R v Abbott

[2007] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 319 of 2006

THE QUEEN

v

THEO NORMAN ABBOTT

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JUDGES:	MAXWELL P, EAMES JA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 February 2007
DATE OF JUDGMENT:	27 February 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 32	1st revision, 23 march 2007

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Criminal law – Sentencing – Sexual penetration of child under age of 16 – Whether sentence of 2 years’ imprisonment with non-parole period of 12 months manifestly excessive – History of childhood physical and emotional abuse of offender – Whether psychological damage to offender reduced weight to be given to 10 year age gap between offender (24) and victim (14) – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B J Halpin	Ms A Cannon Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Victoria Legal Aid

MAXWELL P:

1. The delivery of judgment at the conclusion of argument is in no sense to be taken as signifying that counsels’ oral submissions have not been listened to.  On the contrary, the submissions have been very carefully listened to and they have been of considerable assistance.  That we are able to deliver judgment now is only possible because we have had good quality written submissions from both sides.  Written submissions enable this Court to give careful thought in advance to the issues raised by the appeal.  But the oral argument is vitally important.  It enables any provisional or preliminary views formed on the basis of the written submissions to be tested with counsel.  In the process, those views are refined or reconsidered or, quite often, discarded.

1. In my opinion this appeal should be dismissed.  The sole ground advanced is that the sentence imposed was manifestly excessive.  For the reasons which follow, that submission cannot succeed.

1. The appellant pleaded guilty to taking part in an act of sexual penetration with a girl under the age of 16 (to whom I shall refer as A).  The offence is a Class 1 offence under the Sex Offenders Registration Act and it carries a maximum prison sentence of 10 years.  At the time the offence took place in June 2004, A had just turned 14, having been born on 14 May 1990.  The appellant was then 24, meaning that he was ten years older than A.  He had known her for about two years, as he had worked for her father and lived nearby.  He was aware of her age, and hence of the age difference between them, at the time he committed the offence. 

1. The circumstances of the offending were as follows.  The appellant attended a party with two friends.  He went, to use his own words, "just to visit, have a couple of drinks, just to use up the place for a drink".  He took with him eight cans of bourbon.  He had drunk six of those cans by the time he met up with A who, unknown to him, was also at the party.  A had been at a friend's house nearby, where she had consumed nine “Vodka Cruisers”.  That equates to more than a bottle-and-a-half of wine.  A and her friend then decided to attend the party.  When they arrived they were not feeling well, so they went into a bedroom and lay down.  As described by the prosecutor to the trial Judge, the appellant –

"… went into the bedroom when she was there and he lay down on the bed with her.  The other girl left and [A] and Mr Abbott were kissing, fondling, both took off each others clothes and there was vaginal intercourse which took place, lasting about 15 to 20 minutes and she told him to get off her at the end, which he did and then he left the bedroom."

1. A told the police that the appellant had said to her he wanted to have sex.  He denied this in his record of interview and the judge made no finding about that matter.  A said at interview that, before penetration took place, she was scared of what would happen if she told the appellant to stop.  When asked by her friend afterwards, "Did he make you do it?", A said "No, but I didn't want to do it."  The judge noted that the sex was consensual.  Ms Dalziel, who presented a very able argument on behalf of the appellant, argued that this was a very significant matter which was not adequately reflected in the sentence. 

1. When interviewed, the appellant made full and frank admissions to the police.  He conceded that he was well aware of A's age and that having sex with her, given that she was under age, was wrong.  He expressed contrition for his conduct, admitted his guilt and was remorseful.  The sentencing judge expressly took each of those matters into account.  

1. In the interview, the appellant gave the following account of what occurred after he arrived at the party:

"… I noticed A was there and the last couple of months, she’s been messaging my phone.  I was probably messaging back.  And then – yeah.  She said she liked me and I know she was under age but then, I started drinking.  Yeah.  Influence of alcohol.  Went into the room with her.  Yeah.  That's where it took place."

The appellant admitted that he was aware that A had been drinking.  He also said that he was aware of what he was doing despite his own intoxication.  He said:

"I was aware but I didn't worry about what I was doing.  What I was doing wrong, you know ...  I really did like her.  And the alcohol gave me the guts to do what I done."

1. The plea in mitigation placed particular emphasis on the history of physical and emotional abuse experienced by the appellant at the hands of his father.  Having heard the plea, the judge noted that there was no psychiatric or psychological report and expressed the view that the issues which had been raised "ought to be professionally assessed for the purpose of enabling an appropriate sentence to be imposed".  If I might say so with respect, this was an exemplary approach to the sentencing task.  Amidst the pressures of a busy criminal court as the County Court is, his Honour recognised, correctly, that the psychological profile of the defendant before the court was relevant to sentencing and that, in order to perform the sentencing task properly, he needed some independent expert assessment. 

