R v AP

[2009] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 863 of 2007

R

v

AP

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JUDGES:	MAXWELL P and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2009
DATE OF JUDGMENT:	23 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 249
JUDGMENT APPEALED FROM:	R v [AP] (Unreported, County Court of Victoria, Judge Chettle, 23 October 2007)

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CRIMINAL LAW – Appeal – Sentence – Incest – Carnal knowledge – Gross indecency with girl under 16 years of age – Indecent assault – Assault – Sentenced to 14 years’ imprisonment with non-parole period of seven years and six months – Sentencing error conceded by Crown – Direction for cumulation on count 8 exceeded length of sentence on that count – Sentencing discretion reopened – 15 year delay between first complaint and interview of appellant – Appellant aged 77 at time of sentence – Appeal allowed – Resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D G Wraith	Wightons Lawyers
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA:

1. This is an appeal against sentence imposed in the County Court on 23 October 2007.  The appellant (‘AP’) pleaded guilty to 13 counts and was sentenced as follows:

SENTENCE IMPOSED [1]In fact, the serious sexual offender provisions did not apply to count 9.
Count	Offence	Age of Victim	Maximum penalty	Sentence	Cumulation
1	Indecent assault	8	5y	1y
2	Indecent assault	8	5y	1y
3	Indecent assault	8–12	5y	6m
4	Indecent assault	8–16	5y	1y
5	Indecent assault	10–16	5y	6m
6	Act of gross indecency with girl under the age of 16 years	10–15	2y	1y
7	Carnal knowledge of female over 10 by father	10–15	20y	6y	2y
8	Indecent assault	13–15	5y	6m	2y
9	Common law assault	16	2y	1y	1y
10	Carnal knowledge of female over 10 by father	16	20y	7y	Base
11	Carnal knowledge of female over 10 by father (rep)	16–19	20y	6y	2y
12	Incest (rep)	19–29	20y	6y
13	Incest (rep)	29–30	20y	6y
Total effective sentence:    14y Non-parole period:            7y 6m AP was sentenced as a serious sexual offender in respect of counts 3-13 inclusive.[1]

1. The victim of the sexual abuse was AP’s daughter.  As appears from the table, she was aged eight when the first indecent assault occurred and was in her 20s when the acts of incest constituting counts 12 and 13 occurred.  The summary of the facts provided by the Crown to the sentencing judge appears as appendix 1 to these reasons.

Crown concession

1. At the commencement of the appeal hearing, senior counsel appearing for the Crown drew attention to an error in the orders for cumulation.  As appears from the table above, the sentencing judge imposed a sentence of six months’ imprisonment on count 8 but purported to direct that two years of that sentence be served cumulatively on the sentence imposed on count 10.  That period of two years, when added together with the other periods directed to be served cumulatively, produced the total effective sentence of 14 years.  Senior counsel conceded – properly, in our view - that this was an error of substance, which must be regarded as vitiating the sentencing decision.  It followed, he conceded, that the sentencing discretion was re-opened.

1. Under s 568(4) of the Crimes Act1958 (Vic), however, the question for this court is whether ‘a different sentence should have been passed’. If not, the court must dismiss the appeal, notwithstanding that error has been identified. When asked by the court, senior counsel for the Crown said that, in the circumstances, the Crown would not be contending that no different sentence should be imposed.

1. In explanation of that position, Mr Ryan drew attention to the fact that the victim had first complained to the police about the offending in August 1989.  According to the Crown summary of evidence:

It appears that for reasons unknown, this statement was not acted on, and the defendant was never formally interviewed in relation to the allegations.

…

The victim made reference to this first statement, whilst making a further statement to a member … on 18/11/2004.  Inquiries made … uncovered the first statement in a file under the victim’s name.  There is no further information in the file regarding what action was taken at that time.

This matter was drawn to the attention of the sentencing judge by the prosecutor during the plea and was commented on by his Honour.  Defence counsel did not, however, direct any submission to his Honour regarding the delay, and the matter was not referred to in the reasons for sentence.  Nevertheless, the appellant’s full statement of grounds of appeal contends that the judge erred in that he ‘gave no weight or insufficient weight to delay in the particular circumstances of this case.’

1. In our view, the delay was a significant matter, in view of AP’s age.  Although AP was unaware of the 1989 complaint to the police, the delay of fifteen years before the second complaint was made meant that, by the time he came to be sentenced in October 2007, he was 77 years old.  He is now 79.  Had these serious matters been investigated promptly, as they should have been, AP would have been a much younger man when faced with prosecution and, ultimately, imprisonment.

1. At the same time, this offending was extremely serious, as the sentencing judge correctly said.[2]  For more than 20 years AP subjected his daughter to repeated sexual and physical abuse.  As the judge said:

That abuse was of a depraved and disgusting nature. [AP] grossly betrayed the duties of a father and destroyed [his] daughter’s life.[3]

…

[His] crimes were protracted, continuous, brutal and repulsive.[4]

[2]R v [AP] (Unreported, County Court of Victoria, Judge Chettle, 23 October 2007), [36].

[3]Ibid [7].

[4]Ibid [36].

1. His Honour correctly treated AP’s age at the time of sentence as a ‘predominant’ sentencing factor.

At 77 years of age any sentence I impose is likely to be described as crushing.  Your age is clearly a relevant sentencing consideration but cannot be allowed to be a justification for an unacceptable [or] inappropriate sentence.  I have reduced both the head sentence and the minimum term I am about to impose to give full weight to your age.[5] 

[5]Ibid [35]: see R v Yates [1985] VR 41; R v Bazley (1993) 65 A Crim R 154.

