R v AWF
[2000] VSCA 172
•27 September 2000
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.:
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.
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 inestimable. Many such children end up sexually crippled for life, and for many the results are manifested in all sorts of ways which bespeak of a damaged character. These facts are well known ... There can be no doubt that your crimes have had a lasting emotional effect upon your victims."
One must assume therefore that the sentencing judge had accepted that abuse of this kind can have very serious consequences even though at one stage she said that it was "not the role of the court to sentence according to supposition or psychiatric theory". From the whole of her observations I would conclude that she was prepared to accept the drastic consequences which may flow from abuse of this kind, but was unwilling to accept the facts as proved in the particular case so far as the appellant was concerned. As I have said that was not in issue on the plea and the judge was therefore in error.
The second factor about which complaint was made was that the learned judge on at least two occasions said that the appellant's childhood experiences, "whatever they may have been" were not relevant to the appropriate sentencing disposition on this occasion. It is hard to conceive that evidence of the present kind which might go to explain his behaviour, though in those circumstances not to excuse him, should be here excluded as irrelevant. The appellant's criminality, his capacity for rehabilitation, the extent to which he is a proper subject for specific deterrence may each be affected by an understanding of what led to the character defect exhibited in this unforgivable extended episode of sexual misbehaviour. Necessarily in each case the importance of an offender's background will vary according to its connection with the offences charged and the extent to which the Court may properly take that factor into account. Almost without exception it cannot be seen as excusing the relevant behaviour, but, if it leads to a psychiatric or psychological condition which takes away from the criminality of that behaviour, then it may have some greater significance.
There is in fact very little authority upon the significance of childhood sexual abuse as a factor in sentencing. At the least the consensus of views expressed by judges is to the effect that such evidence is relevant, but its relevance and persuasiveness will vary greatly from case to case, especially where the charges are of the most serious kind. A recent summary of authorities appeared in the unreported decision of R. v. Anthony George Reid[1] in which a number of unreported New South Wales cases were referred to. So in a case of both sexual assault and murder Hunt, C.J. at C.L. said in R. v. Lett[2]:
[1]Unreported, Court of Criminal Appeal (N.S.W), 24 July 1998.
[2]Unreported, Court of Criminal Appeal (N.S.W.), 27 March 1995.
"The link no doubt helps to explain why the offender committed the offence, but it could hardly be said to excuse it. Minds may well differ as to whether such a history should mitigate the offence of child sexual abuse committed by the offender, but I am quite unable to see how it could possibly mitigate the offence of murder ... ."
Later in R. v. Balfour[3] the Court there held in the circumstances that it was unable to conclude that the sentencing judge had made an error by failing to extend leniency to the applicant because of childhood sexual molestation. On the other hand in R. v. AB[4] Sperling, J. (with whom Gleeson, C.J. agreed) said[5] that sexual molestation by teachers during an applicant's adolescence was a circumstance favourable to the applicant. So in Reid James, J. (with whom Mason, P. and Grove, J. concurred) said:
"In my opinion, if it is established that a child sexual assault offender was himself sexually abused as a child and that that history of sexual abuse has contributed to the offender's own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty as reducing the offender's moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge."
He continued by saying that it could also be relevant to an offender's prospects for rehabilitation, but that was not the only way in which that factor might be taken into account.
[3]Unreported, Court of Criminal Appeal (N.S.W.), 23 July 1996.
[4]Unreported, Court of Criminal Appeal (N.S.W.), 7 July 1997.
[5]at p.38.
At about the same time, in my judgment in R. v. Lomax[6] (in which Winneke, P. substantially concurred and Hedigan, A.J.A. concurred), I said[7], of a finding that the applicant had been subject to sexual abuse by his father and that the psychological harm had led to his becoming an admitted paedophile, requiring intense treatment, that: "These matters should be given appropriate weight in accordance with what was said in R. v. Anderson[8] and R. v. Tsiaras[9], but this cannot be said to be one of those cases where the applicant's psychological condition can substantially excuse his behaviour, nor is it a case where general deterrence may be ignored." So I concluded that "his history and psychological condition provide[d] an explanation, but by no means a true excuse, for that behaviour". Earlier decisions in which such evidence appeared to be treated as having some relevance were: T[10]; G[11]; Woods v. R.[12]; R. v. Gallagher[13]; and R. v. Boyle[14]. See also Fox and Freiberg on Sentencing: State and Federal Law in Victoria (2nd ed.) para 12.415.
