock the complainant under the house if she told anyone about how she got the scratch on her vagina, and there were occasions when the applicant did lock her under the house.
Charge 2
On 3 October 1988, when she was aged eight, JLP made a birthday cake. Later that night, when JLP was in bed, the applicant came into her room, sat on the end of her bed, unzipped his pants and pulled out his penis. He asked JLP, ‘You wanna touch this?’, in a forceful manner. JLP said, ‘No’, but he encouraged her to touch him. The complainant was afraid so she touched the applicant’s penis. She touched the top of his penis for about ten minutes. The applicant told JLP that she was not touching his penis the right way. He put his penis back into his pants and left the bedroom. As he walked out of the bedroom, S walked in. JLP did not tell S what had happened.
Charge 3
One afternoon after school, when she was still aged eight, JLP was in the lounge room. The applicant told her to lie down and take off her school uniform. She did that and then lay on her back. The applicant took off his jeans and underwear. His penis was erect. The applicant asked JLP if she wanted to kiss his ‘dick’ and touch it. JLP asked the applicant, ‘Why would I want to do that?’. He replied that she had to unless she wanted to get into trouble. JLP did what she was told and used her mouth to rub the top of his penis for 10 to 15 minutes. She held his penis with her hand but it did not enter her mouth.
Charge 4
JLP commenced Grade 5 in 1990 when she was aged 10 years. At a time near the start of the school year, the applicant picked JLP up from school and took her to some shops to buy her an apple turnover. They then went home and went into the lounge room, where the applicant told JLP to take off her school uniform and get naked. The applicant took off his pants and was naked from the waist down. He sat in the corner of the couch and started to masturbate. JLP was lying on a rug and the applicant told her to bend over and get on all fours. JLP was on her hands and knees facing away from the applicant with her bottom and vagina facing him. She could hear him moaning and he told her to touch herself but she refused. The applicant let out a loud grunt and JLP heard him do up his belt. He yelled at her that she was useless. She cried. The applicant then went outside.
Charge 5
Around May 1990, JLP, aged 10 years, bought her mother a gift from the Mothers’ Day stall at school. The applicant picked her up from school and she showed him what she had bought. He told JLP that she loved her mother more than him and that if she wanted to live with her mother, she could. When they arrived at home, JLP went into her bedroom to pack her belongings. The applicant then took her into the lounge room and made her get naked. He sat in the corner of the couch with his pants off and masturbated while JLP lay on her back. The applicant finished masturbating, put on his pants and started laughing, saying, ‘As if you are ever going to live with your mum’. He then left the room.
JLP was very upset when the applicant told her she would not be living with her mother, and the next day she had a bad day at school. Her mother, JS, was called to the school. JS spoke to the principal who asked if she thought that the applicant could be hurting JLP. The complainant overheard her mother say, ‘He promised that he would never hurt her’. JS drove JLP home to the applicant’s house and told her that she would collect her on the weekend. When they arrived at the house, JS told the applicant that she had been called down to the school. Thereafter, the applicant did not sexually interfere with JLP for some time. He told her that if her teachers found out, she would not be in the home and she would ‘get [him] into so much trouble’.
Charge 6
The last time the applicant sexually abused JLP was in April 1992, around the time of JS’s birthday, when JLP was aged 12 years. JLP had been to her mother’s house for her birthday. It was a Sunday night. After she returned home, JLP went to bed. The applicant came into her bedroom with an alcoholic drink and made JLP drink it. He then became naked. JLP was wearing a night dress and underwear. The applicant removed her underwear and put his penis around her vagina. After about five minutes of attempting to put his penis inside JLP’s vagina, he achieved penetration, causing her pain. JLP was crying. The applicant told her to shut up and that he could not handle her crying. When the applicant eventually got off JLP she was bleeding. The applicant got dressed and left the room.
Two months after the incident of incest, JLP went to live with her mother. She visited her father on weekends for about two months until she attempted suicide. Thereafter, she only saw the applicant on about three more occasions.
Disclosure
JLP disclosed the applicant’s offending to her boyfriend when she was aged 14 years. Police were notified and they spoke to her about the abuse. JLP was scared of the applicant, however, and did not provide much detail. Ultimately, she did not pursue a complaint and the matter was not further investigated at that time.
In 2018, JLP once more reported the offending to the police. The applicant provided a ‘no comment’ interview to police on 25 June 2018. Following charges being laid, a contested committal hearing commenced on 29 November 2018. About an hour or two into JLP’s cross-examination, however, the matter resolved.
