R v Franklin

[2008] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 40 of 2007

THE QUEEN

v

PAUL AMIET FRANKLIN

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JUDGES:	NEAVE and KELLAM JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2008
DATE OF JUDGMENT:	5 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 249

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CRIMINAL LAW – Sentencing – Sexual offences – Indecent acts and acts of sexual penetration – Seven victims – Children under 16 years of age and child aged 16 and 17 years of age – Children under care, supervision or authority of appellant scout leader – Total effective sentence of 10 years’ imprisonment with 8 year non-parole period not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Paul Vale Criminal Law

NEAVE JA:

1. I have had the considerable advantage of reading in draft form the reasons for judgment of Kellam JA.  I agree that the appeal should be dismissed, for the reasons given by his Honour.

KELLAM JA:

1. This is an appeal against sentence imposed by a judge of the County Court sitting at Melbourne on 23 February 2007.  The appellant was sentenced upon his pleas of guilty with respect to a range of sexual offences committed against seven separate male victims.  The offences took place between May 1988 and September 2000.

1. The presentment upon which the appellant was arraigned contained the following 30 counts to which the appellant pleaded guilty:

·     Indecent assault (counts 1 and 14), for which the applicable maximum penalty was five years’ imprisonment;

·     Gross indecency with a child under the care, supervision or authority of the appellant (counts 2, 3, 4 and 13) for which the applicable maximum penalty was three years’ imprisonment;

·     Sexual penetration of a child aged between 10 and 16 years who was under the care, supervision or authority of the appellant (counts 5, 6, 7, 8, 9, 10, 11, 12 and 15) for which the applicable maximum penalty was 15 years’ imprisonment;

·     Indecent act with a child aged 16 under the care, supervision and authority of the appellant (counts 16, 17, 18, 20, 21, 27, 28, 29 and 30) for which the applicable maximum penalty was three years’ imprisonment;

·     Sexual penetration of a 16-17 year old child who was under the care, supervision or authority of the appellant (counts 19, 22, 23, 24 and 26) for

which the applicable maximum penalty was ten years’ imprisonment;

·     Attempted sexual penetration of a 16-17 year old child under the care, supervision and authority of the appellant (count 25) for which the applicable maximum penalty was ten years’ imprisonment.

1. The sentencing judge imposed the following sentences:

Count 1 (indecent assault)	12 months’ imprisonment
Count 2 (gross indecency)	12 months’ imprisonment
Count 3 (gross indecency)	12 months’ imprisonment
Count 4 (gross indecency)	15 months’ imprisonment
Count 5 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 6 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 7 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 8 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 9 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 10 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 11 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 12 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 13 (gross indecency)	12 months’ imprisonment
Count 14 (indecent assault)	12 months’ imprisonment
Count 15 (sexual penetration of a child aged between 10 and 16)	36 months’ imprisonment
Count 16 (indecent act)	12 months’ imprisonment
Count 17 (indecent act)	18 months’ imprisonment
Count 18 (indecent act)	12 months’ imprisonment
Count 19 (sexual penetration of a child aged 16-17 under care)	42 months’ imprisonment
Count 20 (indecent act)	12 months’ imprisonment
Count 21 (indecent act)	12 months’ imprisonment
Count 22 (sexual penetration of a child aged 16-17 under care)	42 months’ imprisonment
Count 23 (sexual penetration of a child aged 16-17 under care)	42 months’ imprisonment
Count 24 (sexual penetration of a child aged 16-17 under care)	42 months’ imprisonment
Count 25 (attempted sexual penetration of a child aged between 16-17 under care)	18 months’ imprisonment
Count 26  (sexual penetration of a child aged between 16-17 under care)	48 months’ imprisonment
Count 27 (indecent act)	15 months’ imprisonment
Count 28 (indecent act)	12 months’ imprisonment
Count 29 (indecent act)	15 months’ imprisonment
Count 30 (indecent act)	15 months’ imprisonment

1. The sentence imposed upon count 26 formed the base sentence for the purpose of orders as to cumulation.  That count was an offence of sexual penetration of a child aged between 16 and 17 years who was under care and for which a sentence of four years’ imprisonment was imposed.  It was directed that the sentences imposed on counts 1, 2, 18, 21, 25 and 27 were to be served concurrently with the sentence imposed on count 26.  It was directed that two months of the sentence imposed on count 3, three months of the sentence imposed on count 4, three months of the sentence imposed on count 5, three months of the sentence imposed on count 6, three months of the sentence imposed on count 7, three months of the sentence imposed on count 8, three months of the sentence imposed on count 9, three months of the sentence imposed on count 10, three months of the sentence imposed on count 11, three months of the sentence imposed on count 12, two months of the sentence imposed on count 13, two months of the sentence imposed on count 14, three months of the sentence imposed on count 15, two months of the sentence imposed on count 16, four months of the sentence imposed on count 17, six months of the sentence imposed on count 19, two months of the sentence imposed on count 20, four months of the sentence imposed on count 22, four months of the sentence imposed on count 23, four months of the sentence imposed on count 24, two months of the sentence imposed on count 28, four months of the sentence imposed on count 29 and four months of the sentence imposed on count 30 be served cumulatively upon each other and upon the sentence imposed upon count 26.  The sentences and the orders as to cumulation resulted in a total effective sentence of 10 years’ imprisonment.  His Honour directed that the appellant serve a minimum term of eight years’ imprisonment before becoming eligible for parole.

