R v I N S
[2009] VSCA 61
•3 April 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 868 of 2006
No 833 of 2008
| THE QUEEN |
| v |
| INS |
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JUDGES: | MAXWELL ACJ, VINCENT and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 January 2009 | |
DATE OF JUDGMENT: | 3 April 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 61 | |
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CRIMINAL LAW – Conviction – Sexual offences against family members – Whether there should have been severance of the presentment – Whether the jury should have been discharged after a witness became emotionally distressed whilst giving evidence – Whether comments made by the trial judge were appropriate – Appeal dismissed.
CRIMINAL LAW – Sentence – Whether manifestly excessive – Whether relevant considerations were given appropriate weight – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert SC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr I D McIvor | Cohen Kirby & Iser |
MAXWELL ACJ
VINCENT JA
NEAVE JA:
On 23 October 2006, the applicant was found guilty by a jury in the County Court at Bendigo on 28 counts alleging the commission of sexual offences against younger members of his family:
Presentment T01674206.2
Buggery - 1 count (count 1)
Attempted rape - 2 counts (counts 2 & 13)
Indecent assault - 10 counts (counts 3, 4, 5, 6, 7, 8,
10, 11, 20 & 25)
Rape- 15 counts (counts 9, 12, 14, 15,
16, 17, 18, 19, 21, 22, 23, 24, 26, 27 & 28)
The applicant then entered a plea of guilty to two further counts of a generally similar character contained in another presentment:
Presentment T01674206.1
Indecent act with a child
under 16 - 1 count (count 1)
Incest - 1 count (count 2)
He admitted 20 prior convictions from one court appearance in October 2000, including seven counts of burglary, eight counts of theft, four counts of handling stolen goods and one count of intentionally damaging property.
After hearing a plea in mitigation of penalty, the judge on 10 November 2006 sentenced him to:
Presentment No: T01674206.2
Count 1 - 3 years’ imprisonment
Count 2 - 2 years’ imprisonment
Count 3 - 6 months’ imprisonment
Count 4 - 6 months’ imprisonment
Count 5 - 6 months’ imprisonment
Count 6 - 2 years’ imprisonment
Count 7 - 2 years’ imprisonment
Count 8 - 2 years’ imprisonment
Count 9- 3 years’ imprisonment
(cumulative)
Count 10 - 2 years’ imprisonment
Count 11 - 2 years’ imprisonment
Count 12- 3 years’ imprisonment,
(2 years cumulative)
Count 13- 2 years’ imprisonment
Count 14- 3 years’ imprisonment
Count 15- 5 years’ imprisonment
Count 16- 5 years’ imprisonment
Count 17- 5 years’ imprisonment
Count 18- 5 years’ imprisonment
Count 19- 6 years’ imprisonment,
(3 years cumulative)
Count 20- 1 years’ imprisonment
Count 21- 6 years’ imprisonment,
(4 years cumulative)
Count 22- 6 years’ imprisonment
Count 23- 5 years’ imprisonment
Count 24- 8 years’ imprisonment
Count 25- 1 year imprisonment
Count 26- 6 years’ imprisonment
Count 27- 6 years’ imprisonment
Count 28- 8 years’ imprisonment
(base sentence)
Presentment No: T01674206.1
Count 1- 1 year imprisonment
Count 2- 6 years’ imprisonment
His Honour directed that the sentence of 3 years’ imprisonment imposed on count 9 (indecent assault), 2 years of the sentence imposed on count 12 (rape), 3 years of that imposed on count 19 (rape) and 4 years of the sentence imposed on count 21 (rape) on Presentment T01674206.2 and 4 years of the sentence imposed on count 2 (incest), Presentment T01674206.1 be served cumulatively on the base sentence of 8 years imposed on count 28.
This created a total effective sentence of imprisonment for a term of 24 years in respect of which a non-parole period of 17 years was fixed.
The applicant now seeks leave to appeal against both his conviction and the sentences imposed.
The application for leave to appeal against conviction
In the applicant’s Full Statement of Grounds it is asserted that –
1.The learned trial Judge erred in not ordering further severance of the presentment to allow separate trials in respect of each complainant.
2.The learned trial judge erred in not discharging the jury after the first known witness (A) broke down twice in the presence of the jury.
3.The learned trial judge erred in not reconsidering the application for severance after A had so broken down.
