R v C S G
[1998] VSCA 117
•20 November 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 166 of 1998
THE QUEEN
v
"C.S.G."
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JUDGES: BROOKING, PHILLIPS and CHARLES, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 19 November 1998 DATE OF JUDGMENT: 20 November 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 117
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CRIMINAL LAW - Sentence - Incest - Mother and daughter - Remorse - Applicant's low intelligence - Delay - Sentence manifestly excessive.
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APPEARANCES: Counsel Solicitors For the Crown Mr R.A. Elston P.C. Wood, Solicitor for
Public ProsecutionsFor the Applicant Mr D. Allen Balmer & Associates BROOKING, J.A.:
Charles, J.A. will deliver the first judgment.
CHARLES, J.A.:
The applicant, who is now aged 42, pleaded guilty on 25 June 1998 to a presentment alleging three counts of incest contrary to s.44(1) of the Crimes Act 1958 and one count of cultivation of a narcotic plant contrary to s.72(1) of the Drugs Poisons and Controlled Substances Act 1981. The maximum penalty for the offence of incest was 20 years' imprisonment. The victim of the three counts of incest was in each case the applicant's daughter. Before the trial, the applicant had previously pleaded not guilty on 15 January 1998 at a committal in the Magistrates' Court at Melbourne to these and other charges, and not guilty when a presentment including these charges was first filed in the County Court on 15 June 1998. Her plea was changed to one of guilty on 25 June, only after the applicant had failed in an attempt to have her record of interview excluded on the ground that it had not been made voluntarily. The plea was heard on 29 June. A victim impact statement was tendered, and also before the court was a report dated 29 June from Mr Jeffrey Cummins, a consulting clinical psychologist, a bundle of character references concerning the applicant and a letter from the applicant's father. Evidence was given on behalf of the applicant by Mr Cummins and by her present de facto husband, J. The applicant had no prior convictions.
On 3 July 1998 the learned judge sentenced the applicant on each of the three
counts of incest to 24 months' imprisonment and on count 4 to a fine of $500. His Honour ordered that three months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, and that 21 months of the sentence
imposed on count 3 be served concurrently with both previously imposed sentences.
The total effective sentence was therefore 30 months' imprisonment. His Honour
fixed a non-parole period of 18 months' imprisonment, and ordered pursuant to
s.26(1) of the Crimes (Confiscation of Profits) Act 1986 that two small cannabis plants be
forfeited.The applicant now seeks leave to appeal against sentence on the grounds, putting to one side those no longer pressed, that -
1. The sentence is manifestly excessive.
2. The learned judge failed to give consideration or adequate consideration to the following matters -
(a) the applicant's remorse; (b) her level of intelligence; (c) the circumstances of the offences.
Before the commission of the offences, the applicant had been living with M, her then de facto husband, and her four children. The complainant is the oldest of the applicant's children and was aged 14 at the time. The complainant and her brother were the children of the applicant and S, the applicant's first de facto husband. The applicant's two younger children, both girls, were fathered by M. On or about 21 September 1992 the applicant and her four children left M because of his physical and emotional abuse of her, and moved to a women's refuge. When they arrived there the applicant was lonely, depressed and angry with her partner.
During the first night the applicant and her children were at the women's refuge, the applicant sat down with the complainant on the floor of her bedroom, the two younger girls being asleep in the room. The complainant was wearing a nightie. The applicant put an arm around her waist and lightly kissed her on the lips. She then put her hand underneath the complainant's nightie and rubbed and squeezed her breasts. The applicant told the complainant she loved her and that this contact would bring them closer together as mother and daughter. She told the complainant she was not doing anything wrong. She started to rub the complainant's vagina with her fingers and then took the complainant's hand in hers and placed it on her own breast and squeezed it. Finally she inserted the complainant's fingers in the applicant's vagina. The applicant reached a climax, making groaning noises which woke the other children (count 1).
After the complainant and her four children left the refuge they stayed temporarily in a house occupied by a friend of the applicant. On a day between 1 and 6 October 1992 the complainant was sleeping on a mattress in the loungeroom. She had gone to bed watching television and had fallen asleep. The applicant came in to turn off the television and got into bed with the complainant, who was wearing a nightie. The applicant had brought with her into the room a bag which contained a vibrator. She took the vibrator out of the bag and put it on the floor beside the bed. She then started to rub and squeeze the complainant's breasts underneath her nightie and started to rub the complainant's vagina. Finally she put the complainant's hand on the bottom of the vibrator, and, with her hand over the complainant's, guided the vibrator into the applicant's vagina. She pushed the vibrator in and out of her vagina until she came to orgasm (count 2.).