1. On 2 November 2007 a judge of this Court granted leave to appeal.

1. The two grounds of appeal upon which the appellant relies are as follows:

1.The individual sentences, total effective sentence and non-parole period are manifestly excessive.

2.The learned sentencing judge erred in failing to take into account upon sentencing the appellant the substantial delay between his admission of the offences and sentence.

The offending

1. The appellant was born on 15 September 1971.  In his mid-teenage years he became a scout leader.  As stated above the appellant pleaded guilty to committing offences against seven separate male victims.  It is convenient to summarise his offences in respect of each victim.

Victim BH

1. The appellant came to know BH, the victim of counts 1 and 2, when he was engaged as a baby sitter by the parents of BH.  Soon after coming to know the appellant, BH joined a scout group where the appellant was a scout leader.  BH was then aged approximately 11 or 12 years.  On an occasion after BH had joined the scout group the appellant took BH to the appellant’s home, fed him and showed him a pornographic video.  Whilst the video was playing the appellant removed BH’s clothes and began to rub his genitals.  These events formed the basis of count 1, a count of indecent assault on BH.  The appellant was aged between 16 and 17 years at the time of the commission of this offence.  Having committed this indecent assault the appellant then undressed himself and showed BH how to masturbate him which BH did until the appellant ejaculated.  The appellant then masturbated BH until he ejaculated.  This conduct formed the basis of count 2, an act of gross indecency on BH who was then aged under 16 years and who was under the care, supervision and authority of the appellant. 

Victim AO’D

1. Between 16 October 1988 and 15 October 1989 the appellant was invited to the home of AO’D and his family for dinner.  AO’D was then aged approximately ten or 11 years.  The appellant knew his family through the Scouts’ Association.  AO’D was then in the cubs.  After dinner and when all others had gone to bed the appellant and AO’D continued to talk.  The appellant introduced the subject of girls and having sex with girls.  He then masturbated himself and AO’D masturbated himself.  This conduct constituted count 3, an act of gross indecency on AO’D who was under 16 at the time and under the care, supervision and authority of the appellant who was then aged either 17 or 18 years.  About one year later AO’D who was then aged approximately 11 or 12 years stayed at the appellant’s house overnight.  At the time the mother of AO’D was gravely ill with cancer.  The appellant and AO’D were in the spa when the appellant raised the topic of sex.  The appellant asked AO’D if he could masturbate him and AO’D agreed.  The appellant then asked the victim to masturbate him which AO’D did.  About six months later AO’D slept at the home of the appellant once more.  The appellant and AO’D shared a bed and massaged each other.  The appellant removed his clothes and AO’D and the appellant masturbated each other until ejaculation.  AO’D was under 16 and under the care, supervision and authority of the appellant who was aged 18 or 19 at the time.  This conduct took place between 1 January 1990 and 4 August 1991 and constituted count 4, a representative count.  Between 8 December 1991 and 31 January 1992 and about two or three weeks after AO’D’s mother had died of cancer the appellant stayed overnight at AO’D’s family home.  When everyone else was in bed the appellant and AO’D who were then in the lounge room talked about sex.  The appellant masturbated AO’D until he ejaculated and then he masturbated the appellant until he ejaculated.  AO’D then performed oral sex on the appellant, which events constituted count 5 a count of sexual penetration.  The appellant then performed oral sex on AO’D thus forming the factual circumstances of count 6 a count of sexual penetration.  AO’D was aged 13 and under the care, supervision and authority of the appellant at the time of these offences.  The appellant was then aged either 19 or 20 years.

1. On a further occasion when the appellant again stayed overnight at the home of AO’D’s family between 1 March 1992 and 30 April 1992 the appellant and AO’D had a spa together.  The appellant masturbated AO’D until he ejaculated and AO’D then masturbated the appellant.  He then performed oral sex on the appellant (count 7) and the appellant then performed oral sex on him (count 8).  The victim was then aged 13 and the appellant was aged 20 years. 

