R v DCP
[2006] VSCA 2
•19 January 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 64 of 2005
| THE QUEEN |
| v. |
| DCP |
---
JUDGES: | CALLAWAY, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 January 2006 | |
DATE OF JUDGMENT: | 19 January 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 2 | 1st Revision 9 June 2006 |
---
Criminal law – Sentencing – Sexual offences – Indecent acts and acts of sexual penetration – Child under 16 years of age and child aged 16 years of age – Child under care, supervision or authority of appellant school teacher – Possession and transmission of child pornography – General deterrence and denunciation – Double punishment – Total effective sentence of seven years imprisonment with five years non-parole period not manifestly excessive – Crimes Act 1958, ss. 45, 47-49, 70 – Classification (Publications, Films and Computer Games) (Enforcement) Act 1995, s.57A.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr P.F. Tehan, Q.C. with Mr M.J. Croucher | Galbally Rolfe |
CALLAWAY, J.A.:
I invite Chernov, J.A. to deliver the first judgment.
CHERNOV, J.A.:
On 12 November 2004, the appellant, who was then aged 45 years, pleaded guilty in the County Court at Melbourne to a presentment containing 10 counts, the first eight of which essentially alleged that, at various times between November 2002 and May 2003, he engaged in unlawful sexual conduct towards two girls who were students of the school at which he was a teacher. At the time of the offending one of the girls ("X") was aged 16 years and the other ("Y"), 15 years. It was common ground that at all relevant times the girls were under the appellant's care, supervision or authority for the purposes of the Crimes Act 1958. More specifically the appellant pleaded guilty to:
(a)one representative count (count 1) of committing an indecent act with or in the presence of X, contrary to s.49(1) of the Crimes Act which prescribes a maximum custodial penalty of five years imprisonment;
(b)three representative counts (counts 2, 3 and 4) of sexual penetration of X, contrary to s.48(1) of the Crimes Act which prescribes a maximum custodial penalty of 10 years imprisonment;
(c)three representative counts (counts 5,6 and 7) of sexual penetration of Y, contrary to s.45(1) of the Crimes Act which relevantly prescribes a maximum custodial penalty of 15 years imprisonment;
(d)one count (count 8) of committing an indecent act with or in the presence of Y, contrary to s.47(1) of the Crimes Act which prescribes a maximum custodial penalty of 10 years imprisonment;
(e)one count (count 9) of transmitting child pornography on the internet between 1 December 2002 and 20 May 2003 contrary to s.57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 which prescribes a maximum custodial penalty of 10 years imprisonment; and
(f)one count (count 10) of possessing child pornography contrary to s.70(1) of the Crimes Act which prescribes a maximum custodial penalty of five years imprisonment.
Counts 1‑4 covered the period 1 November 2002 to 11 April 2003 and counts 5‑8 covered the period 1 December 2002 to 20 May 2003.
After hearing a plea in mitigation made on the appellant's behalf on 27 January and 23 February 2005, the learned sentencing judge sentenced the appellant (who had no prior convictions) on 25 February 2005 to the following terms of imprisonment:
Count Sentence Cumulation
1 18 months
2 2 years 6 months on sentence on count 7
3 2 years 6 months on sentence on count 7
4 2 years 6 months on sentence on count 7
5 3 years, six months 6 months on sentence on count 7
6 3 years, six months 6 months on sentence on count 7
7 4 years
8 3 years 2 years, 9 month concurrent with sentence
on count 7 and other sentences9 2 years 2 months on sentence on count 7
10 12 months 1 month on sentence on count 7
In respect of counts 7 and 8 the appellant was sentenced as a serious sexual offender for the purposes of Part 2A of the Sentencing Act 1991. Her Honour also declared that he was a registrable offender for the purposes of the Sex Offenders Registration Act 2004.