[6][1998] 1 V.R. 551.
[7]at 560.
[8][1981] V.R. 155.
[9][1996] 1 V.R. 398.
[10](1990) 47 A.Crim.R. 29.
[11](1989) 98 F.L.R. 32 at 38.
[12](1994) 14 W.A.R. 341 at 349.
[13]Unreported, Court of Appeal, 2 July 1997.
[14]Unreported, Court of Appeal, 12 September 1996.
Clearly evidence of this kind is relevant, certainly where there is no dispute as to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender's subsequent misbehaviour. One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.
I would therefore conclude that the judge was in error in reaching the contrary conclusion. In giving effect to what must be treated as relevant evidence I
would agree with what Chernov, J.A. says as to the necessary conclusions to be drawn in this case. I would merely add a warning that evidence generally of this kind ought not to be adduced with some general expectation that there will be a substantial reduction for that reason in every set of circumstances. Every case will vary and a balance will always have to be struck between properly sentencing an offender for what in many cases are exceptionally serious crimes and the need to take some account of the circumstances which may have led to that kind of behaviour but for which the offender was not fully responsible.
After some hesitation, I would agree with the individual sentences proposed in the present case. If the learned judge did fix upon the sentences originally imposed without having regard to this aspect of the appellant's personal history, then I would have thought that the sentences imposed at least on counts 2, 3 and 5, would have been lenient. However in all the circumstances I am content with the overall disposition now proposed by Chernov, J.A. and the other related orders which he proposes. The appeal should therefore be allowed.
BUCHANAN, J. A.:
I would allow the appeal for the reasons stated by Chernov, J.A. and re-sentence the appellant as his Honour has proposed.
CHERNOV, J.A.:
The appellant, who is now aged 49, pleaded guilty in the County Court at Melbourne on 18 November 1999 to a presentment alleging five counts of indecent assault and one count of an indecent act with a child under the age of 16 years allegedly committed by him between 1 January 1985 and 31 March 1996 against his only daughter of his first marriage and his stepdaughter by his second marriage. During the period in question the appellant was aged between 35 and 45 years.
Counts 1 to 4 alleged indecent assaults in relation to his daughter between 1985 and 1989 when she was aged between 12 and 15 years. Counts 5 and 6 alleged respectively the commission by him of an indecent assault and of an indecent act on his stepdaughter between 1991 and 1996 when she was aged nine and 14 respectfully. All offences, save the one alleged in count 6, carried maximum penalties of five years; the offence alleged in count 6 carried a maximum of 10 years.
Her Honour heard a plea in mitigation made on the appellant’s behalf in the course of which reports of Professor Ball (who also gave evidence) and Ms Jenny Dwyer were tendered. Evidence was also given for the appellant by his sister, and by his de facto wife (“present wife”). The Crown also filed a victim impact statement of the appellant’s daughter. It was common ground that the appellant had no relevant prior convictions. It was contended on his behalf that the appropriate disposition would be a non-custodial sentence such as a Community Based Order or an Intensive Correction Order. Hence, it was submitted that her Honour should order, pursuant to s.96 of the Sentencing Act 1991, that a pre-sentence report be prepared. The learned judge acceded to that submission and made the order sought. As a result, in December 1999 a pre-sentence report of Ms Jackie Caruso of 30 November 1999 was produced to the court and to the parties. It assessed the appellant as being suitable for an Intensive Correction Order and a Community Based Order. It recommended that a special condition be attached to any Community Based Order that the appellant participate in the CORE Sex Offender Supervision Program.