1. On a subsequent occasion and after taking AO’D to the movies the appellant stopped the car as he was driving AO’D home.  The appellant and his victim masturbated each other.  The appellant performed oral sex on AO’D (count 9) and AO’D performed oral sex on the appellant (count 10).  AO’D was at that time under the care, supervision and authority of the appellant, being aged 13 years.  The appellant was aged between 20 and 21 years.  Between 1 November 1992 and 1 June 1993 the appellant purchased a house.  AO’D attended at the house on one occasion to help the appellant clean it.  That evening the appellant and AO’D were seated in the lounge room.  The appellant raised the subject of sex and he and AO’D masturbated each other.  AO’D then performed oral sex on the appellant (count 11) and the appellant performed oral sex on him (count 12).  AO’D was under the care, supervision and authority of the appellant.  At the time he was aged 15 years and the appellant was aged 21 years. 

Victim JB

1. Between November 1989 and 30 April 1990 the appellant met JB through friends.  When JB was about 13 years of age he went to a beach with the appellant and another person.  The appellant and JB shared a tent.  The appellant masturbated JB before performing oral sex on the other person in front of JB.  This act of gross indecency was committed when JB was under 16 years of age and under the care, supervision and authority of the appellant who was then aged 18 years.  These circumstances formed the subject of count 13. 

1. Between 1 May 1990 and 13 December 1990 the appellant stayed in his parents’ house whilst they were away.  He invited JB and a friend over and together they watched a pornographic movie shown to them by the appellant.  When the appellant was alone with JB he put his hands inside JB’s pants and attempted to masturbate him but JB told him to stop.  The appellant did not persist.  These events formed the subject of count 14, an indecent act with a person under 16 years of age.  JB was then aged between 13 and 14 years and the appellant was aged between 18 and 19 years. 

Victim DAN

1. When DAN was 11 years of age he joined the scouts and met the appellant.  The appellant and DAN became friendly and engaged in scouting activities together.  The appellant talked with DAN about sexual subjects including masturbation and pornographic magazines.  He told DAN that he engaged in oral sex and masturbation with other friends.  When DAN was aged approximately 14 or 15 years the appellant showed him a pornographic movie.  After massaging his back the appellant masturbated him and then performed oral sex on him.  These events formed the subject of count 15, sexual penetration of a child aged under 16 years who was under the care, supervision and authority of the appellant.  The appellant was aged between 20 and 22 years.

Victim SB

1. The appellant befriended the family of SB and accompanied the family on a holiday during Easter of 1996.  SB was then aged 15 years.  The appellant talked with SB about sex, girls and masturbation and then each of them masturbated.  These circumstances comprised count 16.  The appellant was then aged approximately 24 or 25 years of age.

1. When SB was aged approximately 16 years he stayed overnight at the house of the appellant and worked in the garden during the day.  In the evening the appellant played a pornographic video and the appellant and SB masturbated until each of them ejaculated.  On a number of occasions SB did some casual work at the appellant’s home after school.  On one such occasion the appellant took SB into the house and played a pornographic video.  The appellant masturbated SB.  SB was 16 years of age and under the care, supervision and authority of the appellant who was then aged between 24 and 25 years.  These events formed the subject of count 17, a representative count of committing an indecent act. 

1. On another occasion the appellant invited SB into his bedroom and began to play a pornographic video during which SB and the appellant masturbated themselves.  The appellant then masturbated SB while continuing to masturbate himself.  SB was then aged 16 years and under the care, supervision and authority of the appellant who was then aged between 24 and 25 years.  These events formed the basis of count 18, an indecent act.

1. Between 11 January 1997 and 10 January 1998 while SB was working in the appellant’s workshop he and the appellant read pornographic magazines and watched a pornographic movie.  Each of them masturbated himself.  The appellant then performed oral sex on SB until he ejaculated.  On another occasion, after mutual masturbation the appellant performed oral sex on SB who ejaculated, after which he masturbated the appellant until the appellant ejaculated.  SB was aged 17 and under the care, supervision and authority of the appellant who was then aged 25 or 26 years.  Those circumstances formed the basis of count 19, a representative count of sexual penetration with a 17 year old child under care, supervision or authority. 

Victim MVR

1. When MVR was aged approximately 12 years he joined the scouts and met the appellant.  The appellant befriended the family of MVR and MVR commenced to work for the appellant on a casual basis in the appellant’s garage.  Between 30 September 1999 and 31 December 1999 and after MVR had completed some work in the garage of the appellant the two of them went into the appellant’s on-site caravan and undressed.  The appellant rubbed his naked body against MVR’s body and kissed him.  The appellant and MVR engaged in mutual masturbation until the appellant ejaculated.  MVR was aged 16 years and under the care, supervision and authority of the appellant who was then 28 years of age.  These events formed the basis of count 20, a count of committing an indecent act.  The appellant told MVR not to tell anyone about what had occurred, or else he said, MVR would be in trouble.

1. Between 1 November 1999 and 30 November 1999 the appellant took MVR away for a night and stayed in a motel.  A pornographic video was watched and MVR and the appellant engaged in mutual masturbation.  MVR was then aged 16 years and the appellant was aged 28 years.  This indecent act was the factual basis of count 21. 