4.The learned trial judge erred in making comments that indicated his belief in the guilt of the accused.
5. In all the circumstances the verdicts were unsafe and unsatisfactory.
6. A miscarriage of justice arose by virtue of an aggregate of errors.
The application for leave to appeal against sentence
In support of this application, it is contended that:
1.The learned trial judge gave insufficient weight to the delay between the commission of most of the offences and the imposition of sentence.
2.The learned trial judge failed to give sufficient regard to the principle of totality.
3.The learned trial judge gave too much weight to the principle of accumulation.
4.The learned trial judge failed to give sufficient weight to the youth of the Applicant at the time of the offences.
5.The learned trial judge incorrectly applied the principle that society needs to protect children from sexual abuse by adults.
6. The total sentence is manifestly excessive.
The background
The applicant was aged between 14 and 46 years at the time of the offences and aged 48 years at the time of sentencing. He was the eldest of eight children. His five sisters were the victims in the offending of which he was convicted by the jury.
The prosecution contentions
At the trial, the prosecution contended that the offences encompassed by counts 1, 2, 9 and 15 (T01674206.2) were perpetrated against the applicant’s sister, A, when she was 12, 13 and 14 years old respectively. Count 1 related to an occasion when, as A was preparing for a bath, the applicant pushed her over the side of the bath and had forced anal sex with her.[1] The second related to a time when A was alone at home with the applicant and he forced himself upon her, attempting to open her legs. The offence encompassed by count 9 was committed, in 1974, when the applicant invited A into his caravan and showed her pornographic magazines. As she attempted to leave, he threw her on the bed, forced her legs apart and raped her.[2] Count 15 related to an occasion on which A had intervened to protect one of her sisters (J) against abuse by the applicant. The applicant pushed her into a haystack and tied her legs apart. He then tied a scarf tightly around her neck, pushed her underwear to one side and put his penis into her vagina.
[1]Sentence 394.
[2]Sentence 396.
The offences covered by counts 12 and 13 were perpetrated by the applicant against J. He was 17 at the time and J was 13 or 14. The applicant discovered J and A playing with two boys. The children were removing their clothing and ‘mucking around sexually.’[3] The applicant threatened to tell their father unless J had sex with him. This intimidated her as their father was a strong and violent man of whom all the children were afraid. The applicant led her around behind a haystack and raped her.[4] J was a virgin at the time.[5] Count 13 related to an incident when the applicant attacked J on a river bank, pushing her into the water, hitting and punching her. A interrupted this incident and assisted J in fighting him off.
[3]Sentence 397.
[4]Unless otherwise indicated, the term rape in this judgment refers to the penile penetration by the applicant of the vagina of the complainant.
[5]Sentence 397.
The offences in counts 3, 4, 5, 18 and 19 were perpetrated by the applicant against another sister, M, who was five years younger than he was. She was 11 at the time of counts 3–5, and 17 at the time of counts 18 and 19. Count 3 related to an incident when M and the applicant were alone in a cow shed, and he rubbed her over her clothing before inserting his finger into her vagina. The offence in count 4 occurred when he then asked her to hold his penis and that in count 5 when the applicant and M were seated on a tractor. On that occasion, he touched her on the vaginal area through her clothes.[6] Count 19 arose from an assault that took place on an occasion when the applicant drove M to Bendigo. On the way home, he stopped the car and wanted her to perform oral sex or have intercourse with him. When she refused, he threatened her and raped her in the back seat of the car.[7]
[6]Sentence 395.
[7]Sentence 399.
Counts 10, 11, 14, 16, 17, 22, 23, 24, 25, 26, 27 and 28 were committed against another sister, P. She was 10 years old and he was 16 at the time of the first offence in 1974. The final one was committed in 1985 when she was 21 and he was 27 or 28. Count 10 related to a time when P followed the applicant to a haystack cubby, he pulled up her dress and put his hand between her legs, and then moved his fingers inside her vagina.[8] She started to cry and the applicant offered to ‘kiss it better’. He then licked her vagina. He told her to urinate into his mouth, which she did, and threatened to kill her if she told anyone about this behaviour.[9] Count 11 related to another occasion when the applicant licked P’s vagina. When P was 11 years of age, the applicant raped her in his caravan (count 14), after which she attempted to drown herself.
[8]Sentence 397.
[9]Sentence 397.
