Pottinger v The Queen
[2011] VSCA 409
•8 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0046
| BRIAN POTTINGER | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | BONGIORNO JA and ROSS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 8 November 2011 |
| DATE OF JUDGMENT | 8 November 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 409 |
| JUDGMENT APPEALED FROM | R v Pottinger (Unreported, County Court of Victoria, Judge Wilmoth, 24 February 2011) |
---
CRIMINAL LAW – Appeal against sentence – Appellant sexually assaulted two children during single episode lasting 30 or 40 minutes – Found guilty by jury of 10 charges of committing indecent act with child under 16 and one charge of rape – Sentenced to total effective sentence of 11 years and 2 months’ imprisonment with non‑parole period of 7 years and 6 months – Whether orders for cumulation made by sentencing judge resulted in total effective sentence that was manifestly excessive – Appeal allowed – Orders for cumulation resulted in sentence that was disproportionate to seriousness of offending – Individual sentences imposed on appellant affirmed but directions for cumulation and non‑parole period set aside – Appellant re-sentenced to total effective sentence of 8 years and 8 months’ imprisonment with non-parole period of 6 years and 6 months – No point of principle.
---
| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr M Dempsey | Victoria Legal Aid |
| For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
On 12 August 2006, the appellant, Brian Pottinger, was the occupier of a semi‑rural property on the outskirts of Melbourne. He agisted horses on the property. On the day in question, two small children, TW, a 4‑year‑old boy, and CW, a 6‑year‑old girl, were at the property with their mother, who was tending to horses which were being agisted for her by the appellant.
At some time during the afternoon, the appellant told the children’s mother that he was going to fill some water troughs at the other end of the property and asked her if the children could come with him. The mother agreed. Pottinger then drove the children some distance away. He stopped and he and they alighted from the vehicle. He then committed a series of sexual offences against each of the children in respect of which he was charged, tried and convicted in the County Court on 4 November 2010.
At trial, the appellant faced an indictment containing 14 charges, some of which were alternatives. He was convicted on 11 charges and received a total effective sentence of 11 years and 2 months’ imprisonment with a non‑parole period of 7 years and 6 months. That sentence was constructed as follows:
Charge
Offence
Sentence
Cumulation
1
Indecent act with or in the presence of a child under 16
18 months’ imprisonment
6 months
2
Indecent act with or in the presence of a child under 16
18 months’ imprisonment
3
Indecent act with or in the presence of a child under 16
12 months’ imprisonment
6 months
4
Indecent act with or in the presence of a child under 16
12 months’ imprisonment
6 months
5
Indecent act with or in the presence of a child under 16
3 years’ imprisonment
18 months
6
Indecent act with or in the presence of a child under 16
3 years’ imprisonment
18 months
9
Indecent act with or in the presence of a child under 16
9 months’ imprisonment
1 month
10
Indecent act with or in the presence of a child under 16
9 months’ imprisonment
1 month
11
Indecent act with or in the presence of a child under 16
2 years’ imprisonment
9 months
12
Indecent act with or in the presence of a child under 16
2 years’ imprisonment
9 months
13
Rape
5 years’ imprisonment
Base sentence
On 18 May 2011, Ashley JA granted the appellant leave to appeal against this sentence. The grant of leave was restricted to the ground of appeal that the total effective sentence was manifestly excessive in that it was disproportionate to the totality of the offending.
Circumstances of the offending
After alighting from his motor vehicle some distance away from the children’s mother, the appellant exposed his penis to both children (charges 1 and 2), pulled down the pants of the children and placed his penis on the buttocks of each of them whilst masturbating (charges 3 and 4), ejaculated in the presence of both children (charges 5 and 6), kissed the buttocks of both children (charges 9 and 10), touched the genitals of both children (charges 11 and 12) and compelled the boy to place his penis in the appellant’s mouth (charge 13).
He returned the children to their mother about 30 or 40 minutes after taking them with him in his car. The older of the two children, the little girl, complained to her mother very shortly after they all left the appellant’s property.
The police were notified, inquiries were made, but Pottinger disappeared. Found in Queensland, he was extradited to Victoria, charged and bailed, but he absconded and was not found again for some time. Accordingly, he faced trial, due to his own conduct, some four years after this offending.
Plea hearing
The Crown case before the sentencing judge might be summarised as follows:
a. an appropriate sentencing range would be a head sentence of 10 to 12 and a half years’ imprisonment with a non‑parole period of 7 to 10 years;
b. the Sentencing Act1991 provisions with respect to serious sexual offending were enlivened, with the effect that the principle of totality was of reduced significance;
c. protection of the community was the principal sentencing consideration, with specific and general deterrence and denunciation also important;
d. the rape charge, charge 13, was a serious example of such a charge and it was significant that the appellant was found guilty of rape rather than sexual penetration of a child under the age of 16, which was an alternative;
e. the appellant had denied his involvement in any offending in respect of the children and had shown no remorse;
f. there was no evidence of any psychological impairment which would moderate the importance of general or specific deterrence; and
g. the psychological report tendered on the plea suggested that the appellant had little insight into his offending conduct and was at high risk of re‑offending.