1. In the event, the judge was constrained to order the preparation of a pre-sentence report, which was subsequently provided by Forensicare.  As the judge said in his sentencing remarks, the report -

"noted that the history given reveals a person who has suffered from physical and emotional abuse and subject to restrictive and harsh discipline.  (The clinical psychologist) concluded that you appeared to display the long-term effects of childhood abuse at the hands of your father.  It has resulted in you experiencing some emotional disturbance from that abuse.  This has also affected your interpersonal skills and relationships, and he recommended that you receive some psychological therapy in order to address the negative effects of that childhood abuse as well as alcohol and drug counselling for your substance abuse."

1. No-one could fail to be affected by the account given of the mistreatment of the appellant by his father.  The sustained violence, ridicule (as it was described by the mother) and sadistic infliction of pain beggars belief.  Such mistreatment by a parent would have profound emotional implications for the child.  But, as Eames JA pointed out in the course of argument, there was nothing in the psychologist’s assessment to substantiate the submission that, for sentencing purposes, the appellant should be regarded not as a 24-year-old but as someone so immature that his moral or emotional age was some years younger.  The submission made to this Court was that the ten-year age gap between 14 and 24, which would ordinarily be a significant matter, should have less weight because of the immaturity of the appellant.  There being nothing in the report to support that assertion, the judge did what was appropriate in the circumstances, in taking full account of what was said in the psychologist's report, in the passage that I have just quoted.

1. At the conclusion of the sentencing remarks, the learned judge said this:

"In considering the appropriate sentence, I assess your offending at the lower end of the scale.  The very serious problem, however, facing any sentence I impose is the fact that the female involved was very young, ten years younger than you.  Further, it is apparent that she had consumed a substantial quantity of alcohol on that night and it seemed to me that you took advantage of that situation. 

I agree with the prosecution that the very substantial age differential between you and the young female must result in a prison sentence being imposed despite your cooperation with the police and your early plea of guilty.    

Accordingly, I am sentencing you to two years' imprisonment.  However, I order an early parole because of the circumstances I have referred to and I order that you be eligible for release on parole after serving 12 months.”

His Honour did recommend psychological therapy as well as alcohol and drug counselling.

1. The submission advanced by Ms Dalziel for the appellant is that, taking into account matters personal to the appellant and the circumstances of the offence, the sentence was manifestly excessive.  She submits that a wholly suspended sentence was in the range of available sentences, given the following matters: this was a single occurrence; it happened under the influence of alcohol; it was unplanned and unrepeated; and there was no suggestion that the intercourse was other than consensual.  This was not, as Ms Dalziel pointed out, a case of an older person grooming or targeting the victim in a planned way.  The appellant did not attend the party expecting to see the complainant there; he did not provide the alcohol she had drunk; and he had also consumed enough alcohol himself to impair his judgment.

1. With respect, these points are all properly made and well founded in the material.  But the ground of manifest excess is not an occasion on which to re-argue the plea in mitigation.  The ground of manifest excess will only succeed where it can be shown that the sentence was “wholly outside the range of sentencing options available”[1] to the sentencing judge.  

   [1]R v Boaza [1999] VSCA 126 at [42] per Winneke P.

1. The “range” for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances.  It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.  That is a stringent requirement, difficult to satisfy.  It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance.  Sentencing is not the task of appellate courts, except where clear error is shown.  Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.

1. It is, accordingly, not sufficient to point out that it would have been open to this judge to impose a wholly or partially suspended sentence.  So much may be accepted.  Had the task of sentencing the appellant fallen to me at first instance, I might have acceded to that course.  I express no view one way or the other.  But the question on a sentence appeal is not what this Court, or any member of it, would have done if sentencing the person at first instance.  We exercise a supervisory jurisdiction and intervene only where it is shown that the sentencing judge's exercise of discretion has failed. 

1. I reject the submission that it was not reasonably open to impose the term of imprisonment which was imposed - two years' imprisonment with a minimum of one year.  The sentence was, in my opinion, within the range, though it may properly be regarded as a stern sentence in the circumstances.  The matters to which his Honour referred were, in my opinion, very significant matters.  The complainant was a very young girl indeed, having just turned 14.  The effect on her of this event is profound and long lasting, as illustrated by the victim impact statement.  The difference in age and maturity between a 14-year-old girl and a 24-year-old man is enormous. 

