R v Glen
[2001] VSCA 169
•10 September 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 135 of 2000
| THE QUEEN |
| v. |
| GAVAN MAXWELL GLEN |
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JUDGES: | WINNEKE, P., VINCENT, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 September 2001 | |
DATE OF JUDGMENT: | 10 September 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 169 | |
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Criminal law - Sentence - 22 charges involving sexual offences against young boys - Manifest excess - Individual sentences within range available - Effective sentence manifestly excessive - orders for cumulation set aside.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F. Walsh | Ms. K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr T.E. Wraight | Andrew Fraser & Associates |
WINNEKE, P.:
I invite Vincent, J.A. to give the first judgment in this application.
VINCENT, J.A.:
The applicant pleaded guilty before the County Court sitting at Bendigo to two counts of indecent assault on a male person under the age of 16 years (counts 1 and 2); eight counts of the sexual penetration of a child between the ages of 10 and 16 years (counts 3, 7, 8, 9, 10, 14, 19 and 21); seven counts of indecent assault (counts 4, 5, 6, 12, 13, 15 and 16); one count of procuring an act of gross indecency with a male person (count 11); three counts of a commission of an indecent act with a child under the age of 16 years (counts 17, 18 and 20); and one count of stalking.
After hearing a plea in mitigation of penalty the sentencing judge imposed the following terms of imprisonment:
Count 1- one year
Count 2- one year
Court 3- three years
Count 4- one year
Count 5- two years
Count 6- one year
Count 7- three years
Count 8- three years
Count 9- six years
Count 10- six years
Count 11- six months
Count 12- one year
Count 13- two years
Count 14- four years
Count 15- two years
Count 16- two years
Count 17- two years
Count 18- two years
Count 19- four years
Count 20- two years
Count 21- four years
Count 22- one year
His Honour directed that the sentences imposed on counts 4, 9, 19 and 21 were to be served cumulatively upon each other and that the remaining sentences were to be served concurrently with the sentence imposed on count 9. This created a total effective sentence of 15 years' imprisonment in respect of which a non-parole period of 11 years was fixed.
The applicant now seeks leave to appeal against the individual sentences, the effective term of imprisonment imposed and the non-parole period fixed, on four grounds. A further ground set out in the notice of application has been abandoned and need not be addressed.
The applicant, who was born on 26 January 1961, is now aged 40 years. The offences were committed between 1 January 1980 to 22 July 1999. Accordingly, he ranged in age from 18 to 38 years at the relevant times.
Although I do not consider that it is necessary to set out in extensive detail the circumstances surrounding the commission of the various offences, some reference to them is required.
Count 1 (a representative count) - relates to the commission of an indecent assault upon a 10 year old boy, the first victim, with whose parents the applicant had become friendly. The applicant would visit the boy's parents and stay overnight in their home from time to time. From 1980 to 1983, when the boy was between 10 and 13 years of age, the applicant engaged in acts of mutual masturbation with him.
Count 2 - In 1980 and on the first occasion on which the applicant assaulted this young person, he took the boy's hand and placed it around his penis and instructed him how to engage in masturbation. He then placed the child's penis in his mouth before rolling him onto his back and placing his erect penis between the child's legs. He then began to move it in and out between them. He requested the boy to suck his penis but the child started to cry and he desisted. He then told the boy to return to his own bed and not to inform his parents of what had happened.
The assaults on this victim ended after the child informed his parents of the abuse that was taking place.
Count 3 (a representative count) - Our attention was drawn to the fact that the particulars of the offence alleged in this count, and which was committed against the second victim, were incorrectly stated in the presentment. It is there asserted that the penis of the child penetrated the mouth of the applicant whilst the reverse was the case. Counsel for the applicant conceded that the judge dealt with this count on the correct factual basis and that nothing could turn on the misdescription in the statement of particulars.
The second victim, who was 8 years of age at the time, was introduced, in 1979 to the applicant, who was a close friend of his mother and, indeed, the applicant later became the godfather to the victim's younger brother. During the summer of 1981, the applicant, who knew of the boy's interest in playing board games, asked the victim if he would like to come to his home to play some games that he had. The child, who was then 10 years of age, accepted the invitation. The applicant was at that time living in a caravan at the rear of his parents' home. In the caravan the child was shown a condom and the applicant demonstrated its use. The applicant lay naked on his bed and masturbated his penis until it became erect. He then placed the child's hand on it and made the child continue with this activity.