1. Between 1 January 2000 and 30 April 2000 the appellant took MVR to a beach.  They shared a tent and engaged in mutual masturbation.  MVR then provided the appellant with oral sex until he ejaculated.  MVR was then aged 16 years and the appellant was aged 28 years.  MVR was under the care, supervision and authority of the appellant.  These matters formed the subject of count 22, a count of sexual penetration.  Immediately following these events the appellant performed oral sex on MVR.  This was the subject of count 23, a count of sexual penetration of a child aged 16 under the care, supervision and authority of the appellant. 

1. At approximately Easter time in 2000, MVR was working in a factory operated by the appellant.  The appellant inserted a finger into MVR’s anus when he was 16 years of age and under the care, supervision and authority of the appellant who was then aged 28 years.  This crime formed the basis of count 24, a count of sexual penetration.  Immediately upon committing this act the appellant attempted to insert his penis into MVR’s anus but as MVR found it too painful the appellant did not persist.  MVR was then aged 16 years and under the care, supervision and authority of the appellant.  This conduct constituted the subject of count 25, a count of attempted sexual penetration.  The appellant then asked MVR to penetrate his anus with his penis which he did.  This act of sexual penetration formed the basis of count 26.  In about July 2000 MVR’s parents told him that he was not to see the appellant any more.  MVR was upset and moved in to live with the appellant.  The appellant lived with MVR for a period of some years thereafter.  He was asked to leave the scouting movement because of this relationship.  Between 1 and 30 September 2000 the appellant and MVR went camping with another man.  The three of them shared a tent.  The appellant pulled MVR on top of himself and rubbed his body against that of MVR.  MVR was then aged 16 years and under the care,  supervision and authority of the appellant who was then aged between 28 and 29 years.  This conduct constituted an indecent act and formed the basis of count 27. 

Victim AH

1. The appellant met AH through the scouts and befriended his family.  When AH was aged 15 years he worked in the appellant’s workshop after school.  After some time the appellant invited AH to his home after work and offered to massage him.  As he did so the appellant brushed AH’s penis several times.  AH was then aged 16 years and under the care, supervision and authority of the appellant.  This indecent act which was committed between 1 January 1998 and 12 October 1998 comprised count 28.  The appellant was then aged between 26 and 27 years.  Approximately a week later the appellant offered AH another massage.  He played a pornographic video and asked AH to remove his underpants.  The appellant masturbated AH whilst masturbating himself.  Both of them ejaculated.  AH was then aged 16 years and under the care, supervision and authority of the appellant.  This indecent act formed the subject of count 29.  Following this it was a regular occurrence for the appellant to take AH to his home and play pornographic videos.  On one such occasion the appellant lay on top of AH and placed his erect penis between his victim’s thighs moving up and down until ejaculation.  He then masturbated AH until he ejaculated.  AH was then aged 16 years and under the care, supervision and authority of the appellant who was then aged either 26 or 27 years.  This indecent act which occurred between 1 January 1998 and 12 October 1998 formed the subject of count 30.

1. The offending conduct came to light in 2003.  The appellant was interviewed by police on 14 October 2003.  At that time the appellant was aged 32 years.  In the course of that interview he admitted having assaulted MVR and DAN sexually.  He denied having molested any other children sexually.  The appellant was interviewed again on 6 July 2004 when he made further admissions of his offending against other victims. 

1. Of the seven victims, five made victim impact statements which were tendered in evidence.  Those victim impact statements reflect in detail the consequences of sexual assault upon young people which are seen so consistently in this Court.  MVR described his loss of confidence and self-esteem, his suspicion of motives of others, his difficulties with friendships and relationships and his loss of trust in people.  AH wrote of lacking physical and mental strength to defend himself and is suffering flashbacks leading to tears and mental insecurities.  He has constantly questioned his sexuality and asked ‘I’m sure I’m not gay, but then why did it happen to me?’.  He has a continuing fear of failure including a failure to confront the appellant.  VH stated that what the appellant did to him made him feel less of a person.  He could not concentrate in class.  In describing what occurred at the time he said: 

My mother and father didn’t know what had happened to me and I couldn’t tell them.  I was afraid they wouldn’t believe me and that I would be blamed.  It wasn’t my fault.  I was only 11 and 12 years of age.   I was only a kid when Paul Franklin abused me and taught me things that kids shouldn’t know.  What he did to me wrecked my family life, wrecked my school life, ruined my close friendships and has affected my ability to be employed. 

He stated that at the age of 28 he still suffers from anxiety and anger. 
DAN described how he suppressed and ignored what the appellant did to him for some years and how his self-esteem and general happiness were affected adversely.  AO’D said that it took him many years to get his life back on track, he said that he had not sought counselling nor had he ever told anybody what had happened apart from two police officers.  He withdrew from his family and had not revealed what took place even to his long term partner.  He said:  ‘There is still too much emotional pain to deal with, and it still makes me sick to even think about it.’