The defence case may be summarised as follows:
a. a head sentence of 10 years’ imprisonment with a non‑parole period of 7 years would represent the upper end of the sentencing range open to the sentencing judge;
b. the appellant’s exposure of his penis ― the basis for charges 1 and 2 ― was a single episode and the appellant should not be ‘punished twice’ for this episode;[1]
[1]Effectively, this submission was that there should be no cumulation of the sentence imposed on charge 2 upon that imposed on charge 1 (or the other charges).
c. the appellant had had a harsh upbringing, little schooling and witnessed incidents of domestic violence at home;
d. the appellant had a bad criminal history, including a conviction for manslaughter, but no criminal history involving sexual offences against adults or children;
e. the plea of not guilty and the absence of remorse should be treated as ‘the one thing’ and not separate aggravating factors; and
f. the fact that the appellant was found guilty of rape, as opposed to sexual penetration of a child under the age of 16, did not make the rape charge any more serious.
Defence counsel also detailed other relevant personal circumstances of the appellant and apologised to the Court on his behalf for an outburst he had made following the jury delivering its verdicts.
This appeal
In this Court, counsel for the appellant made no complaint as to the individual sentences imposed by the sentencing judge but argued that the orders for cumulation that her Honour made resulted in a total effective sentence which was manifestly excessive. Whilst he conceded that the principle of totality had a somewhat limited application given the engagement of the provisions of the Sentencing Act1991 dealing with serious sexual offending,[2] he said that the end result of the orders for cumulation made by her Honour was a manifestly excessive head sentence and consequently a manifestly excessive non‑parole period.
[2] R H McL v The Queen (2000) 203 CLR 452, 476–7 (McHugh, Gummow and Hayne JJ).
The indictment framed by the prosecutor in this case presented the sentencing judge with an unenviable sentencing task. Her Honour was required to consider 11 separate short episodes of criminality of varying degrees of seriousness and to construct a total effective sentence which reflected that criminality whilst maintaining appropriate proportionality. It is unfortunate that the indictment was as long and as complex as it was. Not only do indictments of this length create problems for sentencing judges, they also complicate trials and increase the risk of error, both at the trial stage and at the sentencing stage.
The sentencing judge’s sentencing remarks cogently set out the matters her Honour took into account in reaching the sentences which she did and the orders for cumulation which she made were clearly intended to reflect the differences in criminality which needed to be demonstrated in respect of each of those charges. However, orders for cumulation must be made having regard to the principle of totality. Serious as the criminality in this case is, it must be punished on a sentencing spectrum which includes sentences imposed for long and sustained sexual abuse of children, as well as those for simpler or more confined abuse. In the circumstances of this case, a head sentence of 11 years and 2 months’ imprisonment is excessive. The principles of sentencing as they apply to the appellant’s case can all be accommodated with a lesser sentence constructed by an adjustment of the orders for cumulation made by the sentencing judge and without disturbing the individual sentences imposed for each offence: Postiglione v The Queen;[3] Director of Public Prosecutions v Grabovac.[4]
[3](1997) 189 CLR 295, 307–8 (McHugh J).
[4][1998] 1 VR 664, 684 (Ormiston JA).
Further, there is something to be said for the argument made by counsel for the appellant in this Court that charges 1 and 2 ought not to have attracted cumulation at all, having regard to the fact that those offences were in themselves necessary prerequisites to much of the serious offending which followed.
As the sentencing judge pointed out in her sentencing remarks, the appellant fell to be sentenced as a serious sexual offender in respect of charges 3 to 6 and 9 to 13. However, her Honour also noted, in accepting a concession made by the Crown, that it was not necessary to impose a disproportionate sentence in this case. In my opinion, cumulation needed to be tempered somewhat more than her Honour did to achieve a total effective sentence proportionate to the specific offending being punished.
The individual sentences imposed on the appellant below should be confirmed. The orders for cumulation, however, should be adjusted in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1
Indecent act with or in the presence of a child under 16
18 months’ imprisonment
2
Indecent act with or in the presence of a child under 16
18 months’ imprisonment
3
Indecent act with or in the presence of a child under 16
12 months’ imprisonment
3 months
4
Indecent act with or in the presence of a child under 16
12 months’ imprisonment
3 months
5
Indecent act with or in the presence of a child under 16
3 years’ imprisonment
12 months
6
Indecent act with or in the presence of a child under 16
3 years’ imprisonment
12 months
9
Indecent act with or in the presence of a child under 16
9 months’ imprisonment
1 month
Charge
Offence
Sentence
Cumulation
10
Indecent act with or in the presence of a child under 16
9 months’ imprisonment
1 month
11
Indecent act with or in the presence of a child under 16
2 years’ imprisonment
6 months
12
Indecent act with or in the presence of a child under 16
2 years’ imprisonment
6 months
13
Rape
5 years’ imprisonment
Base sentence
This results in a total effective sentence of 8 years and 8 months’ imprisonment. A new non‑parole period of 6 years and 6 months should be fixed.
ROSS AJA:
I agree with the orders proposed by his Honour for the reasons that he has given.
BONGIORNO JA:
The order of the Court is that:
1. The appeal is allowed.
2. The sentences imposed below are affirmed but the directions for cumulation and the non-parole period are set aside.
3. The Court directs that 3 months of the sentence imposed on charge 3, 3 months of the sentence imposed on charge 4, 12 months of the sentence imposed on charge 5, 12 months of the sentence imposed on charge 6, 1 month of the sentence imposed on charge 9, 1 month of the sentence imposed on charge 10, 6 months of the sentence imposed on charge 11 and 6 months of the sentence imposed on charge 12 be served cumulatively upon each other and upon the sentence imposed on charge 13, making a total effective sentence of 8 years and 8 months’
imprisonment.
4. A non-parole period of 6 years and 6 months is fixed.
5. All ancillary orders of Judge Wilmoth made 24 February 2011 are confirmed.
It is declared that the period of 609 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
‑‑‑
0
3
0