Later in 1981 the applicant went with the second victim's mother, younger brother and the young boy to Shepparton. They stayed in premises with only one bedroom. The applicant and the child slept in sleeping bags on the loungeroom floor. During the night, the applicant undid the child's sleeping bag and sucked on his penis. The child awoke but pretended to be asleep, being too frightened to move. Approximately two months later the boy was asleep in his bed when the applicant, in whose charge he had been left for the evening, picked him up and took him into his mother's bedroom where he was placed on a double bed. The victim's pants were removed and the applicant began to masturbate and suck his penis.
Count 4 - The applicant then totally stripped the child and rolled him onto his stomach. He positioned himself on top of the boy and indecently assaulted him, pushing his penis hard against the boy's anus.
Count 5 - During the summer of 1981/1982, the applicant encountered his third victim, who was 11 years of age, at the Nyah Two Bays Swimming Club. This boy had been a member of that club from a quite young age and knew the applicant, who had visited his family's home on about half a dozen occasions as a senior member expressing interest in his swimming potential. On one occasion, and at around midday, when the victim was at the club the applicant invited him into the male changing rooms. He then stood between the child and the exit door, which he locked. The applicant pulled down his shorts exposing his erect penis and masturbated to ejaculation. The boy attempted to run around him but the applicant grabbed him by his hand which he then momentarily placed on his penis. As he released his grip the boy ran out of the change room.
Count 6 - In January 1986 the applicant was living in Bendigo. He had befriended the mother of the fourth victim. She has stated that she trusted the applicant "with the world, and that included my children". The applicant was involved with the YMCA and would take these children to activities organised by that body. During the course of an evening on which the applicant was holding a party at his home, at approximately 7:30 p.m. the boy, who was eight years of age, was sent to bed by his mother. He was sleeping on a mattress on the floor in the applicant's bedroom when, during the night he was awakened by the applicant and told to get into bed with him. When the boy did so he observed that the applicant was naked. The boy positioned himself on one side with his back towards the applicant who reached around him and began to masturbate him. The applicant then placed his penis between the child's legs and began to move in and out. He took hold of the child's hand and placed it on his own penis. He then made the child masturbate him.
Count 7 (a representative count) - The applicant was introduced to his fifth victim in 1983. He was a trusted family friend, having been acquainted for many years with the boy's mother who regarded him as an older brother. This count relates to a period between August 1988 and February 1991 when this boy was aged between 10 and 14 years. In 1988, when he was 10 years of age, the applicant invited him for a holiday to his home in Camberwell. Whilst there the applicant showed him a Polaroid camera. He then requested the boy to change into bathers and took photographs of him. He then directed him to remove the bathers so that he was naked and photographed him in that state. The victim was afterwards taken into the applicant's bedroom where he was placed on a bed. The boy was masturbated and the applicant sucked his penis. This behaviour took place regularly over the period that the child was staying with him.
Count 8 (a representative count) - In the summer of 1988 and 1989, the applicant stayed with the fifth victim and his mother at their home in Bendigo. During this period, the applicant requested the boy to lay on a bed in his mother's bedroom. He instructed the child to remove his clothing and to adopt various positions for the applicant to photograph. After the photographs were taken the applicant positioned himself on the bed next to the boy and began to masturbate him. The victim then masturbated the applicant and placed his mouth over the applicant's penis.
Count 9 - During 1989 the fifth victim attended the applicant's home in Melbourne. He was shown a dildo by the applicant who demonstrated anal intercourse with it. He made the boy take hold of the article and move it in and out of the anus of the applicant. On or around the same day there were further acts of mutual masturbation and fellatio. He then suggested to the child that they try "something different". He moved the boy on to his hands and knees on the bed and anally penetrated him. The child found this to be painful and told the applicant to stop. The boy was 11 years old at the time.
Count 10 - On the occasion referred to in count 9, and at the direction of the applicant, the boy anally penetrated the applicant.
Count 11 - The applicant continued to engage in these various forms of abuse on the fifth victim over a lengthy period of time and took numerous photographs of the child naked and in various sexual positions, including performing acts of oral penetration. In one photograph taken when the child was 11 years of age he was depicted lying on a bed with the dildo in his anus, as instructed by the applicant.
Count 12 - During the period between 1989 and 1993 the next, and sixth victim who was aged between 7 and 10 years, went to the home of the applicant's mother in Swan Hill. The applicant was a family friend who used to visit the victim's grandparents' home. He would also visit the child's family, bringing them presents. During this visit the applicant took the child into a room at the rear of the house and began to speak to him about personal hygiene. He then removed the child's pants. In pretence of explaining matters of hygiene to the boy he began to masturbate him. This continued for a short time until the child requested him to stop.