As can be seen from the above table her Honour ordered that six months of the sentence imposed on each of counts 2, 3, 4, 5 and 6 be served cumulatively on the sentence imposed on count 7 and that two months of the sentence imposed on count 9 and one month of the sentence imposed on count 10 be also served cumulatively on the sentence imposed on count 7. Notwithstanding that the appellant was sentenced as a serious sexual offender on counts 7 and 8, her Honour declined to exercise her discretion under s.6D(b) of the Sentencing Act to impose a sentence that is disproportionate in length to the gravity of the offence, and her Honour also directed "otherwise" for the purposes of s.6E of the Sentencing Act, ordering that two years and nine months of the sentence imposed on count 8 be served concurrently with the sentence imposed on counts 7 and the other sentences, so that only three months of that sentence is to be served cumulatively on the sentence imposed on counts 7 and the other sentences. Thus, her Honour imposed on the appellant a total effective sentence of 7 years imprisonment and ordered that he serve a minimum term of 5 years before becoming eligible for parole.
By notice filed on 10 March 2005 the appellant sought leave to appeal against sentence and, on 26 August 2005, leave was granted by judge of this Court pursuant to s.582 of the Crimes Act. The Full Statement of Grounds lists three grounds. The first two essentially complain that the sentences are manifestly excessive and the third ground asserts that one or other of the sentences on counts 3 and 8 involve double punishment. I will deal later with each ground, but first it is necessary to set out briefly the circumstances of the offending conduct and relate them to the counts to which the appellant had pleaded guilty. In the main, this material is taken from the Crown's summary of the evidence, a copy of which was provided to the appellant, and from her Honour's sentencing remarks.
As I have said, the appellant was a school teacher at the relevant time. He qualified at a teacher's college and specialised in teaching drama and English. He commenced employment as a teacher on 31 May 1981. In January 1988 he was transferred to the school at which he was teaching at the time of the offences. One of the positions that he held there was that of a year 10 co‑ordinator which required him to take part in the management of student discipline and in the provision of basic level student welfare at the year 10 level. Any serious welfare issues, however, were to be referred by him to the welfare co‑ordinators at the school and/or the assistant school principals. In that capacity, in about May 2002, the appellant began to counsel X, who was then a year 10 student at the school, on a regular basis in relation to her behaviour. In about October 2002 he told her that he had personal feelings towards her that were more than that of a teacher towards a student and that he wanted to spend more time with her. X was initially taken aback by this suggestion but after giving it some consideration thought the prospect exciting and generally agreed with the suggestion. Thereafter, they frequently communicated with each other outside school hours by e‑mail and telephone. In about November, in accordance with a prior arrangement, the appellant collected X in his car after school hours at the rear of the school. He told her to crouch down in the passenger foot‑well so that she would be out of sight and drove her to his home. After they entered the house, he sat on a couch and X lay with her head on his lap. They began to kiss each other and then pull down each other's pants. The appellant rubbed X's vagina while she held the appellant's penis and masturbated him. That conduct was the basis of count 1. During this incident, the appellant inserted two of his fingers into X's vagina ‑ count 2. At this point X put a stop to sexual contact and shortly thereafter the appellant drove her home, letting her out of the car around the corner from her house. After this incident, X and the appellant continued to communicate with each other.
A week or so later the appellant arranged to meet X at a shopping centre. From there, he drove her to his home, again making her conceal herself in the passenger foot‑well of the car. When they arrived at the appellant's home, he put on music and they commenced to kiss. After the appellant and X removed their clothing and lay naked on the floor of the loungeroom, the appellant inserted two fingers into her vagina, then inserted his penis into her vagina and after some time ejaculated. This conduct was the basis of count 3. The appellant then drove X home, again dropping her off around the corner from her house.
In the course of the following few weeks the appellant took X to his home on 6 to 8 occasions where they had sexual intercourse and performed oral sex on each other. That conduct was the subject of the representative count 4. During at least some of these occasions the appellant took digital photographs of X when she was naked. Moreover, during this period the appellant gave her money to top up the credit on her mobile telephone so that they could continue to communicate. He also bought her cigarettes.