1. The sentencing judge described the contents of the victim impact statements as being plausible and credible and he accepted that the conduct of the appellant had damaged his victims in an enduring and significant way.  In my view his Honour’s conclusion as to these matters was entirely justified.

The personal circumstances of the appellant

1. The appellant was born on 15 September 1971.  The offences committed by him were committed at a time when he was aged from approximately 16 years until the age of 29 years.  He was aged 35 at the time of sentencing.  At the time of sentencing he lived with his adoptive parents.  He was educated until part way through year 11, when he left school and began a motor mechanic’s apprenticeship which he completed.  As a qualified motor mechanic he conducted his own business from the age of 21 years.  For some years prior to the date of sentencing he had engaged in a property development and renovation business.  The appellant had no prior convictions.

1. In the course of the plea a report by a psychologist Mr Bernard Healey was tendered and Mr Healey gave evidence before the sentencing judge.  Mr Healey conducted intelligence testing of the appellant which revealed a full scale of IQ of 100, which he stated was of average capacity.  Personality testing did not indicate major psychological or emotional disturbance.  Mr Healey stated: 

It was evident that for some time he had struggled to come to terms with his “gay” disposition, and in that context engaged in regressive behaviour with younger, non-challenging males, and it was only when he developed an adult relationship that there emerged some maturation in his functioning.

In giving his evidence Mr Healey described the conduct of the appellant as paedophilic activity.  There can be no doubt that this was an apt description. 

1. In his sentencing remarks the sentencing judge observed that general and specific deterrence were matters of importance.  He said:

Those who are in positions of responsibility for others who are vulnerable, especially because of their young age, must see that exploitation in such circumstances is not tolerated, and that if and when brought before the courts to answer for such conduct, they are liable to appropriate punishment.  I consider that you too must be deterred.  Given the limitations in the opinion provided by Mr Healey, as discussed, I have reservations about the risk of your re-offending.  If Mr Healey’s view is to be accepted, you are to be regarded as being at the very early stages of fully appreciating the wrongfulness of what you did.  That you regarded your victims as your friends, and held a belief that they consented to what you did, suggests at least that you then had a disturbing lack of insight.  I consider that the risk remains that you do not even now fully understand the extent of your crimes.  That is apparent from Mr Healey’s evidence and from some of the submissions made for you.  The sentence must demonstrate the community’s strong disapproval of paedophilic crimes, particularly those committed by persons entrusted [with] the young in the community.

1. His Honour then turned to the prospects for rehabilitation of the appellant.  He said:

At the age of 35, you are still able to take a worthwhile place in the community.  You are qualified as a motor mechanic, and experienced in property renovation and development, and have a sound work record.  Your parents apparently support you, and you have other support in the community, particularly from Mr & Mrs Lowe.  [Mr & Mrs Lowe had given character evidence for the appellant on the plea]. 

Ground 1

1. It is submitted on behalf of the appellant that both the total effective sentence and the non-parole period imposed by the sentencing judge are manifestly excessive. 

1. In particular the sentence of four years imposed on count 26 (the base sentence) is submitted to be manifestly excessive.  It is argued that that count had a maximum penalty of ten years.  Counsel submits that in relation to that count the fact that the appellant was not to be sentenced as a serious sexual offender was of relevance.  The fact that the appellant made a full confession when first spoken to by police about MVR, had no prior or subsequent convictions and committed the offence at a time when he ‘misguidedly believed himself to be in a relationship with the victim’ are relied upon as matters of mitigation.  In attacking the sentence imposed on count 26 counsel points to the penalties which were imposed on counts 5 to 12 and 15 and 19 for counts which were serious sexual offender offences and which offences carried a maximum penalty of 15 years’ imprisonment.  In my view that submission ignores two matters of significance.  The sexual penetration of the victim which was the subject of count 26 was a particularly repulsive sexual assault, the victim being required to penetrate the anus of the appellant with his penis.  Furthermore the offences which were the subject of counts 5 to 12 were committed by the appellant when he was aged 20 to 21 years of age.  The offences which were the subject of counts 15 and 19 were committed when the appellant was approximately 21 and 25 years of age.  The offence the subject of count 26 was committed by the appellant when he was 28 years of age upon the victim who was then aged 16 years and who was under his care, supervision and authority.  In my view the judge was perfectly entitled to regard the offence the subject of count 26 as a most serious offence in all of the circumstances.  In my view no complaint can be made that a sentence of four years’ imprisonment on this count is manifestly excessive.