On 13 December 1999 her Honour sentenced the appellant to be imprisoned for a total effective term of 5 years and 6 months and fixed a non-parole period of 4 years. Her Honour imposed sentences of 9 months’ imprisonment on count 1, 18 months on each of counts 2 and 3, 2 months on count 4, 18 months on count 5 and 4 months on count 6. Her Honour treated the appellant as a “serious offender” for the purposes of sentencing in respect of the offences in counts 3 to 6 inclusive. She directed that 15 months of the sentence on count 2 be served cumulatively upon the sentence imposed on count 1, and “confirmed” that, by reason of the operation of s.6E of the Sentencing Act 1991, the whole of the sentences imposed on counts 3 to 6 inclusive be cumulated upon the sentence on count 2. Her Honour recommended that the appellant be referred for assessment and treatment under any relevant sexual offender program and that this matter be brought to the attention of the Parole Board at the relevant time. Her Honour also ordered pursuant to s.464ZF(2) of the Crimes Act 1958 that the appellant undergo a procedure for the taking of a forensic sample.
By notice of application for leave to appeal against sentence dated 15 December 1999, the grounds of which were amended by leave of the Registrar granted on 21 March and 18 July 2000, the appellant sought leave to appeal against the sentence on 13 grounds. On 22 March 2000 the appellant was granted that leave.
I now turn to summarise briefly the circumstances relating to the offending conduct and other relevant events. During the year 1985, when the appellant was separated from his wife and lived with his daughter who was then aged 12, he requested her to go into bed with him, which she did. He was naked and said to her “I want to fuck you” as he attempted to lift her nightie. She resisted and repeatedly tried to pull her nightie down. The appellant lay on top of her, pinning her arms to her side. The complainant struggled and turned away and the appellant eventually gave up. The appellant told the police that whilst he could not recall the specific incident or of having used the particular words alleged, he agreed that the account was consistent with his behaviour towards his daughter at the time. This event formed the basis of count 1.
Some time in 1987 the appellant and his daughter, who was then aged 14, travelled to Buchan and stayed in a hotel. Whilst naked, the appellant got into bed with her, lay on top of her and held her down whilst she was struggling. He simulated sexual intercourse by rubbing his erect penis on her leg and ejaculating on it. These acts were the basis of count 2.
Count 3 alleged that the appellant indecently assaulted his daughter during 1987 at their home when she was lying on the couch. He allegedly placed his hands under her dress, placed his fingers in her vagina and moved them around until she reached orgasm. In his record of interview the appellant said “I can’t remember that particular one, but there were times like that, yes”.
In about 1989 the appellant and his present wife began to live together in a de facto relationship in the appellant’s house. She had two children by a prior marriage, one of whom was a girl. The evidence before her Honour was that the relationship, including the sexual relationship, between the appellant and his present wife was sound and that they eventually had a daughter. When the present wife and her children moved in with the appellant, he converted the garage at the premises into a bedroom for his daughter. Notwithstanding his relationship with his present wife, the appellant again engaged in offending behaviour against his daughter in the course of 1989 in her garage/bedroom. He placed his hand on her breast, over her clothing. She said that she did not like that and left the room. Again, in the interview with the police, the appellant said that although he did not recall the specific incident, he conceded that he engaged in this type of activity on many occasions. This event formed the basis of count 4.
In 1989 the appellant’s daughter complained to the police about his offending behaviour towards her. When confronted with this complaint, the appellant denied any wrongdoing. As a result, the daughter made a statement that she did not wish to proceed with the court case against the appellant but maintained that her allegations against the appellant were true.
The appellant later explained to Professor Ball that he committed the offending acts on his daughter during a time when he was under stress due to the break-up of his marriage and when he was drinking heavily. It is convenient to note at this point that he told Ms Caruso that he did not relate his alcohol consumption to the breakdown of the marriage or to his offending behaviour. Similarly, no mention was made in Ms Dwyer’s report of any claim by the appellant that there was any relationship between his offending behaviour and his drinking or stress arising from the break-up of his marriage.