1. The maximum penalty for this offence is 10 years.  As Chernov, JA said in Nguyen[2], in a judgment with which Callaway and Buchanan, JJA agreed:

"The offence … is obviously a very serious one, as is evident from the fact that Parliament has prescribed a maximum penalty of 10 years' imprisonment and has abrogated a defence of consent.  It is apparent that a principal aim of the legislation is to protect children and young adolescents, who are generally vulnerable to persuasive conduct of older and more mature persons, from being sexually abused by them.  This case is not one of consensual sexual behaviour between two young persons of comparable age.  The applicant was more than 50% older than the victim..."

So also in this case, the appellant was more than fifty percent older than the victim.

[2]R v Nguyen (2001) 124 A Crim R 477 at 481.

1. According to the statistics published in the Victorian Sentencing Manual (see table below) a head sentence of two years for this offence is around the middle of the range of sentences imposed.  Of course, the Council's statistics are generalised statistics, shorn of the details of individual cases, and recourse to those details is essential in order to understand why a particular sentence was imposed in a particular case.  Generalised statistics are nevertheless of assistance in identifying the kinds of sentences being imposed in Victorian courts for this offence.

24.9.3.7 - Sexual penetration of child under 16

Subject/Year	99/00	00/01	01/02	02/03
Number sentenced offences	1	23	100	135
Number offences as principal proven offence	1	11	34	50
Number immediate custodial	-	6	17	21
Number wholly suspended	-	1	8	14
Number ICO	-	-	1	2
Number CBO	-	2	2	7
Number fines	-	1	-	2
Number adjourned undertaking	1	1	6	4
Number ‘other’*	-	-	-	-
Percentage immediate custodial	0%	55%	50%	42%
TERMS OF IMPRISONMENT
Lowest sentence	-	12m	1m	1y
Average sentence (not counting life terms)	-	1y,8m	2y,6m	2y,7m
Median sentence	-	1y,8m	2y	2y,6m
90th percentile	-	2y,3m	5y,5m	4y
Highest sentence	-	2y,6m	10y	6y
Number indefinite sentences	-	-	-	-

Last updated: 2 November 2005

© State of Victoria.

1. Ms Dalziel relied on three decisions of this Court in order to make good her submission of manifest excess.  They were respectively Cleary[3], Parfitt[4] and Mark & Elmazovski[5].  In Cleary the head sentence was four years.  The Court of Appeal re-

sentenced Cleary to two years and eight months, but that was not on the ground of manifest excess.  There was specific error and the Court's decision in re-sentencing shows that different judges take different views about these matters.  In Parfitt, the sentence for a single count of sexual penetration of a 14-year-old girl by a 26-year-old teacher's aide was three years' imprisonment with a non-parole period of 21 months.  The appeal on the ground of manifest excess failed.  In Mark & Elmazovski the circumstances were markedly different.  The complainants had actively sought sexual intercourse with the defendants, which evidently explained the decision of the trial judge to partially suspend the sentence.

[3][2004] VSCA 14.

[4][2006] VSCA 91.

[5][2006] VSCA 251.

1. In the course of discussion on the plea, the judge responded to a submission that the appellant be assessed for an intensive correction order by saying: 

"A judge has to impose what after careful consideration that judge thinks is the appropriate sentence, bearing in mind the seriousness of the offending and the protection of the community."

It is clear that the judge approached his task conscientiously, carefully and thoughtfully, and with a proper concern to ensure that all relevant materials relating to the appellant were before him.  There is no basis for this Court to intervene in the sentence imposed.  Accordingly, I would dismiss the appeal.

EAMES JA: 

1. There are many factors personal to the appellant which excite sympathy, as they did with the learned sentencing judge.  The appellant, however, is not a person with an unblemished prior record.  Although his prior offences were neither of a sexual character nor involved violence, they resulted on one occasion in six separate sentences of imprisonment being imposed by a court with respect to six offences of driving whilst disqualified.  Those offences reflected an attitude of disobedience to the law, albeit at the age of 20 years, which was relevant to the sentencing for the present offence because they indicated that specific deterrence was a relevant factor, as was general deterrence a relevant factor for sentencing.  Furthermore, the

consequences of this offence for the victim were profound, as described in her victim impact statement.  I am not persuaded that the sentence imposed by his Honour was outside the range open to him in the circumstances of this case. 

1. For these reasons, and also for the reasons given by the learned President, I agree that the appeal should be dismissed.

HABERSBERGER AJA:

1. I agree that the appeal should be dismissed.  In reaching this conclusion I have borne in mind that, as the learned President has said, the question to be determined on the appeal is whether the sentence imposed was manifestly excessive, not whether the sentence was what a member of this Court would have imposed had he been the judge at first instance.  I do not consider that, in the circumstances of this case, this sentence could be regarded as being outside the range of appropriate sentencing dispositions.

MAXWELL P: 

1. The order of the Court is:

   Appeal dismissed.

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