1. Indeed, in setting the non-parole period at just over 50 per cent of the total effective sentence, the sentencing judge adopted a submission advanced on the plea by defence counsel,  who had said:

[T]he minimum term could be geared by you to satisfy those considerations [of age and ill health], with the maximum term of course, as always, as you are required to, general and specific deterrence and denunciation of the conduct.

Conclusion

1. But for the sentencing error which the Crown identified, this appeal would very likely have failed.  The learned judge addressed all of the critical issues in his reasons and – in view of the very serious and protracted nature of the offending – it would have been very difficult for the appellant to show that the sentence was outside the range reasonably open to the judge in the circumstances.  In view, however, of the Crown concession – both as to error and as to the important issue of delay, which the defence did not press on the plea – we consider that the appeal should be allowed and AP resentenced as set out in the table below. 

RESENTENCING
Count	Offence	Age of Victim	Maximum penalty	Sentence	Cumulation
1	Indecent assault	8	5y	1y
2	Indecent assault	8	5y	1y
3	Indecent assault	8–12	5y	6m
4	Indecent assault	8–16	5y	1y
5	Indecent assault	10–16	5y	6m
6	Act of gross indecency with girl under the age of 16 years	10–15	2y	1y
7	Carnal knowledge of female over 10 by father	10–15	20y	6y	2y
8	Indecent assault	13–15	5y	6m
9	Common law assault	16	2y	1y	1y
10	Carnal knowledge of female over 10 by father	16	20y	7y	Base
11	Carnal knowledge of female over 10 by father (rep)	16–19	20y	6y	2y
12	Incest (rep)	19–29	20y	6y
13	Incest (rep)	29–30	20y	6y
Total effective sentence:    12y Non-parole period:            6y 6m AP is sentenced as a serious sexual offender in respect of counts 3-8, and 10-13 inclusive.

APPENDIX 1

Crown summary

Count 1 – Indecent assault

1. The victim (K), then aged eight years, was called into her parents’ bedroom by her father (AP), who was in bed.  Her mother was in the shower at this time, which was in the bathroom across the hall from the bedroom.  K got into the bed, and AP pulled her close to him and she could feel his erect penis digging into her back.  AP then put his hand down the front of K’s pyjama pants and underpants, and inserted his fingers into the entrance of her vagina.  At the same time AP was caressing K’s nipples with his other hand.  When AP heard the water in the shower stop running, he told K to get out of the bed.

Count 2 – Indecent assault

1. A week later AP called K into his bedroom again whilst her mother was in the shower.  K got into bed with AP and he caressed and touched her vagina.  When the water in the shower stopped running AP pushed K out of his bed.

Count 3 – Indecent assault

1. When K was aged between eight and 12 years, she was in bed with AP and he touched and rubbed her breasts.

Count 4 – Indecent assault

1. When K was aged between eight and 16 years, AP forced K’s hand onto his penis.  K’s hand was not big enough to hold AP’s penis, so he placed his hand over hers and made her rub and pull him until he ejaculated.  This hurt K’s hand.

Counts 5, 6 and 7 – Indecent assault; act of gross indecency with a girl under the age of 16 years; carnal knowledge of a female over 10 years by father

1. One evening when K was aged between 10 and 16 years, and her mother was at church, AP called K into his bedroom.  He made her stand in front of a wardrobe that contained two full length mirrors for doors.  He removed her jumper and T shirt and made her hold her arms above her head.  AP stood directly behind K and fondled her breasts (Count 5).

1. AP removed his own shirt and singlet, turned K around and made her rub her hands across his chest and nipples, whilst he was undoing the zipper on her jeans.  AP then made K take one leg out of her jeans and underpants.  AP had his erect penis out through the zipper of his jeans.  As K was bending down to take down her jeans, AP forced his erect penis into her mouth and immediately ejaculated and made K swallow his semen (Count 6).

1. AP then pushed K onto his bed and penetrated her firstly with a finger and then with his erect penis.  K initially told AP she didn’t want to, but AP continually said to her, ‘yes you do, you love it’, until K finally said this back to him.  AP was also saying to the victim, ‘you really want it, you really love it’.  AP had sex with K for approximately 10 minutes.  During this time he was licking her face and trying to tongue kiss her.  AP ejaculated inside K’s vagina (Count 7).  He then got up off K and with an angry voice said to her, ‘go and clean yourself up, go and have a shower’.

Count 8 – Indecent assault

1. When K was aged between 14 and 15 years of age, AP took her for driving lessons.  Whilst K was driving he would grab her on the breast, usually when she was turning a corner.  He would say ‘turn right’ or ‘turn left’ and then grab that particular breast.  He called K’s breasts strawberry and vanilla.  AP would also put his hand between K’s legs whilst she was driving.

Counts 9 and 10 – Common law assault; carnal knowledge of a female over 10 years by father

1. K was 16 years of age and six months pregnant.  At this time she had moved out of the family home and was living in a de facto relationship in a caravan park.

1. K went to her parents’ house to collect something, thinking her mother would be at home.  AP answered the door and grabbed K by the hair and arm.  He threw K up against the wall and slapped her face with an open hand.  AP then punched K in the stomach with a clenched fist and knocked her to the floor (Count 9).

1. AP pulled K’s track suit pants down to her ankles and spread her legs apart.  He removed his penis through the zip on his pants and penetrated the victim’s vagina, ejaculating inside her (Count 10).  When he had finished, AP got up and walked away.  K then left the house.

Counts 11, 12 and 13 – Carnal knowledge of a female over 10 years by father; incest

1. During the tape recorded interviews, AP admitted to having had sex with K on at least six occasions.