The judge’s misunderstanding about the applicant’s sentence for murder
As may be gleaned from the grounds of appeal, a sentence imposed on the applicant for murder is (in one way or another) relevant to the four grounds of appeal.
The applicant killed his step-daughter, CM, on 9 May 1997. He pleaded guilty to her murder, and, on 30 April 1998, was sentenced to 24 years’ imprisonment with a non-parole of 19 years. The judge declared pre-sentence detention of 356 days. In the ordinary course of events, the applicant’s non-parole period would have expired around May 2016, and his head sentence around May 2021.
We pause to note the circumstances of the murder. In his reasons for sentence, the Supreme Court judge who sentenced the applicant described the circumstances of the offence as follows:
In about 1982 you commenced a de facto relationship with [SM]. [SM] had two daughters, one of whom was the deceased, [CM]. After residing at a Bulleen address for about nine years the family moved in 1992 ... In late January 1996 [CM] left that residence seeking to keep her whereabouts a secret from you. In May of that year [CM] went to the Mill Park CIB and made allegations against you of sexual assaults, which included rape and bestiality. She also complained of emotional and economic abuse. It was alleged that the assaults and sexual abuse commenced when [CM] was about nine years of age and had continued until she left the Mill Park house. [CM’s] older sister also made allegations against you of sexual activity occurring frequently from the time she was 15 until she was 19 years of age. She had left home in 1988. Both sisters expressed a fear of you.
On 4 June 1996 you were interviewed by the Mill Park CIB in relation to the sexual allegations made by the deceased against you. You denied the offences, but were charged with a number of counts of bestiality, rape and gross indecency. Apart from the allegations of [CM] and her sister, subsequent DNA testing on seminal stains on some items of [CM’s] clothing produced results consistent with you being its source. According to the depositional material, you admitted to your sister … physically assaulting the deceased, but not sexually assaulting her. It is not the role of this court to attempt to determine the truth of the sexual allegations. It is sufficient to say that such allegations were detailed and serious, and if you were found guilty of them by a jury you could expect a lengthy term of imprisonment.
As appears from the statements of your sisters, … you were extremely angry at the deceased for having made these allegations. You spoke about her in unpleasant and offensive terms and indicated to [a sister] that you were not going to do 20 years because of her.
On 11 November 1996 you were served with a copy of the hand-up brief relating to the sexual charges. Your wife described you as becoming very depressed with low morale and suffering from an acute anxiety. You had been receiving treatment for depression and anxiety from your local GP … from at least the time that [CM] left home in January 1996. That treatment involved anti-depressant and anti-anxiety medication. According to your wife, you became more and more paranoid in the two months leading up to the scheduled date of the committal proceedings in late May 1997. Your sisters also described your agitation, obsession and paranoia increasing as the hearing date approached.
…
At about 7.50 am on Friday 9 May 1997 you drove [a] hired Holden Commodore to Beach Avenue, Mordialloc, and parked on the eastern curb just north of the intersection of Beach Avenue and Wells Road. You wound down the front passenger side window of the vehicle. At about 8.10 am the deceased travelled south in Beach Avenue in her Mazda car towards her place of employment in Wells Road. As she approached the intersection of Wells Road and Beach Road you drove the Commodore parallel with the driver’s side of the deceased’s vehicle. On drawing level with it you fired [a] .38 revolver through the passenger side front window of your car. The bullet passed through the driver’s side window of the Mazda, hitting the deceased in the right cheek. Her vehicle then rolled across the intersection coming to rest against a post bordering a grass reserve on the southern side of Wells Road. You drove slowly across the intersection and, after parking your vehicle on the driver’s side of the Mazda, you alighted, walking to it and discharged the revolver twice at point blank range into [CM’s] right temple area. After returning to the Commodore, you shot yourself in the head with the weapon.
The judge’s orders were not apt to effect his intention
Much of the plea by the applicant’s counsel in the court below relevant to the present charges was taken up with submissions on totality. Among other things, it was submitted that there ought to be an appropriate reduction of the sentence to be imposed in relation to the instant offending to reflect the ‘loss of opportunity of concurrency’ with the sentence being served for murder. It was said that had the sexual offending against JLP come to light much earlier, there would have been every possibility that a major part of any sentence imposed in relation to it would have been ordered to be served concurrently with the sentence being undergone for the murder of CM. It was submitted to the sentencing judge that he should fashion orders to avoid a crushing sentence and to reflect the principle of totality.