In about December 2002 the appellant spoke to X about his desire to have sex with two people at the same time. She had earlier told him that she had told her best friend at school, Y, who was also a year 10 student, about their sexual activities. In the result X spoke with Y about joining her and the appellant and, after some time, she agreed to do so. Y had not previously had sexual intercourse. Between about 18 and 20 December 2002 the appellant collected both girls from the vicinity of Y's house and drove them to his home, where he began to kiss X in front of Y. He then asked Y if she wished to join in. She was excited at having been asked and agreed. All three then undressed each other and the appellant sat on a couch with the two girls who took turns in performing oral sex on him. During this period the appellant put his tongue into Y's vagina. This conduct formed the basis of count 5. While Y watched, the appellant then penetrated X's vagina with his two fingers and had sexual intercourse with her on the floor, ejaculating in her vagina. This conduct was the subject of count 8. Thereafter, the three remained naked on the floor and continued to kiss each other and to talk about what had happened. A short time later the appellant digitally penetrated Y's vagina. Y then performed oral sex on the appellant and this was the basis of count 6. X watched while this was happening and then all three performed various sexual acts with each other throughout the afternoon. This included the appellant having sexual intercourse with Y on the loungeroom floor, ejaculating into her vagina ‑ count 7. During the same afternoon the appellant took digital photographs of X and Y when they were naked and when they were performing oral sex on each other. He later downloaded these photographic images onto his computer and e‑mailed the photographs to Y – count 9.
After Christmas 2002 the appellant continued his sexual relationship with X. He gave her a vibrator as a Christmas present and recorded her on the "web cam" as she removed her bathers and while he put his fingers into her vagina. The appellant had set up the "web cam" after he had logged on to an internet chat room. He transmitted the recording to a male person. During this period the appellant also gave X money to buy underwear for his 13‑year old daughter, but he later gave it to her together with a bracelet which he said was an early birthday present.
In January 2003 the appellant also recorded Y on the "web cam" performing at his request oral sex on him while she masturbated herself. Later, after having sexual intercourse with Y, the appellant drove her to meet a male and a female at a restaurant. The appellant had earlier arranged the meeting on an internet chat room. The four then went to a nearby park where Y "tongue‑kissed" the male and female at the request of the appellant.
X ended her relationship with the appellant in April 2003 but he continued with his association with Y. In or about May 2003, Y stopped seeing the appellant after he spoke to her about matters with which she was not comfortable. At no stage during his sexual relationship with the complainants did the appellant wear a condom.
The appellant's offending conduct with X and Y came to light when the principal of their school was told that some of the students were distributing photographs which depicted the appellant and the two girls naked. The matter was reported to the police and, on 16 July 2003, they seized the appellant's personal computer from his home. Examination of its hard drive revealed that it contained five child pornographic video clips, portraying children obviously under the age of 10 participating in sexual acts with the adult males ‑ count 10. The police also found at the appellant's home a large quantity of child pornographic printed material. On 21 July 2003 the appellant was arrested and later that day was interviewed by the police but gave "no comment" answers.
It is also necessary to give a brief outline of the appellant's personal circumstances. He grew up in a sound family environment. He has one brother who is about five years younger. At the time of sentencing, the appellant's 77 year old father and his 76 year old mother were in ill health as is apparent from the medical reports that were tendered in evidence before her Honour who accepted that the appellant was involved in their care since they became ill. The appellant married when he was 25 years of age and he has three children by that marriage who at the time of sentence were aged 14, 10 and 8 years. Since his arrest he has had only limited access to his children. The appellant separated from his wife in October 2002, shortly before he engaged in the offending conduct with X. It seems from her Honour's sentencing remarks that the marriage had been deteriorating for some time prior to the separation and that the appellant began to drink more heavily during this period. The learned sentencing judge noted that, as a distraction from his marital problems, in about late 2001, the appellant began to speak anonymously on internet chat channels about sexual matters. It would also appear that at or about that time he became very distressed at the death of his uncle to whom he was close and as a result drank even more heavily. It was in this context that he commenced to counsel X and discuss his marital problems with her.
Her Honour also had before her the report of Professor Morris, a psychiatrist, which noted, amongst other matters, that during the four years or so leading to the offences, the appellant had symptoms of chronic depression, engaged in heavy use of alcohol and experienced gambling problems. Professor Morris' diagnosis was:
"He currently suffers from an adjustment disorder with depressed mood which is in partial remission. This condition is under treatment and has responded partially to the treatment. The condition developed toward the end of 2003 in response to his awareness of the enormity of the consequences of his actions and his limited access to children."