Count 13 - During December 1993 another young boy aged 10 years, the seventh victim, went to visit the applicant at his mother's home in Swan Hill. The applicant had gained access to this child through his friendship with the boy's grandparents. On seeing a condom on a table in the house he asked the applicant what it was. The applicant then took him to a room adjacent to the back verandah in the premises where he removed the boy's pants and then his own. He masturbated his own penis until it became erect and he placed the condom on it. He then took the child's hand and placed it on his penis and continued to masturbate. He then removed his hand and the child continued with this activity. The applicant then masturbated the child.
Count 14 - After a while on the same occasion the applicant placed his mouth over the child's penis and began to suck.
Count 15 - During the weekend of 26 and 27 September 1998 the applicant stayed at the home of the eighth victim who was nine years of age. The applicant was at that stage a long-time friend of the child's mother. The applicant slept in the boy's bedroom along with the child and a young friend, the victim of the offence contained in the next count. During the night the applicant approached the eighth victim, placed his hands inside the boy's pyjamas, and masturbated him.
Count 16 - After a short period he went to the bed of the other boy, the ninth victim, and placed his hands under the sheets and on top of the boy's pyjama pants. He then masturbated this child. This boy was aged 11 years at the time of the incident.
Count 17 - The tenth victim met the applicant, during 1995, through his father's girlfriend who was a friend of the applicant. Between April 1998 and April 1999 the applicant visited the boy at his home. On one occasion he followed him into his bedroom where he requested him to lie on his bed and pull down his pants. The applicant then masturbated the child. He removed his own pants and exposed his penis. He then requested the child to masturbate him.
Count 18 - Between January 1999 and April 1999 the applicant invited this young person into a bedroom at the applicant's home. He produced a Polaroid camera and requested the boy to take his pants down and lie on the bed. He did so. The applicant masturbated the child's penis until it was erect. He then took a photograph of him. This victim was 14 years old at the time.
Count 19 - On 21 January 1999, the eleventh victim and his family moved into premises that backed on to the rear yard of the applicant's home. After some initial contact the applicant and the members of the child's family became friends. One weekend morning, between 21 January 1999 and 20 July 1999, when the boy was 10 years of age, the applicant and he went for a bicycle ride. Upon its completion, they returned to the applicant's unit. Once inside, the applicant invited the child into his bedroom. He produced a Polaroid camera and removed the boy's pants. He asked the child to lie on the bed and proceeded to take photographs of him. The victim then took a photograph of the applicant laying naked on his bed. About a month later the applicant again asked the boy to come into his bedroom. When he did so, the applicant pulled down his pants and placed him on the bed. The applicant then placed his mouth over the child's penis and proceeded to suck it.
Count 20 (a representative count) - During May 1999 this victim went to the applicant's premises where the boy was again taken into the applicant's bedroom. The child's pants were removed and the applicant engaged in masturbation in front of the child. He repeated this conduct on two further occasions.
Count 21 - On one occasion on which the same victim was present at the applicant's house, the applicant put on some gloves and applied lubricant to his fingers. He then inserted a finger into the child's anus.
Count 22 - On Wednesday 14 July 1999 the applicant attended at the home of a female witness and asked if he could take her dog for a walk. He wanted to pass the school of the eleventh victim, but did not want to look suspicious. He stood near the school fence until the boy approached him. The applicant gave the child a chocolate frog and a business card, indicating that he could contact him by telephone if he ever wanted to talk, or wanted money or lollies. The child informed his mother on the same night of the applicant's conduct.
On Thursday 22 July the applicant again approached the female witness requesting permission to take her dog for a walk. He went to the vicinity of the school where he encountered the mother of the child. He was told to stay away from the boy and not to approach him or any other member of the family again.
The Grounds:
As I have indicated, before this Court the contention has been advanced that some of the individual sentences and the total effective sentence imposed upon the applicant were manifestly excessive in the circumstances. With respect to the factors militating in favour of mitigation to which our attention has been directed, and to which it was claimed insufficient regard was had by the sentencing judge, I observe that his Honour specifically adverted to the early entry of a plea of guilty, the absence of any prior convictions, and the long period of service given by the applicant to the community through his involvement in the Army Reserve. The judge indicated that he had had regard to the report of a psychologist, Mr Bernard Healey, that had been provided to him. This report contained information concerning the applicant's health and personal circumstances. There was no reason to suppose that his Honour did not take these matters appropriately into account.