It is tolerably clear that the sentencing judge mistakenly thought that the applicant’s head sentence expired in 2022, not 2021. It is also tolerably clear that he intended that the whole of the sentence he imposed was to be served concurrently with the sentence for murder. Thus, the Record of Orders states that ‘this sentence be served concurrently with other State sentences already being served by the offender’. Furthermore, at different parts of his reasons for sentence the judge made the following remarks:[5]
I do, however, take into account, as best I can, the issue of had this matter been heard, a more concurrent sentence may have been able to be passed. I also note [the applicant’s] age. …
... I do, however, intend to make the sentences concurrent. I do not intend to order any period of cumulation with the existing service [sic], which I understand will take Mr Pitt through to a period of about 22 [i.e. the year 2022], as best my notes are.
… I take into account that parole, that would otherwise have been granted on 29 June 2018, was denied to Mr Pitt and I take that into account in sentencing and I give some recognition to the issue as to concurrency brought about by delay in the matter.
Those periods of cumulation are to be served cumulative [sic] upon each other and upon the head sentence, making a total effective period of imprisonment of nine years. I order that the period that you should serve before being eligible for parole is a period of seven years. For clarity, I make no order which would in any way cumulate this sentence upon the current sentence being served. The effect of that would be that this would be served concurrently with the sentence being served.
[5]Emphasis added.
From the immediately foregoing, it is plain that the judge intended that the sentence he was to impose would, in its entirety, be served concurrently with the sentence that the applicant was undergoing for murder. The judge’s intention was that the sentence he imposed would be entirely served by the time the head sentence for murder expired (which he wrongly thought to be in 2022).
At the time that the judge imposed sentence on the six charges relating to JLP, 9 April 2019, the applicant had roughly two years still to serve on his sentence for murder. By reason of s 17(1) of the Sentencing Act 1991 (‘the Act’), the sentence he imposed commenced that day. Further, there was no pre-sentence detention capable of being declared under s 18 of the Act. Therefore (and very significantly), no matter the judge’s intention, his order that the sentence he imposed was to be served concurrently with the sentence for murder was ineffective to ensure that none of the sentence ‘would in any way cumulate [the] sentence upon the current sentence being served’. Indeed, the applicant’s sentence for the offending against JLP will expire in 2028, some six years or so beyond the time that the judge anticipated that the applicant would be released. The expiry of the sentence in 2028 will also mean that the applicant will have been in custody for between 30 and 31 years (by which time the applicant, now aged 74 years, will be aged 82).
Very fairly — and, we consider, correctly — senior counsel for the respondent conceded that, since the orders imposed by the judge were not effective to effect his intention, the exercise of the sentencing discretion was vitiated.
In those circumstances, leave to appeal against the sentence imposed must be granted and the appeal must be allowed.
Ground 1: Claimed lost opportunity to serve sentence concurrently
Given our conclusions as to the significance of the judge’s error, we are able to deal with the applicant’s grounds with relative economy.
We were told that the applicant had been eligible for parole on the murder sentence since May 2016, and that, on 9 January 2018, he was granted parole. He was due for release under that order on 14 February 2018, but for reasons that were not articulated during the course of this application, he remained in custody rather than being released. (At that time he had been in custody for between 20 and 21 years.) After being notified of the Parole Board’s decision, however, JLP reported the offending against her to police. Charges were laid against the applicant on 22 June 2018, leading on 30 October 2018 to cancellation of the decision to grant him parole. (The applicant had been in custody for more than 21 years when both these events occurred.)
In his reasons for sentence, the judge said that
an allowance to some degree [has to be made], for the fact that had the matter been heard earlier, a period of concurrency may have been available, however, this is quite speculative given the fact that essentially Mr Pitt only has one prior, albeit for the most serious offence that one can commit, being murder.
And he observed that the
issue of delay needs to be taken into account, although, as I have already indicated, delay is almost part of these type of offences and really comes about from the consequences of the crime itself, people are so decimated that they cannot bring themselves to complain, and it is probably only the fear of her father getting out of jail that motivated her to finally complain.
I do, however, take into account, as best I can, the issue of had this matter been heard, a more concurrent sentence may have been able to be passed. …
The applicant’s counsel submitted that the foregoing passages betray specific error. It is not speculative that the applicant lost an opportunity of concurrency given the timing of this matter being prosecuted. JLP, counsel submitted, could have complained about the offending to police at any time whilst her father was imprisoned, but she waited until he was about to be released on parole. Counsel conceded that there would have been some cumulation of the sentence for the present offending on the sentence for murder, but contended that, given the principle of totality, a much larger portion of it would have been made concurrent than was possible given the timing of JLP’s complaint.