During 2003 the appellant commenced a relationship with a woman whose daughter attended the school at which he taught and cohabited with her from August 2003 until the second half of 2004. After his arrest the appellant was suspended from teaching and thereafter he worked on a voluntary basis with an organisation that provides administrative assistance to schools and the Department of Education.
At the hearing of the plea of mitigation a number of character witnesses were called on the appellant's behalf. They spoke favourably of his work record and of his remorse in relation to his offending. The person who had effectively employed him after he was dismissed as a teacher said he would employ the appellant in a similar position upon his release from prison. Essentially, the witnesses said that the appellant's offending was out of character and that he expressed regret at having adversely affected others. Her Honour also had before her the victim impact statements of the two girls and their respective parents which made plain the detrimental impact the appellant's offending conduct had on the complainants and their families.
The learned sentencing judge found that it was not necessary to resolve whether it was the appellant who suggested that Y be brought into his sexual group or whether the idea came from X, as the appellant claimed. Her Honour considered that, on any view, his offending conduct against the two girls was very serious irrespective of who initiated the tri‑party arrangement. Her Honour also did not sentence the appellant on the basis that he knew that Y was aged 15 at the relevant time ‑ he asserted that he thought she was aged 16 ‑ but rather on the basis that he was reckless as to that. But the learned sentencing judge rejected the appellant's claim that he did not know that Y had not had sexual relations before he commenced his relationship with her.
Grounds 1 and 2
I now come to consider the grounds. Mr Tehan, for the appellant, argued the first two grounds together. It was first contended that the individual sentences on count one and counts 5 to 9 are manifestly excessive essentially because the sentencing judge failed to accord sufficient weight to a number of matters of mitigation which were highlighted by counsel. First, it was claimed that not sufficient account was taken by her Honour of the appellant's character, background and personal circumstances at the time of the offending. It was said that the fact that the appellant came to be sentenced as a person of good character was more significant in cases such as the present when compared, for example, with a case involving drug trafficking. Counsel emphasised the impressive character evidence that was given on the appellant's behalf at the hearing of the plea in mitigation which showed that the offending was completely out of character, so counsel said, and that the only explanation for it was his emotional decline that was caused primarily by the breakdown of what counsel called "the loveless marriage". It was also said that the evidence before her Honour made it apparent that the appellant had shown genuine remorse for his offending, having pleaded guilty at a relatively early stage of the proceeding. Counsel then emphasised that the appellant's loss of his career amounted to significant punishment of him, given that he had been a dedicated teacher of some standing for some time who had enjoyed a high reputation in his profession. Mr Tehan also referred to the very poor health of the appellant's elderly parents, their concern that he would no longer be their carer and the resultant move from their former home to one near their other son. Mr Tehan said that, given his brother's work commitments, the parents essentially have to look after themselves so that his absence has worked a significant hardship on them. Counsel argued also that specific deterrence and protection of the community were not paramount sentencing considerations in this case, particularly given the Crown's concession that the appellant was unlikely to re‑offend. The Crown also conceded, said counsel, that the offences fall within the middle range of the offences of this nature.
Mr Tehan accepted that all these matters were taken into account by the learned sentencing judge in the sentencing disposition, but argued that, given the length of the sentences imposed, her Honour could not have given them sufficient weight. More specifically, counsel pointed out that the sentences imposed in relation to counts 5 to 8 were considerably higher than those imposed in respect of like offending against X. Thus, for example, Mr Tehan pointed in that context to the sentence imposed on count 7 which was twice that imposed in relation to count 3, notwithstanding that the counts alleged sexual penetration in the first case against X and in the latter count against Y. It was also submitted that the three year sentence of imprisonment in respect of count 8 – indecent act in the presence of Y – is one year longer than any of the sentences imposed in relation to the offences against X, even that which involved sexual penetration of her by the appellant. It was said that the sentence on count 8 was "wholly out of kilter with the other sentences" and, as I will mention more fully later, was said to be afflicted by double punishment. It was also argued that the sentence imposed on count 9 – 2 years imprisonment – is well "out of kilter" with the other sentences and is manifestly excessive, particularly given the sentence that was imposed on count 10.