After the applicant removed the vibrator from her vagina she put the complainant's fingers and hand with the exception of her thumb into the applicant's vagina. She then moved the complainant's hand in and out of her vagina. Finally the applicant took the complainant's hand and put it on the applicant's breast and squeezed (count 3).
On 30 July 1996 police officers questioned the applicant in relation to the complainant's allegations. On searching the applicant's house they located two relatively small cannabis plants. The applicant admitted to the police that they belonged to her, although she did not smoke cannabis and did not plan to sell it (count 4).
The victim impact statement made by the complainant shows that she is now suffering from depression and emotional trauma and has been hospitalised for suicidal tendencies. She suffers low self-esteem, constant nightmares and guilt feelings, finding it hard to face reality at times. As a consequence of these events the complainant feels she has lost the most important people in her life, her family, and misses the chance of seeing her brother and sisters grow up.
Mr Allen, who appeared in this Court on behalf of the applicant, contended principally that the sentences imposed were manifestly excessive. Two separate submissions, however, require consideration before turning to that question. Mr Allen submitted that the learned judge erred in finding that there was no evidence of remorse. Mr Allen relied on the evidence during the plea given by both J and Mr Cummins that the applicant felt remorse for her offending, and also on her plea of guilty. On the other hand, Mr Elston, who appeared in this Court for the Crown, submitted that it was important to remember that the complainant had been required to give evidence at the committal and had been cross-examined at length by the applicant's counsel, and on at least two occasions had been accused of fabricating her evidence. During a voir dire, the applicant had challenged the admissibility of her record of interview with the police on a number of grounds, the principal one being that the admissions contained in it had not been given voluntarily. The applicant had in fact claimed that the police extracted admissions from her which were false, as a result of fear engendered in her by threats in relation to the proceedings and the custody of her children. Only after these submissions had been rejected had the applicant changed her plea to one of guilty. Accordingly, so Mr Elston submitted, the learned judge was entitled to conclude that the denials of criminal conduct were false, rather than the admissions made in the record of interview. It followed, so the submission ran, that the learned judge was not obliged to give any weight to the pleas of guilty and any suggestion that they were demonstrative of remorse could be seen to be hollow.
J did indeed state in evidence that the applicant had expressed remorse over her actual offending. He said the applicant was sorry for what had happened. Under cross-examination, however, J was asked when the applicant had first expressed sorrow for the offences, to which he replied, "She has been sorry it happened all the way through." When asked whether this meant sorry for herself, J replied that he did not know, and that the applicant had simply stated that she had been sorry. It was then put to him that this was "more sorry for herself and concern about her own welfare", to which he replied, "I couldn't tell you that." When Mr Cummins came to give evidence of the applicant's remorse, he said that the applicant was remorseful, but that "her sense of remorse is complicated". Pressed in cross- examination on this point he continued that the applicant "is still in a state of partial denial" and "has limited insight into her psychological state because that remorse is, by definition, complicated. It is not simply straightforward remorse".
In the course of the voir dire during which the attempt was made to exclude the record of interview as not having been made voluntarily, the applicant herself gave evidence. The learned judge was then in a position to observe the applicant and her conduct of the proceedings. In the circumstances I have outlined, including the very late change of plea to one of guilty, and the fact that it was made after the complainant had on two occasions been accused of fabricating her evidence, I think the learned judge was entitled to place little or no weight on the applicant's plea of guilty as in itself evidencing remorse.
The next submission made by Mr Allen was that the learned judge had failed to give consideration or adequate consideration to the applicant's level of intelligence, his Honour having said that he was "not persuaded" that the applicant possessed "as little intelligence as was claimed". Mr Cummins had indeed assessed the applicant's IQ as in the bottom seven to eight per cent of the population, having left school at the end of Form 3, and as having a low level of intellectual functioning, relative immaturity, limited insight and a dependent personality style. But, as Mr Cummins accepted at the outset of his cross-examination, "many many people that come before the courts" have a dependent personality, are fairly immature, with a low IQ and are anxious and depressed. In any event, the learned judge had had the opportunity of observing the conduct of the applicant's case over a prolonged voir dire, in the course of which she had herself given evidence. In these circumstances, Mr Elston submitted that although the applicant may have lacked formal education, she had demonstrated sufficient intellectual ability adequately to cope with the voir dire and, indeed, had thoroughly tested the prosecution case and maintained her innocence until the eleventh hour. The learned judge was, I think, entitled, having heard the applicant in the witness box, to say that he was not persuaded that the applicant possessed as little intelligence as had been claimed.