Counsel for the applicant argued that, although the judge ordered the instant sentence be served wholly concurrently on the murder sentence, in order to give proper effect to the lost opportunity for concurrency and to the totality principle, the individual sentences on each charge should have been less than would otherwise have been warranted in the unusual circumstances of this case. It was submitted that the applicant will serve the best part of 30 years in custody, before again being eligible for parole. He will be 80 years of age by that time. The sentencing judge’s failure to take into account the lost opportunity for concurrency, so it was submitted, amounts to specific error and re-opens the sentencing discretion.
The respondent’s counsel submitted that the judge took into account and ‘made allowance to some degree’ for the fact that had the matter been heard earlier, a greater portion of the sentence imposed may have been served concurrently. But, as the judge stated, whether a greater portion of the sentence wound have been ordered to be served concurrently is merely speculative. Given the circumstances of the murder, and those of the current offences, so counsel submitted, the judge could do no more than make ‘allowance to some degree’ for what was a difficult to sustain submission.
In our view, the principle of totality dictated that some part of the sentence imposed for the applicant’s offending against JLP ought to be served concurrently with the sentence for murder. Beyond that conclusion, however, in light of the respondent’s concession that the sentencing discretion effectively is re-opened, it is unnecessary to say anything more of this ground.
Ground 2: Asserted misunderstanding concerning the applicant’s antecedents
There is nothing in this ground.
In his reasons for sentence, the judge stated that the applicant ‘only has one prior, albeit for the most serious offence that one can commit, being murder’.
Counsel for the applicant submitted that the judge’s statement was wrong, since the applicant’s conviction for murder post-dates the present offending. The error is significant enough, it was submitted, that it must re-enliven the sentencing discretion. That is so, since prior convictions necessarily have an impact on the assessment of prospects of rehabilitation and the weight to be given to specific deterrence and protection of the community. In this case, these considerations are more than notional. It must be the case, counsel submitted, that the complete absence of prior convictions must have a meaningful effect on the sentence to be imposed.
The respondent’s counsel submitted that the sentence for murder did nothing other than enliven the principle of totality. It was submitted that the judge understood that he was sentencing the applicant for offending that occurred between 1988 and 1992, and that the murder occurred in 1997. The prosecutor confirmed there was no prior criminal record, and counsel for the applicant confirmed further that there was no prior criminal history.
In our view, the applicant’s subsequent conviction for murder was relevant to an assessment of his prospects for rehabilitation (albeit that the judge made no finding on that topic). Between 1992, when his offending against JLP ceased, and 1997, when he murdered CM, it could not be said that the applicant had undertaken a process of reform.[6] The applicant’s later conviction for murder could have been used to negate, reduce or qualify an inference as to the applicant’s later conduct which would otherwise arise and operate in mitigation of sentence.[7]
[6]R v Rumpf [1988] VR 466, 475 (‘Rumpf’); DPP v Rongonui (2007) 17 VR 571, 580 [37], 581 [41]; Rootsey v The Queen [2018] VSCA 108, [8].
[7]Rumpf, 475.
Ground 3: Alleged mistake as to earliest release date
Counsel for the applicant in this Court submitted that the judge understood that about three years of the sentence he imposed would run concurrently with the applicant’s sentence for murder. The judge had misunderstood the chronology, however, since, as we have said, the applicant’s sentence for murder will expire in May 2021, not in 2022. Counsel submitted that the sentence should be reduced to reflect the judge’s intention that three years be served concurrently. Moreover, the applicant was set to be released on parole on 14 February 2018, not, as the judge said in his reasons for sentence, on 29 June 2018 (that being the date that the applicant was remanded on the charges against JLP). Given the judge’s intention to take into account this lost opportunity for concurrency, counsel submitted that the overall sentence should be reduced to reflect the judge’s error as to dates.
Once more, however, given the respondent’s concession of error, it is unnecessary to explore the submissions made under cover of ground 3.
Ground 4: A manifestly excessive sentence?
Since, in the circumstances, the sentencing discretion falls to be exercised afresh by this Court, there is no necessity to consider ground 4, which was a complaint that each aspect of the sentence was manifestly excessive.