1. The next submission is that in any event the total effective sentence offends the principle of totality.  First it is argued that the base sentence is too high.  Secondly, it is submitted that some of the orders for cumulation reflect a breach of the totality principle.  It is submitted that the fact that the orders for cumulation have had the effect that a total of five years and two months’ imprisonment was imposed in respect of the offences committed against MVR, and a total of two years and nine months’ imprisonment was imposed in respect of the offences committed against AO’D, establish that breach.  This submission requires some consideration of the circumstances of the offences in respect of each victim.  Serious as they were, the offences which were committed against AO’D were committed against him when the appellant was aged between 17 or 18 years and 21 years.  This is a significant factor in terms of totality, and in my view reflects the fact that the sentencing judge did take into account the fact of the appellant’s age and immaturity at the time of the commission of those offences.  However it should be observed that the sexual penetration offences took place when the appellant was aged between 20 and 21 years.  The early offences, being offences of gross indecency, took place when the appellant was aged between 17 and 19 years.  The total sentence after accumulation of two years and nine months in respect of ten separate counts against AO’D including eight counts of sexual penetration of a child aged between 13 and 16 years, which offences took place over a period of at least one year, cannot be said to be excessive.  

1. In order to consider the complaint that the orders for cumulation in respect of the offences committed against MVR, which orders had the effect that a total term of imprisonment of five years and two months was imposed, are excessive and in breach of the principle of totality, it is necessary to examine the circumstances in some detail.  Counts 20 to 27 related to the offences committed against MVR.  The first offence of an indecent act with a 16 year old child under care, supervision or authority took place between 30 September and 31 December 1999.  The appellant was then aged 28 years.  The victim MVR first met the appellant through the scouting movement when he was 12 years of age.  The appellant befriended the victim’s family and offered MVR casual work in his garage.  The first offending behaviour consisted of indecent acts (20 and 21) whilst MVR was working as an employee of the appellant.  The victim was told by the appellant that he must not tell anyone of their activities otherwise the appellant would be ‘in big trouble’.  In November 1999 the appellant took MVR to a motel in Traralgon where the mutual masturbation the subject of count 21 took place after the watching of a pornographic video.  Thereafter, early in 2000 MVR stayed with the defendant at Rye Beach.  They shared a tent and mutual masturbation took place.  The appellant then asked MVR to perform oral sex on him which he did, until the point of ejaculation.  The appellant also performed oral sex on the victim.  The victim found the activity disgusting but thought it was a normal thing to do.  He thought that the appellant loved him.  Furthermore, in Easter of 2000 MVR was visiting the appellant’s house in Mooroolbark and working at his garage.  The appellant penetrated MVR by placing his finger in the victim’s anus.  The appellant also attempted to penetrate MVR’s anus using his penis which hurt MVR.  Thereafter the appellant asked MVR to penetrate him with his penis, which he did.  In July 2000 the victim’s parents stated that they did not want MVR to see the appellant any more.  MVR did not know why this was and in August of 2000 he left home and lived with the appellant until Easter of 2001.

1. In my view the sentences imposed in respect of the offending against MVR and the accumulation thereof cannot be said to be in breach of the principle of totality.  The offences took place in circumstances of a gross breach of trust.  The manipulative and predatory conduct of the appellant called for condign punishment.  The appellant was well aware of the criminality of his behaviour as is demonstrated by his warning to the victim to tell nobody of his offending.[1]  The age difference between the appellant and his victim was in the order of 12 years and in my view it simply cannot be said that the offences against MVR occurred in circumstances of lack of maturity of the appellant.  His victim was groomed and manipulated by the appellant in a most predatory and criminal manner.

   [1]MVR told police that the appellant had told him ‘not to tell anyone because of the trouble he would get into’.

1. It is argued further on behalf of the appellant that the sentence imposed appears to be ‘out of step’ with ‘other sentences of persistent sexual offending by a person in authority’.  Counsel relies first upon R v Howell[2].  In that case the Court of Appeal set aside a sentence of five years’ imprisonment with a non-parole period of two years and six months which had been imposed upon a female teacher who pleaded guilty to one count of maintaining a sexual relationship with a 15 year old male student.  In my view the cases are not comparable in any way.  The evidence before the Court in that case was that the prisoner was in an emotionally fragile state at the time of the commission of the offences.  She had been raped at the age of 14 years and she craved understanding and affection.  The evidence was that she was a vulnerable woman whose personality structure, adolescent experience, relationship history and life at the time of the offences led to their commission.  The evidence was that there was no indication of paedophilia.  In re-sentencing the appellant the Court concluded that her offending was lessened by her mental state.  She was re-sentenced to a term of imprisonment of three years with a non-parole period of 20 months.  

   [2][2007] VSCA 119.

1. The next case relied upon is that of R v DCP[3].  In that case the appellant, who was a mature aged school teacher, pleaded guilty to six counts of sexual penetration, two counts of committing an indecent act and one count of transmitting child pornography and another of possessing child pornography.   The offences of sexual penetration and committing an indecent act were committed against two girls aged 16 and 15 years who were under the appellant’s care, supervision or authority for the purposes of the Crimes Act.  The appellant was sentenced to a total effective sentence of seven years’ imprisonment with a minimum term of five years’ imprisonment before becoming eligible for parole.  The appeal was dismissed.  The circumstances of that case, although bearing some similarity to the present case, were nevertheless quite different.  There were two victims compared with seven victims in the current case and the offences were committed during a period of six months compared with a period of nearly eight years in the circumstances of the case now under consideration.  

