R v Ellingford
[2001] VSCA 29
•21 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 255 of 2000
| THE QUEEN |
| v. |
| CHRISTOPHER ARTHUR ELLINGFORD |
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JUDGES: | PHILLIPS and BATT, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 March 2001 | |
DATE OF JUDGMENT: | 21 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 29 | |
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CRIMINAL LAW - Sentencing - Sexual penetration of child between 10 and 16 - Seven counts - Offender 37 years old and complainant 14 - Meeting through an Internet chat room - Two episodes of sexual activity - Three years' imprisonment (minimum of 18 months) not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.J. Ryan | Solicitor for Public Prosecutions |
| For the Appellant | Mr. N. Papas and Mr. R. Backwell | Victoria Legal Aid |
PHILLIPS, J.A.: (delivering the judgment of the Court):
This is an appeal against sentence by leave granted by a single Judge of Appeal under s.582 of the Crimes Act.
The appellant, who is now 38 years of age, pleaded guilty in the County Court on 30 June 2000 to a presentment containing seven counts of sexual penetration of a child between 10 and 16, contrary to s.46(1) of the Crimes Act 1958. This offence carried a maximum penalty of 10 years' imprisonment.
The appellant had no previous convictions at all. On 10 July and 13 July 2000 a plea was made in mitigation by counsel on his behalf and character evidence was led, both viva voce and in documentary form. There was a report from Mr Joblin dated 17 December 1999 and the judge called for a psychiatric report, which was subsequently provided by Dr Lester on 8 August 2000. On 4 September 2000 the appellant was sentenced as follows: to two years' imprisonment on each of counts 1 to 5 and to three years' imprisonment on each of counts 6 and 7. These sentences were ordered to be served concurrently so that the total effective sentence was of three years' imprisonment. The non-parole period was fixed at 18 months. It was declared that 61 days already spent by the appellant in custody was to be reckoned as time served under these sentences.
Although it seems plain that, in relation to counts subsequent to the first two, the appellant was a serious sexual offender by reason of Part 2A of the Sentencing Act 1991, no declaration was made that the appellant had been sentenced as such, although in the sentencing remarks passing reference was made to his being a serious sexual offender. His Honour's order for concurrency perhaps satisfies the requirements of s.6E, but it is the fact that no reasons were given by his Honour for not ordering cumulation.
The appellant now appeals and six grounds are given in the notice of application. The first is that the sentence is manifestly excessive and, of the others, two are not pursued. The remaining three are that the judge gave undue weight to one consideration or insufficient weight to two other considerations, but it was accepted in argument that such grounds, in the end, amount to particulars of the first, that is, that the sentence was manifestly excessive. Indeed, in argument, Mr Papas, who appeared today for the appellant, emphasised that the appellant was not alleging specific error. Such references as he made in argument to the judge's sentencing remarks were intended, he said, to show grounds for concluding manifest excess and were not meant to demonstrate specific error.
The circumstances of the offending need be described only very briefly. At the time of the offences the appellant was 37 years old. The complainant was 14. They met on the Internet in April 1999, the appellant using the name "Templar" and the complainant, the name "Sharna". They met in what we were told was a “chat room”. They discussed different topics - hobbies, where they lived and their work. The appellant told the complainant that he was 33 years old and lived in Balwyn. The complainant told him that she was 18 and worked as a sales assistant. They exchanged telephone numbers. On one occasion the appellant rang the complainant's home and spoke to her mother. He was told on that occasion that the complainant was 14, or it may be 15, years of age.
The appellant and the complainant agreed to meet on 31 August 1999. The appellant picked the complainant up in his motor car and after purchasing alcohol at a nearby hotel they parked at a service station, where the sexual activity which is the subject of count 1 took place. The appellant then took the complainant to his house in Balwyn, where the subject matter of counts 2, 3, 4 and 5 occurred. Count 5 charges an act of full sexual intercourse.
At about 1.10 a.m. on 1 September the complainant's mother rang the police and reported her daughter missing. A policeman attended the appellant's house shortly afterwards and the appellant told the policeman that the complainant was in his bed. The policeman informed the appellant that the complainant was 14 years of age. The complainant, however, denied that any sexual activity had taken place and she was returned by the police to her parents.
The appellant and the complainant arranged to meet again on Friday 22 October 1999. The appellant picked the complainant up in his car and took her to his residence. On this weekend the sexual activity which is the subject of counts 6 and 7 took place. On Sunday 24 October the police arrived at the appellant's home. The appellant told the complainant to hide in the wardrobe and informed the attending officer that she was not present. A search of the premises, however, revealed the complainant hiding in the wardrobe.
The appellant was interviewed by police on 25 October. He admitted engaging in penetrative sex with the complainant and said that he was aware that the complainant was under 16 years of age.
As I have said, the appellant now complains that the sentences imposed on these seven counts of sexual penetration of a person under the age of 16 were manifestly excessive. We have listened very carefully to what has been said to us this morning and we have considered all that has been put to us in the outline of argument, which we find helpful. We also have the transcript of the plea below and the record of interview, which also assist us, but at the end of the day, as Mr Papas accepted, a plea of manifest excess bears little elaboration. A sentence which has been imposed either is or is not manifestly excessive.
Unfortunately for the appellant, we think that the ground has not been established. In our opinion the sentences imposed were well within the range that was open to the sentencing judge. In saying that we do not overlook the personal circumstances of the appellant. All that can be said in his favour - including his previous good character, his plea of guilty, his remorse, his admissions to the police, the destruction of his career as a teacher - are matters to be weighed in sentencing, including the serious impact upon him of the death of his father. In listing these things we do not mean to be exhaustive, but, when all is said and done at the end of the day, having regard not only to the circumstances of the offender but also to the circumstances of the offending, we think that the sentences are, if anything, lenient. On both the occasions when they met the appellant well knew that the complainant was under 16 and his pursuit of her is clear from the taped extracts of their conversations in the “chat room”, extracts which, we would add, belie his attempt in the record of interview to paint himself as, in effect, an innocent victim. It is noteworthy, we think, that no cumulation was ordered, notwithstanding the discrete nature of the two episodes of the offending. Some cumulation might have been ordered. Its absence is simply underlined when reference is made to the provisions relating to serious sexual offenders in, especially, s.6E and to the fact that the judge gave no reasons for failing to order some cumulation.
For these reasons, being of opinion that none of the grounds of appeal have been made out, and in particular that the sentences imposed were certainly not manifestly excessive, the appeal must be dismissed.
The order of the Court is:
Appeal dismissed.
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