When the applicant was 19 or 20, he suggested to P that she acquire a shorter skirt. He then asked for oral sex. She attempted to leave the room. The applicant stopped her and pushed her onto the bed, removed her underclothes and raped her (count 16).[10] Count 17 concerned another rape at a different property. Shortly after the applicant’s wife left him, he stated that P needed to be taught a lesson because his wife had gone. He pushed her face down onto the bed, removed her clothing and raped her, while forcing her to get up onto her hands and knees. (count 22).[11]
[10]Sentence 399.
[11]Sentence 400.
Count 23 occurred when the applicant met P as she returned from meeting her boyfriend. She was 15 and the applicant was 23. He threatened to tell their parents about the boyfriend unless she gave him oral sex. When she refused, he forced his penis into her mouth. Count 24 related to another occasion of penile rape. Count 25 was based upon an indecent assault that was committed when the applicant touched her breasts whilst she was trying to feed some calves. P broke away and threatened him with a pocket knife.
Count 26 occurred when the applicant forced his way into the toilet and raped P who was in there at the time.[12] Count 27 occurred when P was alone at home with the applicant, sleeping in her parents’ bed. The applicant jumped into bed. She told him to get out. He threw her onto the bed, removed her underwear and held her by the throat while raping her. He punched her, causing a black eye. Count 28 relates to P when she was living in a flat in Bendigo. She was 21 years of age, and seven months pregnant. The applicant stated that his second wife would not have sex with him, and asked P to. She refused, and he pushed her onto the couch, pulled her pants down and raped her.[13]
[12]Sentence 401.
[13]Sentence 402.
Counts 6, 7, 8, 20 and 21 related to offences committed against the fifth sister, F, when she was 5, 12 and 13 years old respectively. The applicant was 16 when he first offended against F, and 22 or 23 on the later occasions. Count 6 was committed when the applicant asked F into his caravan to play a game of ‘cows and bulls.’ He removed her dress and underwear and began to lick her vagina.[14] He then rubbed his penis up and down her vagina and buttocks. The offence in count 7 occurred shortly after this occasion, when F was still 5 years old. The applicant led her into some long grass, removed her underwear and licked her vagina. On another occasion, when the applicant and F were playing hide and seek in a barn, he lifted her onto a hay bale, removed her underwear and began to lick her vagina (count 8). He then placed his penis on her vagina and moved it back and forth.[15] Counts 20 and 21 related to an incident when the applicant was 22 or 23 years of age, F entered his bedroom in order to learn from the applicant how to play the guitar. He pushed her onto the bed, held her down, put his fingers into her vagina and then inserted his penis into her vagina and raped her.[16]
[14]Sentence 396.
[15]Sentence 396.
[16]Sentence 400.
After being found guilty of all 28 counts on Presentment T01674206.2, the applicant pleaded guilty to the two counts contained in Presentment T01674206.1. The offence in count 1 on that presentment occurred when, in about 2002, the applicant’s own daughter, C, was in her room. She was aged 14. The applicant kissed her and put his tongue in her mouth. Count 2 related to another occasion when he followed C into the bathroom. Whilst she was showering, he inserted two fingers into her vagina. C was then aged 16.
The application for leave to appeal against conviction
Ground 1 – failure to order severance
The contention was advanced under this ground that the trial judge should have severed the presentment to allow separate trials in respect of each complainant. This was required, counsel for the applicant submitted, as there was a real chance that the cumulative impact of the evidence given by the five sisters was likely to be such that the jury may not have given full effect to the directions given by his Honour in relation to separate trials, propensity and uncharged acts.
This submission must be considered in light of the fact that much of the evidence given by each complainant was relevant to the jury’s consideration not only of the Crown case with respect to that complainant but also of the cases concerning other complainants, and was clearly cross-admissible.
As his Honour stated:
Essentially, the evidence in this case comes from each of the five sisters, each of the five complainants who gave evidence in relation to each of the 28 counts or those that concern them, and in some cases they gave their evidence in relation to matters that relate to their sisters where they were either witnesses or were told something about it.[17]
[17]Charge 285.
No complaint was made concerning the accuracy or adequacy of the instructions actually provided by the judge with respect to the use of evidence of uncharged acts or which could be perceived as indicating propensity. His Honour directed the jury appropriately with respect to the separate treatment of counts and the cases concerning the separate complainants. Proper instruction was given in relation to the possible sources of prejudice in the circumstances. The judge’s charge makes apparent that his Honour was well aware of the dangers of a miscarriage of justice that might arise if the jury was not provided with clearly expressed and correct directions on all of these matters.