I turn then to the question of manifest excess. In support of this ground Mr Allen relied on the applicant's traumatic personal history prior to the commission of the offences, which Mr Cummins said had resulted in her suffering post-traumatic stress disorder. The offences had occurred over a short period of time, approximately some two to three weeks between late September and early October 1992, and arose out of only two incidents, shortly after the applicant and her children had fled from M because of his physical and emotional abuse. They occurred when the applicant was lonely, depressed and angry with M, and the offending was described by Mr Cummins as situational in type, not predatory paedophilic behaviour. She was emotionally vulnerable. The offences, Mr Allen submitted, did not involve penetration of the complainant, were not aggravated by matters such as pornography, violence or intimidation, the applicant had no prior history of committing such offences, had ceased offending of her own accord, and did not offend again after 1992. The applicant was otherwise of good character and the offences represented an uncharacteristic aberration, isolated incidents where the applicant succumbed to temptation on two occasions. Her moral culpability was, Mr Allen argued, reduced by her psychological state and the emotional stress she was suffering and her intellectual and educational deficit. Mr Allen submitted that the element of specific deterrence should have been significantly reduced in light of the applicant's previous good character, the fact that the offences were situational, her embarrassment and shame, the absence of any re-offending and the minimal risk of any recidivism. The element of general deterrence should have been sensibly moderated since the offences were situational, and in reliance on the applicant's intellectual impairment. He also relied on the applicant's excellent prospects of rehabilitation, the delay between the record of interview and the laying of charges, the plea of guilty, and the fact that the applicant will find imprisonment more onerous because she will be segregated in the protection unit from other prisoners.
Some of the matters relied on by Mr Allen cannot be made good. There was in fact some penetration of the complainant, as the applicant's counsel conceded during the plea, and there was repeated and serious penetration of the applicant in which the complainant was forced to co-operate. Insofar as Mr Allen relied on the delay between the applicant's record of interview (taken on 30 July 1996) and the laying of charges (the applicant was committed for trial on 15 January 1998), that fact, although regrettable, is partly to be explained by the applicant having pleaded not guilty and vigorously contesting the admissibility of the record of interview. In R. v. Miceli (1997) 94 A.Crim.R. 327, upon which Mr Allen relied, Miceli had made a clean breast of the offences for which he was later charged, more than two years being allowed to elapse before his plea was heard and he was sentenced, and none of the delay was attributable to Miceli. The present applicant's answers in her record of interview show that she well knew that what she was doing was wrong and her actions produced, as the victim impact statement clearly demonstrates, serious consequences for the victim. The applicant's actions were premeditated, at least on the second occasion when she came to her daughter with the vibrator she later used in the bag she was carrying. Although the applicant's offences were not accompanied by threats or intimidation, they none the less involved a gross breach of trust by the applicant to her 14-year-old daughter, the more serious for the extent to which the bond, which ought to exist between mother and daughter in particular, must have been permanently broken by the way the complainant was treated. At a time when the applicant had just taken her children with her into the refuge, her behaviour was such as to cause her daughter to say in evidence that her mother's conduct confused and disgusted her and that she was ashamed to call her mother.
In R. v. Wakime [1997] 1 V.R. 242 at 244, Winneke, P. said:
"As this Court has repeatedly pointed out, incest is an abhorrent crime. His Honour correctly recognised the crime's capacity to erode decent family life and the trust and confidence of its victims. This Court has said that it ought not to turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children. As the Court has indicated in the past, if fathers wish to claim guardianship rights over their children, they have an overriding responsibility to assume their obligations to protect, inter alia, the moral welfare of those children. Incest simply undermines the role of guardianship and destroys the entire concept of family unity, and that is why this Court in particular is continually reminding itself and other courts that incest ought to attract condign punishment. His Honour correctly recognised, in passing his sentence, the odious nature of the offences ..."