Resolution
With respect to the sentence to be imposed by this Court, counsel for the applicant relied principally upon four factors: the applicant’s ‘early’ plea of guilty; his age; his ill health; and the delay.
The applicant is, as we have noted, aged 74 years.[8] He has been diagnosed with a number of medical conditions, including type 2 Diabetes and depression. Moments after he murdered CM in 1997, the applicant shot himself in the head. As a result he was in a coma for some time and subsequently suffered seizures. He was diagnosed with epilepsy and has taken anti-seizure medication since that time. In 2011, he suffered a bout of meningitis, and since then has suffered severe headaches. About a decade ago, he suffered a mild stroke. More recently, the applicant was diagnosed with a benign neoplasm in the prostate, and is awaiting an operation. Due to his prostate condition, since August 2018 he has had a catheter, which requires regular changing. The catheter is painful day to day and results in extreme discomfort, which, the applicant’s counsel submitted, makes imprisonment more burdensome.
[8]His date of birth is 29 August 1945.
Counsel for the applicant submitted that the applicant’s pleas of guilty carried significant weight, and a ‘real and tangible’ discount should follow. The applicant could have taken a ‘nothing to lose’ attitude but did not. Instead, he facilitated the course of justice, and his plea had utilitarian value. The applicant’s plea significantly reduced the impact of the judicial process on the complainant.
Although the applicant’s counsel accepted that delay in reporting sexual offending of kind in this case is not uncommon, it was submitted that, since the applicant is serving a lengthy sentence, the delay has had a greater than usual impact. Counsel put totality to the forefront, the applicant having spent almost 23 years in custody.
The respondent’s counsel submitted in writing that the applicant’s offending (as the sentencing judge had observed) was ‘heinous and outrageous’. Counsel submitted that the offending occurred over a period of four years, when JLP was aged between eight and 12 years. It occurred in the family home at a time when the victim’s mother had separated from the applicant and no longer lived in the home, and involved a gross breach of trust. Further, the environment in which the complainant lived was one of physical and verbal abuse. The impact of the offending upon JLP was devastating. She blamed herself for the offending, and described living in constant fear of her father and crying herself to sleep at night. When teachers enquired as to her welfare, JLP was forced to lie as her father had threatened to kill her if she disclosed the offending. JLP suffers from anxiety, depression, post-traumatic stress disorder and hyperhidrosis. She did not complete her secondary education, became withdrawn, engaged in self harm and continues to be in pain.
Counsel for the respondent submitted that the applicant’s plea was not at the earliest opportunity. The applicant entered a plea of guilty to the charge at the committal hearing after cross-examination of the complainant had commenced. It therefore cannot be said the victim was spared from the trauma of giving evidence, since she had been giving evidence about the offending — not peripheral matters — before the matter resolved. JLP’s victim impact statement articulates clearly how difficult appearing in court had been. Counsel for the respondent submitted that, although the applicant complains he has lost the opportunity to argue for a greater period of concurrency between the sentences, the lost opportunity ought not significantly mitigate the sentence. Furthermore, the applicant fell to be sentenced as a serious sexual offender on charges 3 to 6, so that there was a presumption of cumulation with respect to the sentences on those charges.[9]
[9]Sentencing Act 1991, s 6E.
In our opinion, the view apparently held by the sentencing judge that the applicant should not spend another day in custody beyond the expiry of his murder sentence for his outrageous sexual offending against JLP is untenable. The applicant’s murder of CM plainly deserved stern punishment, but so too did his sexual offending against JLP. Given JLP’s tender age; the protracted period over which the offending occurred; and the gross breach of trust involved; the gravity of the applicant’s offending objectively was serious and his moral culpability was high.[10] The applicant’s abhorrent offending, perpetrated against his natural daughter, required separate and distinct denunciation and punishment, and the impact of the offence upon JLP required perceptible recognition and vindication. As Vincent JA observed in Toomey:[11]
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.
[10]We note that in his sentencing remarks, when dealing with the circumstances of the incest, the judge found ‘that the objective offending in regard to Charge 6 is at the mid-range’. Insofar as such classifications have any utility, we consider the circumstances of the incest in this case take it beyond ‘mid-range’.
[11]DPP v Toomey [2006] VSCA 90, [22].