Nor was it contended that, apart from the risk of prejudice that was said to arise from the combined impact of the evidence of the five sisters, a joint trial of the counts was contrary to principle. As we have indicated, much of the evidence was mutually admissible and relevant to the case against the applicant in relation to more than one of the complainants. But, counsel argued, to consider the question from that limited perspective would be inadequate, as no importance would be attributed to the potential impact upon the jury as they heard sister after sister giving evidence.
Winneke P considered a similar submission in Papamitrou:
This application brings into focus, once again, the problems confronted by trial judges in this State when presentments are filed containing multiple counts alleging sexual offences against different victims. There is no doubt that such presentments are properly formed, in the sense that they comply with the Presentment Rules found in the 6th Schedule to the Crimes Act 1958.
The issue, which invariably arises, is whether the interests of fairness dictate that the counts should be severed; and, if not, what directions should be given by the judge to secure a fair trial for the accused. What is fair and proper must depend entirely upon the circumstances of the particular case, and particularly the issues which arise in that case.[18]
[18]R v Papamitrou, (2004) 7 VR 375, 376-7.
…
… where multiple sexual offences against more than one complainant have been properly joined in the one presentment in accordance with the Presentment Rules contained in the 6th Schedule to the Crimes Act, the discretion to sever, at least in this State, is not necessarily dictated by ‘mutual admissibility’ or the lack thereof. The amendments to s 372 of the Crimes Act made by the Crimes (Amendment) Act 1997 (to which I have referred in [2] and [3] above) were introduced to ensure that trial judges carefully considered whether severance was necessary even where the judge concluded that the evidence of complainants was not ‘cross-admissible’.
…
As this court pointed out in R v KRA, these amendments make it appropriate that severance of the presentment:
‘… should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of Christou.’
In particular, the court pointed out that the trial judge should consider whether potential prejudice could be overcome by appropriate directions, bearing in mind that juries can be trusted to heed the directions of the trial judge.
Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will — in most cases — be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton (to which I have referred in [3]) will remain influential in this State.[19]
[19]Ibid 387-8 (citations omitted).
The submission advanced in this Court was also made before the trial judge. He summarised the position in his considered Ruling as follows:
[Counsel] conceded that although the remaining counts 1-28 form a series of like offences and there was some cross-admissibility of evidence between the various sister witnesses, he argued that nonetheless there should be severance because of the sheer number of and nature of the allegations.
[Counsel] submitted that any direction I might give to the jury as to impermissible propensity reasoning could not overcome the inherent prejudice generated by the number of counts and the nature of the offences alleged. As he put it, a jury would say ‘30 counts, they’re his sisters, I think this bloke’s got to be guilty of something’.[20]
[20]Ruling 29.
…
It is clear that unless the evidence of the various complainants is supportive of the evidence of each of the other complainants and thus making it more likely that each complainant is telling the truth, it is otherwise mere propensity evidence and should not be admitted into evidence in relation to any particular complainant’s allegation, save her own.
The probative value of the evidence of each complainant may lie not so much in a displaying a striking similarity system or pattern, but by virtue of there being underlying unity between the evidence of the various complainants. See R v Rajakaruna 2004 VSCA 114.
If the evidence of each complainant is supportive and not simply mere propensity it will be admissible subject to s 398(A) of the Crimes Act. Which reads – starting from sub-s 2:
‘Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence. The test therefore is whether it is just to admit it simply on the basis of prejudicial – on the basis of propensity.’
The issue for me to determine is whether the evidence of each complainant as to what the accused man did to her so relates to the evidence of other complainants as to what he did to them that the evidence of the first complainant will lend such credibility or support to the evidence of the other in the sense of making it more likely to be accepted, that it makes it just to admit it, notwithstanding its prejudicial effect.
In my view the evidence of each of the complainant witnesses, [M], [F], [A], [P] and [J] is strongly supportive of the evidence of each of the other sisters.
The elements common to the evidence of each of them include one, the relationship of each to the accused. They were each his sisters. Two, the opportunity enjoyed by the accused to access his sisters as each resided with him. Thirdly, the age of each complainant. Each was attacked by the accused when she was young, between the ages of six and 14 years of age. Fourthly, each was similarly threatened by the accused dissuading exposure of his conduct. And fifthly, on several occasions one complainant witnessed attacks or incidents involving another complainant.