   [3][2006] VSCA 2.

1. Likewise, the case of DPP v Ellis[4], a case whereby a female teacher pleaded guilty to six counts of taking part in an act of sexual penetration with a 15 year old male pupil at the school at which she worked,  is a significantly different case from that of the case under consideration. 

   [4][2005] VR 287.

1. R v Jobling-Mann[5] is also relied upon by counsel for the appellant.  That was a case in which a mature female pleaded guilty to two counts of participating in an act of sexual penetration with two boys aged between ten and 16 years.  The counts were representative in nature.  The offences took place between September 1998 and January 1999.  A sentence of 18 months with a minimum term of six months’ imprisonment to be served before becoming eligible for parole was imposed by the County Court.  The application for leave to appeal was dismissed.  Likewise as with the previous cases the circumstances of the case relied upon by counsel differ greatly from those in the instant case.

   [5][2000] VSCA 3.

1. Counsel relies further upon a case of R v Cleary[6] in which the applicant pleaded guilty in the County Court to four counts of taking part in sexual penetration with a child under the age of 16 years.  The applicant was 29 years of age and his female victim was 14 years of age.  The applicant was sentenced to a total effective sentence of four years’ imprisonment and it was directed that he serve one year and nine months of that sentence before becoming eligible for parole.  Upon appeal the sentence was reduced to a total effective sentence of two years and eight months’ imprisonment with a non-parole period of 15 months.  The circumstances of that case, however, were entirely different from those which are now before the Court. 

   [6][2004] VSCA 14.

1. Finally, counsel relies upon R v O’Neill[7] which involved circumstances whereby the appellant had committed numerous sexual offences against underage boys over a period of 21 years.  He was sentenced to a total effective sentence of 14 years and two months’ imprisonment, the sentencing judge directing that he serve a minimum term of 11 years’ imprisonment before becoming eligible for parole.  The offender was aged 60 years at the time of sentencing, the last of his offences having been committed in 1993 and his sentence having been imposed in 2004.  There was evidence before the Court that he suffered from remorse and that he had rehabilitative prospects.  The total effective sentence was not set aside by the Court although a non-parole period of ten years was imposed on re-sentencing.  In my view the circumstances of the case before the Court can be distinguished from those of O’Neill notwithstanding that there are some similarities.  I do not consider that the cases relied upon by the appellant’s counsel establish that the sentence imposed in the case now before us is in any way out of step with other cases. 

   [7][2005] VSCA 248.

1. Finally under ground 1 the appellant submits that the non-parole period fixed and which constitutes 80 per cent of the effective head term cannot be justified given the finding of remorse by the judge, the full confession and early plea, the fact that the appellant had commenced to gain some insight into his offending, the fact that the appellant would undergo a sex offenders’ programme in custody and be subject to supervision upon release, and the fact that the appellant could support himself in the community.  In addition the appellant relies upon the issue of delay.  Counsel for the appellant submits that the non-parole period fixed invites scrutiny as a consequence.  He relies upon R v VZ[8].

   [8](1998) 7 VR 693.

1. As is clear however from VZ, a very short, or alternatively a very long, parole period relative to the head sentence may invite scrutiny.  The true task of an appellate court in circumstances where challenge is made to the non-parole period fixed at sentence, on the grounds of manifest excess, or of manifest inadequacy is to decide whether the non-parole period is outside the range reasonably open to the sentencing judge in the proper exercise of the sentencing discretion.  In the case before us the sentencing judge did not give any reasons for fixing the non-parole period that he did.  However the fact that he did not do so does not create a presumption of error.  In taking all of the relevant matters into account, the question before us is whether it was reasonably open to the sentencing judge to impose a non-parole period of eight years in this case. 

1. The first of those circumstances is that the offences before his Honour were serious indeed.  During a period of 12 years the appellant committed numerous offences against his seven victims.  His involvement in the scouting movement enabled him to meet and cultivate friendships with multiple families. After obtaining the trust and approval of those families the appellant then cultivated individual friendships with the pre-pubescent or pubescent males of the family.  It can be seen that having established a trusting relationship with these young boys the appellant introduced into the friendship discussions about sex and girls.  From there he progressed to introducing pornography to the boys.  At times he offered certain of his victims employment in his mechanic’s garage or around his house and would then molest his victims.  On other occasions he took his victims on camping trips, to the movies, or for trips in his motor car, and ‘sleepovers’ at his house, before molesting them.  In the case of MVR the appellant entered into a de facto relationship with a 16 year old boy who had run away from home after his parents refused to allow him to continue his friendship with the appellant.  The behaviour of the appellant was manipulative and predatory in the extreme and in general his offences involved gross deception of the parents of his young victims and breach of the trust reposed in him by them.  As the judge recognised, general deterrence loomed large before him. 

