R v AWF

[2000] VSCA 172

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 317 of 1999

THE QUEEN

v

AWF

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JUDGES:	ORMISTON, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25, 26 JULY 2000
DATE OF JUDGMENT:	27 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 172

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Criminal Law -  Appellant charged with five counts of indecent assault and one count of an indecent act with a child under 16 years -  Offences committed against appellant’s daughter and step-daughter – Appellant sexually abused as a child – Unchallenged expert evidence in support of connection between appellant’s childhood sexual abuse and his later offending conduct – Relevance of childhood sexual abuse to sentencing disposition – Degree of relevance dependent upon the facts of each case – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. S. Langslow	Cole, Birt & Co.

ORMISTON, J.A.:

1. In this appeal I have had the benefit of reading the judgment of Chernov, J.A. in draft form.  With some reluctance I agree that error has been demonstrated and that in all the circumstances the sentences proposed by him should now be substituted for those of the learned sentencing judge.

1. Although carefully setting out the facts and other relevant factors in a manner which could not otherwise be fairly criticised, as Chernov, J.A. has pointed out, nevertheless the learned judge made two errors of present importance, one of fact and the other of law.  The error of fact is carefully demonstrated by Chernov, J.A.  Not merely was there no challenge to the opinion of Professor Ball that there was an association between the appellant's having been personally abused and his tendency, borne out in fact, to abuse his own daughter and stepdaughters, but the appellant's own allegations of abuse were never controverted by counsel for the prosecution in the course of the plea.  Upon the facts so accepted there would seem, on the balance of probabilities, to have been a connection between the appellant's unfortunate childhood and his later aberrant behaviour, at least according to the only evidence before the judge on that issue.  It is therefore difficult to accept the judge's conclusion that the history of the personal abuse of the appellant and the claim that it contributed to or precipitated his offending conduct was not "compelling".  Of course the extent to which these factors operate in the particular case are matters for the sentencing judge to try on the available evidence, but it was not appropriate to say that "any suggestion" of that kind was not compelling, at least so far as the factual basis for the expert opinion was concerned.  One must assume that it was the factual basis which the learned judge was doubting because the damage done to the victims of these attacks had been described by her Honour in these terms:

"The damage done to a young child when sexually interfered with by an adult is…