Notwithstanding these matters, however, we consider that the delay in this case is relevant in at least two ways. First, had the applicant been sentenced for his sexual offending at a time close to the commission of the offences, when current sentencing practices for sexual offending were somewhat different — sentencing practices for incest being of particular relevance in the present case[12] — the individual sentences on each charge (and on charge 6 in particular), the total effective sentence and non-parole period, would in all likelihood have been more moderate than those imposed by the sentencing judge. Secondly, we consider it likely that, had the applicant been sentenced for his sexual offending against JLP at around the same time he was sentenced for killing CM, some portion of the sentence for the sexual offending would have been ordered to be served concurrently with the sentence for murder.
[12]See DPP v Dalgliesh (a Pseudonym) (2017) 262 CLR 428. See also DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148; DPP v Dalgliesh (a Pseudonym) (2017) 271 A Crim R 1.
As a matter of fairness, we consider that the delay and its consequences must be given some recognition in the substituted sentence we must impose, which will operate from 9 April 2019, when sentence was first imposed in the court below.[13] At that time, the applicant’s head sentence for murder had a little over two years to run. As a result, any sentence that we impose is capable of being served concurrently for a maximum period of about two years from 9 April 2019. Hence, in order to give proper recognition to the principle of totality, we are left with little choice other than to impose individual sentences and orders for cumulation[14] that are more moderate than would otherwise be appropriate.[15]
[13]See R v Jennings [1999] 1 VR 352, 369 [66] (Brooking JA).
[14]The applicant is to be sentenced as a serious sexual offender on charges 3 to 6; so that, pursuant to s 6E of the Sentencing Act 1991, any term of imprisonment imposed on these charges must be served cumulatively unless otherwise directed. In contrast, the sentences on charges 1 and 2 are to be served concurrently unless otherwise ordered. As has previously been observed, strict compliance with the legislative regime is thus a somewhat cumbersome exercise. See Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 323 [119] (Priest JA).
[15]See DPP v Jones (a Pseudonym) (2013) 40 VR 267, 288 [90] (Redlich and Priest JJA).
In light of the foregoing, we grant leave to appeal against sentence, allow the appeal and set aside the sentences imposed by the County Court on 9 April 2019. In lieu, we would sentence the applicant on charge 1 to 18 months’ imprisonment; on each of charges 2, 3, 4 and 5 to nine months’ imprisonment; and on charge 6 to five years’ imprisonment. The sentence on charge 6 will be the base sentence. We will order that 12 months of the sentence on charge 1, and six months of the sentence on charge 2 be served concurrently; and three months each of the sentences on charges 3, 4 and 5 be served cumulatively; with each other and with the sentence on charge 6. The total effective sentence is thus six years and six months’ imprisonment.
Having given discrete consideration to those factors in the material before the court which bear upon the question of when the respondent should be eligible for mitigation of confinement and under conditional supervision,[16] we consider that justice requires that the applicant serve a period of four years’ imprisonment before the possibility of release on parole.[17]
[16]R v Mulvale (unreported, 20 February 1996, Vic CA); R v Bernath [1997] 1 VR 271, 278; R v Yates (1998) 99 A Crim R 483; R v Watts [1998] 4 VR 244.
[17]R v Morgan (1980) 7 A Crim R 146, 154; Power v The Queen (1974) 131 CLR 623, 628, 629; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525, 536.
It is our intention that the sentence that we impose is to be served concurrently with the unexpired portion of the sentence that the applicant is currently undergoing.
We will cause to be entered in the records of the Court that the applicant is sentenced as a serious sexual offender on charges 3 to 6 inclusive.
Further, we will declare as pre-sentence detention an appropriate number of days, calculated from 29 June 2018, the date of his remand in relation to the charges involving JLP.
All other orders of the sentencing judge will be affirmed.
Pursuant to s 6AAA of the Act, we declare that, but for the applicant’s guilty plea, we would have imposed a total effective sentence of nine years’ imprisonment, upon which we would have fixed a non-parole period of six years.
Our overall intention is reflected in the following table:
Charge Offence Sentence Cumulation 1 Indecent assault 18 months 6 months 2 Gross indecency 9 months 3 months 3 Gross indecency 9 months 3 months 4 Gross indecency 9 months 3 months 5 Gross indecency 9 months 3 months 6 Incest 5 years Base Total Effective Sentence: 6 years and 6 months’ imprisonment Non-Parole Period: 4 years’ imprisonment Pre-Sentence Detention: 637 days Section 6AAA statement: 9 years’ imprisonment with a non-parole period of 6 years’ Ancillary orders The sentence is to be served concurrently with any uncompleted State sentence.
The applicant is sentenced as a serious sexual offender on charges 3, 4, 5 and 6.
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