1. The judge considered further that specific deterrence remained a matter of significance.  His Honour was fully justified in coming to this conclusion.  The evidence of Mr Healey was far from fulsome in establishing that the appellant had any real insight into his offending behaviour.  Mr Healey stated that the appellant’s rehabilitation was in its ‘early beginnings’.  As Callaway JA said in R v VZ where either general or specific deterrence is important ‘that objective should not be undermined by an unduly short non-parole period’[9].  In this case both general deterrence and specific deterrence remained as significant sentencing principles.

   [9]At 698.

1. Although his Honour accepted that the appellant had expressed remorse, the evidence before him did not establish that such remorse was overwhelming.  In answer to a question asked by counsel for the appellant on the plea, as to whether the appellant was by that time aware of the ‘illegality and seriousness’ of the offences, Mr Healey said as follows: 

Yes, I think with the benefit of hindsight, and with the assistance initially from police, he’s really developed a sense of self reproach [remorse] over what has happened, but as he said in his record of interview more than once, I think, he regarded these people as friends, it was a matter of experimentation, which again mirrors a lot of the responses one receives over the years for a range of sexual offenders.  That doesn’t mean to say that they are evasive or that they are trying to be devious, that is what happens with that type of behaviour, there’s a rationalisation, and I think that fits fairly clearly with his thinking, his rationalisation.

Mr Healey gave evidence that it was likely that the appellant would receive the benefit of sex offender programmes whilst in prison to assist in the development of insight into his condition.  He also gave evidence that it was likely that the appellant would be required to continue such courses whilst on parole.  Accepting that there is a probability that the appellant will be offered such courses, that is nevertheless no reason to argue that the period of eligibility for parole should be lengthy.  His Honour found that the appellant is a qualified motor mechanic and experienced in property renovation and development and has a sound work record.  He noted that the appellant has strong community support both from his parents and from other members of the community.  There is nothing in the personal circumstances of the appellant to call for a long period of eligibility for parole.  I consider that the non-parole period fixed by his Honour cannot in the circumstances of this case be said to be manifestly excessive.  In my opinion he was entitled to form the view that in the circumstances of this case the minimum term of imprisonment which justice required to be served by the appellant was eight years imprisonment and his reasons provide sufficient explanation for why he decided to do so.

Ground 2

1. Counsel for the appellant relies upon the delay in the matter coming on for hearing before his Honour.  It would appear that the appellant came to the attention of the police as a result of a complaint by MVR either in late 2002 or early 2003.  The appellant was interviewed on 14 October 2003 and admitted the offences against MVR.  He volunteered the name of DAN as a person against whom he had offended but denied any other offending.  He was interviewed further on 6 July 2004 when he was told that further investigations had been conducted.  There was further clarification of the offences involving DAN.  When asked about AH, BH, SB and JB the appellant volunteered that he had offended against them and either gave details of his offending or indicated acceptance of the victim’s account of events.  In relation to AO’D the appellant admitted offending against him but contended that he was unable to give specific details of the offending.  At a committal mention on 27 March 2006 the appellant was committed for trial at the County Court.  He entered a plea of guilty at the time of the committal.  The matter first came before the County Court in August 2006, the hearing of the plea being adjourned on a number of occasions because the appellant had difficulty in funding legal representation.  Finally his plea was heard on 23 January 2007 and he was sentenced on 14 February 2007.  It is submitted that the delay was a feature of the case that could not be overlooked as a matter of mitigation in the imposition of sentence.  It should be noted that delay was not relied upon by counsel for the appellant at the plea as a factor to be taken into account in mitigation.  The major delay in the process was the period of 21 months from the time between the admissions made by the appellant to police on 6 July 2004 until his committal for trial on 27 March 2006 when he entered a plea of guilty.  This was a period of 21 months.  Subsequent to his committal for trial, the matter was listed for plea on 21 August 2006 and it was on the application of the appellant that the matter was adjourned a number of times.  As is apparent from the transcript of the appellant’s applications for adjournments during this period of time he was continuing to conduct his renovation business and was engaged in the buying and selling of property during the period in question.  Of course it is true that he had the matter hanging over his head from the time of committal until the time of his plea in the County Court.  It is true that his Honour made no reference to that matter but clearly his Honour was well aware of the history of the proceedings,

and such delays as there were. Indeed in the course of an adjournment application
on 23 January 2007 his Honour referred specifically to the time which had elapsed.  In the end result I do not conclude that the delay in this case unsatisfactory as it was, is a matter of which his Honour was unaware nor do I conclude that it is such as to warrant considerable weight being attributed to it in the exercise of his sentencing discretion.

1. For the above reasons I would dismiss the appeal. 

OSBORN AJA:

1. I have had the benefit of reading the reasons of Kellam JA and I agree with them and his conclusions. 

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