Mr Tehan also claimed that the total effective sentence of 7 years imprisonment overstates the overall criminality of the offending conduct and fails to accord a due weight to the mitigating factors. Counsel argued that the head sentence is in the order of that imposed for incest which is the more serious offence. Mr Tehan also submitted that the undue length of the total effective sentence is demonstrated by the fact that, absent the significant mitigating factors, her Honour's starting point for sentencing purposes must have been well over 10 years imprisonment and this was plainly excessive.
Counsel also claimed that, even if the total effective sentence of imprisonment is not beyond the relevant range, the non‑parole period is. It was said that given the mitigating factors in this case and her Honour's acceptance that the appellant had reasonably good prospects of rehabilitation, it was not open to her to regard five years as the minimum period that justice required the offender to serve in prison.
In my opinion, however, grounds 1 and 2 should fail because the impugned individual sentences, the total effective sentence and the non‑parole period are within the range of sentences that were available to her Honour to impose in her sentencing discretion. The task of a sentencing judge is to impose a just sentence having regard to the seriousness of the offence, the gravity of the offending conduct, the applicable sentencing principles, matters personal to the offender and other mitigating factors. I consider that the sentencing remarks, and the resultant sentences, demonstrate that her Honour did just that.
The offences in this case were of a very serious kind. As Callaway, J.A. has explained in R. v. Ellis,[1] Parliament has made it clear that the essential purpose of the applicable statutory provisions is to protect children and young persons from sexual exploitation, particularly by those who are in positions of care, supervision and authority in relation to them.[2]
[1](2005) 153 A. Crim. R. 340 at 341.
[2]See also R. v. Howes (2000) 2 V.R. 141 at [4] per Winneke, P and at [29] per Brooking, J.A. and R. v. Coffey (2003) 6 V.R. 543 at 547 per Callaway, J.A.
But not only were the offences here very serious, the appellant's offending conduct was abhorrent. The appellant was not only in a position of trust and moral and intellectual superiority in relation to the two young complainants, but he was charged with the obligation of protecting them or at least furthering their interests. As a much older person and as their teacher, he appreciated, as her Honour said, that he had considerable influence over the impressionable and vulnerable young girls. X, in particular, must have been vulnerable given that, for some months before the offending conduct, he was her counsellor in relation to her behavioural problems. The appellant callously exploited this position over a considerable period for the purposes of satisfying his sexual appetite and in the course of so doing he effectively debauched the two girls. If the appellant did not suggest to X that she introduce her best friend, Y, to his sex group, at the very least he played a material role in having the 15‑year old join it, knowing at the time that she was a virgin. Instead of protecting the complainants' interests as he should have done, he effectively destroyed their sexual integrity. Not surprisingly, the offending had a significantly detrimental effect on them and their families that is likely to continue for some time. As her Honour pointed out, none of the offending conduct was committed on the spur of the moment but involved, over some months, deliberate and premeditated encouragement of the complainants to satisfy his sexual appetite with the knowledge that they would be compliant with his wishes. In the circumstances, the principle of general deterrence and the need for the court to express denunciation of this offending conduct assumed considerable importance in the sentencing disposition. Thus, notwithstanding that below the Crown may have adopted the position that the offences fell in the middle range of offences of this kind, I think that in the circumstances the sentencing judge was entitled to treat the offending conduct as being very serious,[3] and to regard general deterrence and the need for the court to express its denunciation of the offending conduct as being of considerable importance in the sentencing disposition and thus take the view that the conduct called for condign punishment.
[3]See, for example, R. v. Bell [1999] VSCA 223 at [16] per Batt, J.A.