Be that as it may and notwithstanding an apparently happy relationship with his present wife, the appellant indecently assaulted his stepdaughter in 1991 when she was approximately nine years old. This offending behaviour was the subject of count 5. It was alleged that on two occasions he entered her bedroom at night, after her mother had put her to bed. On one occasion he put his hand under the blankets and placed it on her breasts. On another occasion he placed his finger inside her vagina. The appellant conceded that he touched his stepdaughter’s breasts on many occasions. He said that he touched her vagina on a few occasions but he stated that he only penetrated her vagina once by accident and immediately removed his finger.
Count 6 alleged that in 1996 the appellant wilfully committed an indecent act on his stepdaughter when she was approximately 14 years of age. It was alleged that he approached his stepdaughter from behind and placed his hands on her breasts. As a result, she moved to avoid any further contact. That event formed the basis of count 6. The appellant said that he did not recall this specific incident, but conceded that he had behaved in this manner towards his stepdaughter many times.
In 1997 the appellant’s stepdaughter complained to her mother about his offending behaviour towards her and this was brought to the attention of the Department of Human Services (“the Department”), but, at that stage, the appellant denied any wrongdoing and the complaint was not pressed. In early 1998, however, the appellant effectively admitted to his present wife that he had offended against her daughter and against his first daughter. As a result, the couple consulted their general practitioner who referred the appellant to Dr. Ibraham for treatment. The doctor also reported the matter to the Department which effectively told the appellant that he should not live in the same house as his stepdaughter. The appellant acceded to that direction and has been living with his sister since that time. In about April 1999 the present wife could not locate the appellant. She became concerned about his welfare because he had written to her about his depressed state in the course of which he implied that he might commit suicide. As a consequence, she spoke to the police asking for their assistance to locate him and in the course of that told them about the incidents with the young girls. It is in these circumstances that they became involved, interviewed the appellant and eventually charged him with the offences in question.
The appellant had a number of therapy sessions with Dr. Ibraham, but as her Honour noted, neither he nor his general practitioner provided verifying material to the court. In about July 1998 the appellant saw Professor Ball, a psychiatrist, but the court was not told on how many occasions. In early 1999 he attended therapy sessions with a psychologist and then switched to attending the Bouverie Centre for psychotherapy and by the end of that year underwent ten therapy sessions there. They included six individual sessions between March and May and four further sessions, including two with his wife, from October to November. The reports to which I have referred confirm that the appellant has the strong support of his present wife and his sister and that he is genuinely committed to returning to a normal life with his family.
The appellant told the authors of the reports to which I have referred that when he was a child, he (and his siblings) were sexually abused by a violent and domineering stepfather over a period of two years. The three reports tendered to the court disclose that usually there is a link between the offending behaviour of the sort engaged in by the appellant and the victimisation of the offender as a child. But it is also clear that the experts considered that the appellant was at some risk of re-offending against young adolescent girls. Ms Dwyer emphasised that although the appellant had admitted the offending conduct, he had not yet fully realised the detrimental impact it had had on his victims and his responsibility for it. Thus, she pointed out, he first denied the conduct and later, after having admitted it, blamed others for it. For instance, he blamed his first wife in respect of his offending against their daughter and he has held the stepdaughter partly responsible for his offences against her and continues to feel resentment and anger towards them. Nevertheless, the evidence gives reason to be guardedly optimistic that the treatment proposed for the appellant will bring about his rehabilitation in due course, given his commitment to undertake it and the supportive environment which is available to him.
I now turn to deal with the submissions made by Mr. Langslow who appeared for the appellant. For reasons which will become apparent later, it is appropriate to consider first his submissions in relation to grounds 6 and 7 which are, to some extent, inter-related. It was argued under ground 6 that her Honour erred in treating the appellant’s childhood victimisation as irrelevant to the sentencing process and ground 7 alleged that her Honour erred in finding that the appellant had not established, on the balance of probabilities, that he had been sexually abused as a child.