Reference was made in the course of the plea to the age of the applicant at the time of the commission of some of the earlier offences, it being asserted that in respect of them he should have been sentenced as a young offender. As counsel appearing for the applicant then contended, the sentencing of young persons requires that emphasis be given to two very significant considerations, namely, the level of maturity of the individual at the time the offence was committed, and the importance of rehabilitation. In this case, and many years later, only the former is relevant with respect to sentencing for these early offences. The sentences imposed on counts 1 to 8 were well within the range available to the sentencing judge and no complaint has been advanced with respect to any of them. In practical terms, as a consequence of his Honour's orders for cumulation, the applicant was required to serve an additional year of imprisonment for the commission of the offences in the period during which he could be appropriately described as a youthful offender. This approach could hardly be described as harsh or to indicate a disregard of the applicant's age at the time that they were committed.
Although his Honour made no specific reference to the evidence with respect to remorse, or the applicant's prospects of rehabilitation in his sentencing remarks, he did indicate that he was mindful of the evidence and submissions advanced on his behalf in the course of the plea. The sentencing judge possessed great experience in dealing with matters of the kind before him and can reasonably be assumed to have taken these matters into account. In any event, even if his Honour had attributed little weight to the applicant's expression of remorse, he would, in my opinion, have been entirely justified in so doing. The applicant had been engaged in repeated offending for approximately 20 years. He kept records setting out the number of persons within a particular age bracket that he had offended against and the number of circumcised and uncircumcised boys. He had boy's underwear and a collection of pornographic material in his possession. The applicant did co-operate with the police by the production of some of these items. That factor must be taken into account in his favour, but it is a very different matter to perceive in it any indication of genuine remorse. The sentencing judge clearly had some reservations concerning the sincerity of the applicant's expression of regret and his assurances for the future, as he remarked at one point:
"In these offences general deterrence, that is, a stern sentence to deter others, must be imposed. I also consider it is necessary for specific deterrence, in your case despite your promises."
This view of the situation was, in my opinion, reasonably open to him in the circumstances.
A. Separate Counts:
With respect to the specific sentences in relation to which complaint is made, first it was argued on behalf of the applicant that although the conduct involved in the offences of anal penetration contained in counts 9 and 10 merited the imposition of substantial terms of imprisonment, in neither case did it require the fixing of a period of six years.
It has not been argued with respect to these counts that the judge failed to have regard to any relevant sentencing principle, nor has it been asserted that any specific error was made by him.
As I have already mentioned, each of these offences involved the sexual abuse of an 11 year old boy. When considering the individual sentences handed down by the judge upon the applicant, it must be borne in mind that whilst it was necessary for his Honour to impose an appropriate sentence for each separate offence, in assessing the level of culpability involved in each, the context within which they were committed had to be taken into account.
Although they were committed on the same occasion, the offences related to separate and serious criminal acts. The background included the use of a dildo to penetrate the anus of the applicant, mutual masturbation and fellatio, culminating in mutual anal penetration. Each of the offences was, accordingly, perpetrated in circumstances of considerable aggravation. Each took place at the instigation of the applicant, and each involved serious abuse of the trust reposed in him by the applicant's mother.
The applicant had, from a quite early age, developed an unfortunately effective modus operandi under which he carefully and skilfully manipulated social situations so that he was able to offend against persons who came within his target group, namely, males in the seven to 11 year old age group. He is an extremely intelligent individual with an IQ assessed at 127 who used his friendship with the parents or other adults associated with suitable victims to infiltrate their families. This enabled him to create opportunities for abuse of which he then took advantage.
It is not to the point, as suggested by his counsel in the course of his submissions, that the applicant employed stealth rather than overt violence to violate his prey. No sensible distinction can be made in the circumstances which is capable of reducing the applicant's high level of culpability. A cunning predator can accomplish his design by indirection, sometimes more easily avoid detection and over many years and cause massive and irreparable damage to his victims and those associated with them. The applicant can, I think, be properly so described.
Each separate offence had to be considered in that context and each attracted an additional degree of seriousness in consequence.
I do not consider that the sentences imposed for counts 9 and 10, although substantial, could properly be regarded as manifestly excessive, taking into account all the considerations which would operate in mitigation of penalty. I also observe that his Honour, in acknowledgement that they were committed within a relatively short period of time in the course of a single episode, made no order for cumulation of the sentences imposed on these two counts.
The argument has also been advanced on behalf of the applicant that each of the sentences imposed on counts 14, 19 and 21 were manifestly excessive.