In my view, the evidence of each complainant demonstrates a guilty passion by the accused for his younger sisters, a pattern of conduct in the manner in which he exploited each of them. A jury would be entitled to use the evidence of any particular sister as strongly supportive of the other sisters, so as to render it improbable that two or more persons would give an account of particular conduct if that conduct did not in fact occur.[21]
…
I am of the firm view that a proper direction as to the use that the jury can make of each complainant’s evidence can be given, and that such a direction will deal with any prejudice or alleged prejudicial aspects of the propensity evidence.
In reaching this conclusion I have been mindful of the guidelines and the guidance given by Mr Justice Callaway in the decision of R v TJB Vol 4 (1998) V R 621, where at p 630 his Honour set out five general principles that would guide the exercise of discretion in cases such as this. I do not propose to repeat them for this ruling but indicate that I have read them all and taken each into account.[22]
[21]Ruling 30-32.
[22]Ruling 32-33.
It is apparent from these extracts that his Honour was mindful of his primary obligation to ensure that the trial was fair and that he directed his attention to the principles set out in the authorities to be applied in determining whether severance should be ordered. Again there has been no suggestion that he fell into any error of omission or commission concerning the matters to be taken into account.
His Honour’s conclusion that severance was not required was clearly open in the circumstances and cannot be seen to give rise to any reasonable concern that a miscarriage of justice may have occurred.
Ground 2 - failure to discharge jury
It was asserted by the applicant under this ground that, because the first Crown witness, A, broke down three times whilst giving her evidence, it was reasonable to assume that sympathy for her would have extended to the other complainants and would therefore have affected (unfairly) the jury’s assessment of the credibility and reliability of all of the complainants. In that situation, the argument proceeded, the fairness of the applicant’s trial could be seen to have been compromised and the jury should have been discharged.
We suspect that, even for the most experienced of individuals, the giving of evidence in a criminal trial is stressful and, on occasions, appropriately described as traumatic. In recognition of this ordinary human reality, special measures are sometimes adopted. The juries in our criminal trials are selected from the general community. They have ordinary human understanding and experience and can be assumed to be aware of the stress of giving evidence in public concerning deeply personal and embarrassing matters in what is, for jurors as well, a quite foreign environment. Jurors can also be taken to appreciate that indications of apparent distress do not always imply truthfulness. In any event, jurors are invariably instructed, as they were by the judge in the present case, not to permit themselves to be influenced by feelings of prejudice or sympathy one way or the other. There is no reason to suspect that they may not have understood or may have failed to comply with those instructions.
The judge, in determining that there was no high degree of need in the present case for the discharge of the jury, clearly directed his mind to all relevant principles and factual circumstances. No complaint has been made that he failed to take any relevant consideration into account or failed to address any significant matter. The instructions given to the jury with respect to any possible sympathy they may have felt for any of the witnesses were, as we have indicated, appropriate. No exception was taken by counsel appearing for the applicant. Again, his Honour’s rejection of the submission was reasonable in the circumstances.
This ground also must fail.
Ground 3 - Failure to reconsider severance
Under this ground, it was submitted that once the witness had broken down, severance of the counts relating to the other complainants became essential if the applicant was to receive a fair trial. For the reasons outlined above, severance was unnecessary in this situation. What had occurred during the evidence of A did not introduce an unacceptable risk of prejudice.
Ground 4
Under this ground it is claimed that the following comments by the trial judge indicated to the jury his belief in the guilt of the applicant and may have influenced them in their deliberations:
a.‘This is becoming a little bit intolerable’ (in the absence of the jury).
b.‘The lady is clearly distressed and it will be easier for her to be able to give her evidence if she is in a more secluded environment.’
c.‘At that house generally there were occasions where he would have sex with you a bit much like the pattern you were saying before?’
There is no substance in this submission. First, none of the comments, when considered in context, could be reasonably interpreted in this way. Secondly, and in any event, his Honour provided the jury with the conventional and appropriate instruction concerning any comments he might make.