It is convenient, at the outset, to dispose of the submissions made in relation to ground 7. It was contended by Mr. Langslow that her Honour made a finding that the appellant’s alleged childhood abuse was not established. In my opinion, however, a fair reading of her Honour’s sentencing remarks shows that she stopped short of making such a finding and merely expressed a reservation on the issue. In any event, it is not necessary to decide this point because her Honour assumed for sentencing purposes that the appellant was victimised during his childhood although she went on to say that this was not relevant to the appropriate sentencing disposition in this case. It seems that the reason why her Honour came to that view was that she was not satisfied that it had been established that “your offending conduct is attributable to, or explained by, your alleged childhood experiences”.
In my opinion, in coming to those conclusions her Honour committed the following sentencing errors.
First, her Honour erred in concluding, in effect, that it was not established on the balance of probabilities that the appellant’s offending conduct was attributable to or explained by his childhood experiences. It seems to me that this error arose from her Honour’s misunderstanding of Professor Ball’s evidence and from her apparent failure to take into account the evidence of Ms Dwyer on this issue. Her Honour said that Professor Ball did not offer “any particular” explanation of the appellant’s offending conduct other than “to note that he often sees persons who have been abused in childhood become abusers themselves in adulthood.” In my view, the totality of Professor Ball’s evidence plainly shows that he did proffer an explanation for the appellant’s offending behaviour. According to his evidence, one of the circumstances that explained the behaviour was the appellant’s victimisation during childhood. I turn briefly to summarise the relevant evidence.
In his report, Professor Ball stated, after referring to the appellant’s victimisation, that it was well known that, for complex reasons, “there is an association between having been personally abused and the tendency to abuse”. In his evidence-in-chief, he said much the same, emphasising that abuse tends to run in families and explaining that childhood abuse results in failure by the abused young person to learn normal inhibitory controls and boundaries. He later said: “So that I think these factors appear to have contributed to [the appellant’s] problems”. A little later still, he said “I think it is clear that he has been affected by his earlier experiences ...”. The relevant cross-examination of Professor Ball by the prosecution indicates that it accepted or assumed that the appellant was sexually abused when he was a child and that, at least in part, this explained his offending conduct. The thrust of the cross-examination was directed to establishing that, in the light of that background, the appellant might re-offend. In the course of that cross-examination, Professor Ball effectively repeated his view to which I have referred earlier about the link between victimisation and offending conduct saying again that it is common that early experiences of sexual abuse appeared to lead to a failure to develop appropriate inhibitions and led to offending conduct in later life.
Near the end of his evidence, her Honour sought to clarify “one matter” and asked, in effect, what significance, if any, was to be placed on childhood abuse followed by the victim becoming the abuser in adult years, given that not all males and females who were abused in childhood become abusers in adult life. The witness responded in the following terms:
“There is no doubt in my experience ... that there is an association between the experience of having been abused in childhood and the possibility of offending behaviour and abuse by the victim down the line. ...”
Professor Ball went on to say that the problem was that it was not known “for sure” how many children are abused but he believed that the number was much greater than the figures suggest. What is known, he said, is that of those that are reported “a variable proportion subsequently offend, by no means all. It is not a black and white situation, so that it is not a simple linear equation ...”. But he went on to opine that in the case of the appellant, his childhood abuse was one of a number of compounding problems which was “relevant” to his situation. In response to her Honour’s observation that “it still seems to be very uncertain”, Professor Ball said that there can be no certainty that because childhood abuse had been perpetrated on a person that that person will not turn out “alright”, but he maintained that there was an association between the two sets of events.
It seems to me that her Honour interpreted what Professor Ball said about there being no certainty that every sexually abused child becomes an offender as detracting from his often stated opinion that the appellant’s childhood abuse was a factor that contributed to his offending. In my view, the totality of Professor Ball’s evidence amounts to much more than “noting”, as her Honour put it, that “he often sees persons who have been abused in childhood, become abusers themselves in adulthood” and does not justify her Honour’s view that Professor Ball did not offer “any particular” explanation for the appellant’s offending conduct. In my opinion, he clearly did and her Honour has not given a reason why his explanation should be rejected. Ordinarily, where evidence is uncontradicted or not contested, is inherently reasonable and probable and conclusive of the matter, the court is bound to accept it. (Hardy v. Gillette[15]; Read v. Nerey Nominees Pty. Ltd.[16]; Repatriation Commission v. Reid[17]). Here, the evidence was not only not uncontradicted and unchallenged, the prosecution positively adopted it and relied on it as a basis of its cross-examination of Professor Ball. Moreover, the evidence was, in my view inherently reasonable and probable and, in the circumstances, was conclusive of the issue. In the circumstances, the evidence could not be just disregarded.