Again, it has not been contended that his Honour failed to have regard to any relevant sentencing principle in relation to the determination of appropriate sentences for these respective counts or that he fell into error in any specific respect.
Count 14, in relation to which a sentence of four years' imprisonment was imposed, arose from an occasion on which the applicant sucked the penis of a 10 year old child who he had befriended and took to a room in the applicant's mother's house for the purpose of sexual abuse. His conduct, with regard to this boy was calculated and carried out with a clear understanding of its significance and possessed no redeeming features. The penalty imposed by the sentencing judge appropriately reflected that situation and cannot, in my view, be regarded as manifestly excessive.
Count 19 arose from the commission of fellatio upon another 10 year old boy. Again the applicant gained access to the child by ostensibly befriending his parents and deliberately set about debauching him. A sentence of 4 years' imprisonment for this count could not be considered outside the range of those available to the sentencing judge in the circumstances.
Count 21 represented another example of an occasion on which the applicant secured access to a young boy through the development of a relationship with adult family members and then took advantage of the opportunity that he had deliberately created to commit a serious offence against him. The sentence of four years' imprisonment imposed on the applicant in respect of this count was, I consider, also within the range available to the sentencing judge.
B. The Effective Sentence:
The questions which then remain for consideration relate to whether the total effective sentence imposed upon the applicant could be regarded as manifestly excessive, as breaching the totality principle, or could properly be described as crushing in the circumstances.
As I have indicated, the applicant engaged in the commission of a large number of discrete offences in the course of his predatory and systematic abuse of young children over a period of approximately 20 years. There are 11 victims and in relation to all save one of the counts access was gained to them through the infiltration of family units or the ostensible befriending of adults associated with them. With respect to the remaining count, whilst the applicant appears to have acted opportunistically, using his position as a senior member of a swimming club to do so, it is unlikely to have been coincidental that he had been to the victim's home. This boy had almost certainly been targeted by the applicant for attention.
By reason of the number of separate victims, separate offences, and the time intervals involved between their commission, it was incumbent upon the judge to make orders for cumulation and to impose an effective sentence that appropriately reflected the overall seriousness of the applicant's conduct without breaching the principle of totality. He was conscious of this consideration, pointing out that in respect of a number of offences the applicant was by virtue of the applicable statutory provisions to be regarded as a serious sexual offender. He did not consider that it was necessary to cumulate other than in accordance with the normal principle
of totality.
I must confess to having some difficulty with the orders for cumulation in this case which resulted in the effective cumulation of a period of eight years for the offences committed against the last victim upon an effective period of seven years' imprisonment for the offences committed against the other ten The offences against the last boy were no more serious than those perpetrated against some of the other victims and the period of offending was shorter than in some of the other cases. There is, in my opinion, an unjustifiable imbalance in the sentence at this level.
Whilst I recognise that a particularly serious view of the more recent offences which were perpetrated when the applicant was in his late 30s and against a background of years of such activity was well justified, I am of the view that total cumulation of the sentences imposed upon counts 19 and 21 and in turn upon the effective sentence for the other counts created a sentence which could be properly characterised as manifestly excessive.
Accordingly, I propose that the application for leave to appeal against sentence be granted and that the orders with respect to the cumulation of sentences imposed on counts 19 and 21 be set aside and that in lieu thereof it be ordered that one year of the sentence imposed on count 21 be served cumulatively upon count 19.
This would create an effective sentence of 12 years in respect of which I propose that a non-parole period of 10 years be would be fixed.
I would otherwise confirm the sentences and orders made in the court below.
WINNEKE, P.:
I agree.
O'BRYAN, A.J.A.:
I agree.
WINNEKE, P.:
The formal orders of the court will be as follows:
The application for leave to appeal against sentence is allowed. The appeal is treated as having been instituted and heard instanter, it too will be allowed.
The individual sentences imposed by the sentencing judge upon the applicant are confirmed in each instance.
The orders for cumulation are set aside, as will be the total effective sentence and non-parole periods ordered.
In lieu thereof we order that the sentence of one year imposed upon count 4, the four year sentence imposed upon count 19, and one year of the sentence imposed upon count 21, be served cumulatively upon each other and upon the sentence of 6 years imposed upon count 9.
The total effective sentence will therefore be one of 12 years.
We order that the applicant serve a period of 10 years before he becomes eligible for parole.
We declare a period of 779 days be reckoned as time served pursuant to the sentences imposed, and we direct that that declaration and its details be noted in the records of the court.
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