It is true that there were considerable mitigating factors in this case and Mr Tehan has emphasised them with his usual thoroughness. But all of them, as well as other mitigating circumstances, were taken into account by her Honour, as counsel fairly acknowledged, and there is nothing in the sentencing remarks or, I think, in the sentences that suggest that her Honour failed to accord them due weight. The sentences on counts 5 to 8, which were particularly attacked by Mr Tehan, are, in my view, plainly within the relevant range. It is unsurprising that they are higher than those imposed on counts 1 to 4 given that, amongst other matters, the maximum penalty in respect of count 7 is 50 per cent higher than that which relates to count 3 and the offending against the younger Y had more aggravating aspects to it. Similarly, I do not accept that the sentence on count 8 is "out of kilter" with the other sentences as the appellant claims. The offending which was the subject of that count was, as her Honour said, a very serious example of the offence in question and I consider that, in the circumstances, it cannot be said that it is outside the range of sentences that was properly available to the learned sentencing judge. I must also reject Mr Tehan's claim that the sentences here are more appropriate to those for incest which counsel said was a more serious offence. Putting aside the fact that in both sets of offending there is an abuse of power and authority, it is plain that each case must turn on its own facts and that in this case the abuse of trust and power was such that significant sentences were called for. I also think that the sentence on count 9, that is, 20 per cent of the maximum penalty prescribed, is not disproportionately high as the appellant would have it. Mr Tehan contended that the sentences do not reflect the Crown's concession that the appellant would not re‑offend and that specific deterrence was not a relevant significant consideration. But her Honour was not bound to accept the so‑called concession and, even if the appellant's prospects of re‑offending are not significant given that his opportunity to do so may be limited in any event, it was open to the learned sentencing judge not to disregard the principle of specific deterrence for sentencing purposes. I do not read her sentencing remarks as indicating that she gave this undue prominence.
I also consider that the total effective sentence does not offend the principle of totality as was put for the appellant. Rather, given the serious of the offences and the gravity of the offending, I think that it cannot be said that the total effective sentence does not justly and appropriately reflect the total criminality of the appellant's offending conduct. That her Honour was mindful of the principle of totality is plain when one looks at the order for concurrency made in respect of the sentence imposed on count 8. Clearly, some cumulation was warranted in this case and the only question is whether it produced an unduly excessive total effective sentence which plainly goes beyond what is appropriate to reflect the appellant’s overall level of culpability. On any view, I think his total criminality was very high and I consider that the total effective sentence is within the relevant range.
To put it shortly, I think that the impugned individual sentences are not outside the relevant range.
I have already dealt with the matter of the total effective sentence.
Although there is more force in Mr Tehan's claim that because the total effective sentence of 7 years imprisonment is stern and the non‑parole period of 5 years is in the circumstances unduly excessive, I have come to the firm conclusion that it was open to her Honour to impose such a non‑parole period. It is true that her Honour found the appellant's prospects of rehabilitation were reasonable and that, in appropriate circumstances, this factor may operate to warrant a shorter non‑parole period than might otherwise have been the case. But the fixing of a non‑parole period is particularly within the discretion of the sentencing judge and it must be borne in mind that the period represents the minimum time that the judge considers that justice requires the offender to serve in all the applicable circumstances. Moreover, a non‑parole period has a penal element and where, as here, the impugned conduct calls for condign punishment in the application of the principle of general deterrence, its length should not undermine those objects.[4] The ultimate question is whether in the circumstances it was open to her Honour to conclude that the minimum period of imprisonment that justice requires the appellant to serve is 5 years. Given the very serious nature of the offending conduct and the need to give effect to the courts' denunciation of it and to the principle of general deterrence, I consider that it was open to her Honour to impose such a non‑parole period.
[4]See, for example, Director of Public Prosecutions v. Josefski [2005] VSCA 265 at [43] per Callaway, J.A. and R. v. VZ (2001) 7 V.R. 693 at 698 per Callaway, J.A. and at 700 per Batt, J.A.
I mention for completeness Mr Tehan's "reverse engineering" argument that, absent the mitigating factors, her Honour's starting point for sentencing purposes would have been 10 years imprisonment, does not demonstrate that the total effective sentence is plainly wrong. I consider that the argument is not helpful in this case, given that its underlying basis runs counter to the intuitive synthesis approach to sentencing that operates in this jurisdiction.
Thus, as I have said, I think grounds 1 and 2 should fail.
Ground 3 – double punishment
I now turn to the appellant's claim, made under ground 3, namely, that one or other of the sentences imposed on counts 3 and 8 is afflicted by double punishment. Mr Tehan contended, as I understand it, that because counts 1‑4 were representative counts, the period covered by them substantially overlapped the period of the subsequent counts, more particularly counts 5 and 8, so that the appellant's conduct in respect of count 8 formed part of the background to the offence charged by count 3 and, counsel said, count 2. Thus, it was said, sentencing the appellant on counts 3 and 8 without providing a discount for the overlap would involve double punishment. Counsel argued that it is apparent from the judge's sentencing remarks and from the length of the sentence imposed on count 8 that her Honour did not accord such a sentencing discount and, therefore, one or other of the sentences, but probably that imposed on count 8, contains an element of double punishment.