[15][1976] V.R. 392 at 396-7
[16][1979] V.R. 47 at 52
[17](1984) 54 A.L.R. 157 at 162-3
Not only did her Honour wrongfully not act on Professor Ball’s evidence, she appears to have disregarded Ms Dwyer’s unchallenged opinion which was expressed in her report that “there appeared to be clear connections between [the appellant’s] offending and his own victimisation”. I also note that Ms Caruso in her report noted Ms Dwyer’s views and, presumably, took them into account in her assessment of the appellant.
In the circumstances, therefore, her Honour erred in saying that there had been a failure to establish on the balance of probabilities that the appellant’s offending conduct was explained by his childhood experiences notwithstanding that such an explanation was not the whole of the explanation for his offending conduct.
Secondly, her Honour erred in concluding that the appellant’s childhood experience was irrelevant to her sentencing considerations. In my view, given the evidence to which I have referred, the fact that the appellant was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender’s personal circumstances and thus, goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct. Moreover, what weight is to be given to it is another matter. But that such a factor is relevant to sentencing consideration is, to my mind, clear. That this is so was recognised by Hulme, J., with whom Ireland and Barr, JJ. agreed in R. v. Reynolds[18] where his Honour said this[19]:
“... One of the factors which the judge was asked to take into account in the respondent’s favour is that he himself has been subjected to sexual abuse while young. This is obviously a matter which should be so taken into account to an appreciable degree but courts cannot regard it as excusing what occurred.”
[18]Unreported, 7 December 1998, Court of Criminal Appeal (N.S.W.).
[19]on p.2
It is trite that her Honour’s sentencing errors have enlivened this Court’s jurisdiction to re-sentence the appellant. Before I deal with this, however, I mention for completeness that, in my view, there is no substance in any of the other grounds argued, possibly other than the contention that was argued under cover of ground 11.
For instance, the argument put forward under grounds 2 to 5, 8 and 9 that her Honour failed to give due weight to the mitigatory factors identified in those grounds is, in my opinion, without basis. The grounds were, as Mr. Langslow agreed, essentially particulars of ground 1 which claimed that the sentence was manifestly excessive. In my view, however, the sentence of 5½ years’ imprisonment cannot reasonably be regarded in the circumstances of this case as being outside the range of sentences available to her Honour, given, inter alia, the seriousness of the offending conduct (particularly in relation to the offences charged in counts 1 to 3), the period over which the conduct took place, the appellant’s denial on two separate occasions when he was confronted with his behaviour and the lasting effect of his conduct on the victims. Notwithstanding the personal circumstances of the appellant and his efforts to rehabilitate himself and the strong support that he enjoys from his present wife and his sister, the aggregate sentence imposed by his Honour could not, in all the circumstances, be reasonably regarded as outside the relevant range.
I was initially attracted by Mr. Langslow’s argument under cover of ground 12 that her Honour failed to apply the principle of totality to the aggregate sentence and consider whether it justly reflected the criminality of the appellant’s offending conduct. Under the same ground Mr. Langslow also submitted that her Honour’s direction for cumulation of 15 months of the sentence in respect of count 2 upon the nine months’ sentence imposed in respect of count 1, was manifestly excessive.