Many of the circumstances to which I have already referred emphasise the wisdom of the President's comments. Furthermore there can be no question but that the applicant's behaviour had predictably serious consequences for the complainant. But, notwithstanding these considerations, there are, I think, some most unusual aspects of this particularly sad case. The applicant's wretched personal history, according to Mr Cummins's evidence, resulted in her suffering post-traumatic stress disorders. The offences were clearly situational, and occurred when she was particularly vulnerable, being lonely, frightened and depressed after moving to the refuge in response to M's physical and emotional abuse of her. Indeed Mr Cummins's evidence was that the applicant was at the time displaying a clinically diminished level of responsibility (I do not overlook that the children too, including of course the complainant, would themselves have been vulnerable and insecure at the time they moved into the refuge). The applicant had no prior criminal history, ceased offending of her own accord, and her otherwise good character was well- attested by the references tendered. It is most unlikely that she will re-offend and her prospects of rehabilitation would seem to be excellent. The incidents were close in time and isolated and on the evidence appear to be an uncharacteristic aberration in a life otherwise free from criminal incident. She has already been significantly punished in having lost, at least for the time being, custody of her two younger children by reason of these charges. Indeed her fear of losing the children may well explain what now seems untoward, her early denials of her conduct and her challenge to the admissibility of her record of interview, which the learned judge thought, possibly somewhat sternly, indicated a lack of remorse. I also do not overlook that the judge was not prepared to accept Mr Cummins's assessment of her intelligence at a particularly low level. Be that as it may, that does not seem to me to militate against those other factors in her favour to which I have just referred. In view of the weight placed by counsel on the omission, it is perhaps to be regretted that his Honour did not in his sentencing reasons refer expressly to the applicant's lack of prior convictions, the positive evidence of her good character, the possible effect on her subsequent conduct of her fear of losing her children and finally the onerous nature of her incarceration in that her time in gaol may well have to be spent segregated from the mainstream prison population.
In all these circumstances, after considerable hesitation, I am persuaded that the ground of manifest excess has been made good. I would accordingly grant the application and allow the appeal against sentence.
I would therefore set aside the sentences imposed on each of counts 1, 2 and 3. In lieu thereof I would substitute in relation to count 1 a sentence of nine months', on count 2 a sentence of 18 months' and on count 3 a sentence of six months' imprisonment. I would order that three months of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 2, and that the whole of the sentence imposed on count 3 be served concurrently with the sentence imposed on count 2. This would make a total effective sentence of one year and nine months' imprisonment. I would fix a non-parole period of six months. Since the consequence of the sentences imposed on counts 1 and 2 is that the applicant is a serious sexual offender within the definition of s.6B(2) of the Sentencing Act 1991, I should say in relation to count 3 that I agree with the sentencing judge that this is not a case which requires the Court, under s.6D(b) of the Sentencing Act, to impose a sentence longer than would otherwise be imposed for the protection of the community.
BROOKING, J.A.:
I would dismiss this application. Since I understand Phillips, J.A. to be of the same opinion as Charles, J.A., it would not be useful for me to give reasons at any length for my own view.
The argument on pleas and on applications of this kind tends to concentrate on the position of the prisoner. There was a victim impact statement in this case, and the gravity of the consequences of these offences to the victim is to be borne prominently in mind in performing the balancing exercise. Having regard especially to the gravity of the crime of incest, which has so often been emphasised by the appellate court of this State, and to the seriousness of the consequences to the victim in this case, I am not persuaded that the sentence passed was not open to the judge.
PHILLIPS, J.A.:
I agree with Charles, J.A. I am not yet clear that the sentencing judge did not fall into specific error in sentencing the applicant to two years' imprisonment on each and every of the three counts: compare R. v. Lomax [1998] 1 V.R. 551, R. v. L (1997) 91 A.Crim.R. 270 and R. v. Elov (unreported, Court of Appeal, 14 May 1998); but the point was not taken and so I say nothing more about it. It is enough that I too think that the sentences passed were manifestly excessive, for the reasons given by Charles, J.A., and that the applicant should be re-sentenced as he proposes.
BROOKING, J.A.:
| 24 | The order of the Court is that the application for leave to appeal against sentence is granted, the appeal treated as instituted and heard instanter and allowed. |
The sentences imposed on counts 1, 2 and 3 are quashed. In lieu thereof the
applicant is sentenced to nine months' imprisonment on count 1, to 18 months'
imprisonment on count 2 and to six months' imprisonment on count 3. Three
months of the sentence imposed on count 1 is ordered to be served cumulatively
upon the sentence imposed on count 2 and the whole of the sentence imposed on
count 3 is ordered to be served concurrently with the sentence imposed on count 2.This gives a total effective sentence of one year and nine months' imprisonment. A non-parole period of six months is fixed.
The Court declares that the applicant was sentenced on count 3 as a serious
offender.
The Court further declares that the period to be reckoned as a period of imprisonment already served under the sentence is 141 days and directs that the fact and details of this declaration be noted in the records of the Court.
The sentence on count 4 (cultivation) will stand as unaffected by this order.
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