It may be accepted that there is an overlap in the periods that apply to the two sets of counts, but it does not follow that because of it the sentences are infected by double punishment. It is clear enough that counts 3 and 8 deal with the infringement of different rights, namely, those of X and Y respectively, but that occurred at different times so that a sentence had to be imposed for each offence. Count 3 was concerned with the first time that the appellant had sexual intercourse with X, which occurred some weeks before Y joined the group. Count 8, on the other hand, was concerned with a subsequent occasion when the appellant had sexual intercourse with X, but the gist of the offence was committing that act in the presence of Y. Count 8, of course, was not a representative count. To the extent that the appellant's later conduct toward X was taken into account for the purposes of sentencing on count 2 and/or count 3, it was only relevant by way of context.[5] Importantly, as the learned presiding judge pointed out in argument, when sentencing on a representative count the sentencer cannot properly sentence the offender in respect of the wrongful conduct that constituted the relevant context and I see nothing in her Honour's reasons to suggest that she did that. In the circumstances, as a matter of common sense, there was no overlapping in the offences that were charged by counts 3 and 8 and consequently the sentences in
question do not involve double punishment in contravention of what was said in Pearce v. The Queen[6] as counsel submitted. Thus, I think that ground 3 should fail.
[5]See R. v. SBL [1999] 1 V.R. 706, at 723‑724 per Ormiston, J.A.
[6](1998) 194 C.L.R. 614 at 624.
Mr Tehan has said all that could be said in support of the appeal but, in my view, it should be dismissed for the reasons I have given.
CALLAWAY, J.A.:
I agree subject to one qualification. There are also two points I wish to add. The qualification is that I would not myself say anything about Mr Tehan's "reverse engineering" argument. It is usually unhelpful to speculate as to what a sentence would have been absent a plea of guilty, but there are some cases where such an argument may with due caution be permissibly advanced. See, for example, R. v. Monardo[7].
[7][2005] VSCA 115 at [4].
The two additional points are these. First, as Chernov, J.A. has mentioned, counsel for the appellant submitted that the sentences imposed on counts 5 to 9 were inconsistent with those imposed on counts 1 to 4 and 10. The short answer to that submission may well be that the sentences on counts 1 to 4 and 10 were more merciful. If so, that does not impugn the other sentences if they, and the measure of cumulation directed in relation to them, were within the range. If there is a disconformity, it is not such as to impugn her Honour's overall synthesis: compare R. v. Albanus[8], R. v. Ash[9] and R. v. Bosio & Ors[10].
[8][2004] VSCA 236 at [9].
[9][2005] VSCA 43 at [30].
[10][2005] VSCA 209 at [34].
The second point is that I might have fixed a slightly lower non‑parole period if I had been the sentencing judge. But that is not the test. A court of criminal appeal is not entitled to substitute its own opinion for that of the judge merely because it
would have exercised its discretion differently. As the High Court said in Lowndes v. The Queen[11], that is basic, the discretion which the law commits to sentencing judges being of vital importance in the administration of our system of criminal justice.
VINCENT, J.A.:
[11](1999) 195 C.L.R. 665 at 671 [15].
I also agree that this appeal should be refused for the reasons advanced by Chernov, J.A.
Like Callaway, J.A., I acknowledge that whilst there may be some situations in which assistance can be derived from a consideration of the sentence that would have been appropriate in the absence of mitigating circumstances, to embark upon such an exercise would rarely be helpful and, in any event, would need to be approached with care. In this case, what counsel for the appellant endeavoured to do was to ascribe to the mitigating factors a particular value measured in years of imprisonment and say that, allowing for them, a sentence of specific length would otherwise have been ordered. As Chernov, J.A. pointed out, to do so runs quite counter to the approach which has been adopted in this Court for a number of years.
CALLAWAY, J.A.:
The order of the Court is – Appeal dismissed.
4
5
0