It was Mr. Langslow’s case that her Honour had regard to the principle of totality only for the purpose of determining how the first two sentences related to one another in order to decide what cumulation should be directed in respect of them. Had her Honour in fact considered the principle of totality only in the limited way contended for, in my view, her sentencing discretion would have been vitiated. As Charles, J.A. said in R. v. Connell[20]:
[20][1996] 1 V.R. 436 at 441
“It is equally well-established that one of the considerations a sentencing judge must take into account is the principle of totality which requires a judge who has passed a series of sentences to review the aggregate sentence and to consider whether the aggregate is ‘just and appropriate’, and to look at the totality of the criminal behaviour and decide what is the appropriate sentence for all the offences: See Mill v. R. (1988) 166 C.L.R. 59 at 62-3; Thomas, Principles of Sentencing, 2nd ed., 1979, at 56-7. In Cowburn, supra, the Court of Criminal Appeal in sentencing the prisoner as a ‘serious sexual offender’ on various counts, applied the principle of totality to achieve some concurrency between the sentences imposed for the rape and burglary offences there in question.”
In the course of his argument, Mr. Langslow analysed the sequence and the way in which her Honour constructed the sentences. First, her Honour considered whether she should exercise her discretion to alter the direction contained in s.6E of the Sentencing Act 1991 by ordering that the sentences imposed in respect of counts 3 to 6 (on the basis that the appellant was a “serious offender”) should not be wholly cumulated. Then, after imposing sentences on each of the six counts, her Honour said this:
“The court has to consider how the first two sentences relate to each other and in doing so, apply its principles relating to concurrency, cumulation, totality and proportionality. In applying the totality principle, the court has to ensure that the aggregation of sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.” [Emphasis added]
A little later, her Honour said that, “in the circumstances applying those principles (which include totality)” and other factors, she considered it appropriate to make the order of cumulation to which I have referred earlier. Her Honour concluded that part of her sentencing remarks by confirming that the sentences on counts 3 to 6 were to remain cumulative.
Mr. Langslow submitted that the context and the order in which her Honour imposed the sentences amply demonstrates that her Honour did not apply the principle of totality to the aggregate sentence.
Although, as I have said, I was initially attracted to Mr. Langslow’s argument, I have concluded that it is not sound. Notwithstanding that her Honour did not, in terms, say that she analysed the adequacy of the aggregate sentence by reference to the principle of totality, in my opinion, looking at the sentencing remarks as a whole, it seems fairly clear that she did so. Her Honour made it sufficiently clear that she well understood that the principle is to be considered in respect of the “aggregation of sentences” and not in respect of the aggregation of just some of them. The mere fact that her Honour summarised the relevant principles in the context of her consideration of the appropriate relationship between the first two sentences and did not return later to say specifically that she applied the principle of totality in the context of the aggregation of all the sentences, does not mean that she did not do so. In all the circumstances and having regard to the presumption of regularity (R. v. Sener[21]; R. v. Watts[22]) her Honour in fact did what she said she was bound to do, namely, apply the principle of totality to the aggregate of all the sentences.
[21][1998] 3 V.R. 749 at 752
[22][1998] 4 V.R. 244 at 247
Ground 11 as it was finally formulated and as it stood immediately prior to the hearing of the appeal, alleged that her Honour failed to accord the appellant natural justice. The claim was to the effect that, having called for a pre-sentencing report because of its relevance to a non-custodial disposition and having received the report which, in effect, favoured such a disposition, her Honour decided to impose a custodial sentence but failed to tell counsel for the appellant that, in the circumstances, she should make further submissions to her Honour on the question of the appropriate sentencing disposition. Thus, it was said, counsel was denied the opportunity of meeting her Honour’s view as to what was the appropriate sentencing disposition. In my view, this ground is misconceived. It is plain from the material that her Honour called for a pre-sentencing report at the request of the appellant’s counsel. It is also apparent that her Honour made it clear, when acceding to the submission of counsel, that the calling for the report was “not an indication of what the likely disposition will be”. Moreover, as counsel for the appellant eventually accepted during her discussions with her Honour, on the morning of the sentence, her Honour gave both counsel the opportunity of making such submissions as they might consider appropriate. The appellant’s counsel who had possession of the report, chose not to make further submissions. In the circumstances, therefore, it seems clear enough that her Honour had not lulled counsel into the belief that she would impose a non-custodial sentence on the appellant, thereby causing counsel not to make further relevant submissions. Thus, in my view, the fact that her Honour did not tell counsel before imposing the custodial sentence that she was minded to do so did not amount to a denial of procedural fairness.
Mr. Langslow also argued under cover of that ground (notwithstanding that the argument did not fall within ground 11 or any other ground) that her Honour denied the appellant procedural fairness in another way, namely, by leading counsel to believe that her Honour had accepted that it was common ground as between the parties and the Bench that the appellant had been victimised as a child and that this was a factor relevant to the sentencing considerations. Moreover, it was said, her Honour’s questions to Professor Ball and her observation that his explanations were “very helpful” were consistent with her proceeding on the basis that the appellant’s childhood abuse was relevant to her sentencing considerations. Mr. Langslow argued that her Honour in fact did not accept that these matters were common ground but failed to tell counsel who was, therefore, effectively deprived of the opportunity of addressing her Honour on those issues.
In my opinion, there seems to be much force in that submission given that the prosecution did not put the appellant’s victimisation in issue and did not, at any stage, suggest that it would argue that it was not relevant to the sentencing consideration. Similarly, her Honour did not give any indication that these matters were live issues particularly bearing in mind her intimation to Professor Ball that his explanation to which I have referred earlier had been “very useful”. But the matter cannot be and in the circumstances, need not be, finally resolved. The argument was not covered by the notice of appeal and although no application to amend it was made, in my view it would have been inappropriate to allow any amendment were it sought at this late stage principally because, on an issue such as this, it would have necessitated seeking a report from her Honour. I should say that the report which her Honour submitted was very helpful and in my view, if the point contended for by Mr. Langslow were to form part of the ground s of appeal, her Honour should have an opportunity to report on it.
As to re-sentencing, in my view, taking into account the seriousness of the offending conduct in all its facets and giving due weight to the mitigating factors which Mr. Langslow contended were not properly taken into account by her Honour, including the fact that the appellant was sexually abused as a child by his violent stepfather, I would propose that in respect of each count, the appellant be sentenced for the same term of imprisonment that was imposed by her Honour. Substantially for the reasons given by her Honour, I would not order concurrency in respect of any of the sentences on counts 3 to 6. Again, substantially for the reasons given by her Honour for ordering partial cumulation in respect of the sentences imposed on the first two counts, I would order cumulation of nine months of the sentence on count 2 upon the sentence of count 1. This would give a total effective sentence of five years which in my view, would broadly reflect the appellant’s criminal conduct as a whole.
I experienced some difficulty in arriving at what I consider to be an appropriate non—parole period given the proposed head sentence of five years. There are two conflicting factors which bear upon this issue. One was that the evidence before her Honour made it apparent that the appellant is at risk of re-offending against young adolescent girls. On the other hand, there was a considerable body of evidence that the appellant had sound prospects of rehabilitation given, inter alia, that he has shown remorse, has made efforts to seek appropriate psychiatric treatment to address his propensity to commit offences of this nature, has continued with the treatment for over 12 months, is prepared to undergo further treatment, has support from his sister and his present wife and is clearly motivated to be re-united with his new family. I bear in mind that, as Callaway, J.A. said in R. v. Zunica[23], the purpose of a non-parole period is to provide for mitigation of punishment in favour of rehabilitation through conditional freedom. Hence, due weight must be given to the rehabilitation an appellant has already achieved and the prospects of it being finally accomplished. In the same case, Batt, J.A. emphasised that no mechanistic or formulaic approach can be taken to the fixing of the non-parole period. It depends on all the circumstances of the case (R. v. Krasnov & Shlakht[24]). Thus, after taking into account these principles and the evidence going to the appellant’s prospects of rehabilitation, I have finally concluded that it would be appropriate to fix a non-parole period of three years.
[23][1998] VSCA 32 at [18]
[24](1995) 82 A.Crim.R. 92
To reiterate, I would allow the appeal and re-sentence the appellant to terms of imprisonment as fixed by her Honour, directing that nine months of the sentence on count 2 be served cumulatively upon the sentence on count 1, thus giving a total effective sentence of five years. I would order a non-parole period of three years.
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