With regard to the specific remarks, the first was made in the absence of the jury and could not have affected their thinking. The remark was made during a break in the proceeding, when the witness had broken down. His Honour informed counsel that he proposed to provide the jury with an appropriately edited and presented transcript of the evidence. He pointed out that he was experiencing some difficulty in its preparation ‘because the people haven’t been able to make out what she said’ and that he would provide copies to counsel in advance for their comments. He continued –
HIS HONOUR: This is becoming a little bit intolerable, but I think ---
COUNSEL:It is, your Honour, and I accept that. I’m trying to be as gentle as I can.
HIS HONOUR: It’s just when you go near some of these topics she gets upset, and she’s clearly a fairly stressed woman by nature.
COUNSEL:Well, we are most of the way through it.
HIS HONOUR: Yes. I would’ve thought you haven’t got much further to go. I’ll just go out the back for a couple of minutes, and then we’ll get her back again when you tell me she’s ready, Mr Tipstaff.
Not only did this exchange take place in the absence of the jury, but it can be seen to have conveyed nothing about the judge’s view of the veracity of the witness.
The second comment again does not carry any suggestion that his Honour believed the witness or, more importantly, that he considered that the jury should. The third comment was made in the broader context of a question to the witness:
HIS HONOUR: What you’re saying I think is – have I got this right, [P], that at that house generally there were occasions where he would have sex with you a bit much like the pattern you were saying before?---Yes.
Again, it can be seen to carry no implication that the judge believed in the truth of the account being given.
Grounds 5 and 6
It is sufficient to state with respect to these grounds that there was ample evidence to support the convictions and no substance in any of the complaints of error.
In the circumstances, the application for leave to appeal against conviction must be dismissed.
The application for leave to appeal against sentence
Counsel for the applicant submitted that all of the sentences imposed on Presentment T01674206.2, and particularly those on counts 1 to 15, were manifestly excessive. It was argued that counts 1 to 15 related to offences that were committed between May 1972 and some time in 1975, when the applicant was 15 to 18 years old. The substantial period that had elapsed between the commission of these offences and the imposition of sentence, as well as the applicant’s youth at the time, were important sentencing considerations to which his Honour had not given appropriate weight, it was contended. We do not agree. His Honour addressed each of these considerations directly in his sentencing remarks:
I take into account the delay in complaint in relation to the matters involving your sisters, where the offences are between 20 and 32 years old. However, that delay is in part explained by the threats and violence perpetrated by you upon your victims.
Significantly I take into account your age at the time of each of your offences. As stated, you were 14 at the time of Count 1, 15 at the time of Count 2 and 16 and 17 at the time of Counts 3 to 15. I take into account that had the offences been detected at the time, or close to the time you committed them, you would have been dealt with by way of youth detention for most of those counts. I have significantly reduced the sentences I would otherwise impose for those offences to reflect your youth at the time of your offending.
The individual sentences handed down on those counts could not be regarded as severe and can be seen to reflect his Honour’s clearly expressed intention, as can the limited order for cumulation made in relation to those sentences.
It is apparent from his Honour’s remarks that the judge in this case approached his task with great care. He appropriately described the applicant’s offending as extremely serious and stated:
You systematically preyed upon your sisters and subjected them to humiliating and brutal offences. Your conduct escalated as you grew older, and although there is a gap of 20 years between the last of your crimes against your sister and the first of your crimes involving your daughter, the fact that you returned to sexual offending with your daughter at the age of 44 and 46 demonstrates that you have not been able to rehabilitate yourself over the past years.
The purposes of the court's sentence is to punish you in a manner that is just in all the circumstances of the case and to deter others from committing similar offences. The court's sentence must manifest the denunciation of the type of conduct in which you have engaged. Your crimes are sickening and revolting. Your victims were your sisters and your daughter, all of whom you should have protected, not exploited. You have demonstrated a complete lack of remorse so far as the offences involving your sisters are concerned.
Crimes such as yours call out for condign punishment. You blatantly abused your position in your family to debauch your sisters and your daughter. The courts have long indicated that sentences for crimes like yours should reflect the need to protect young persons and to properly punish crimes of the type you committed, which strike at the familial roots of a civilised society, see R v Ware (1997) 1 V R 647 at p 652, and R v VZ (1998) 7 V R 693 at p 99.
In Ware Hedigan J referred to a decision of Crockett J and said this:
‘The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes had been committed and be seen to be anything but infrequent occurrences. The courts, and particularly this court, I consider bound to respond to the legitimate community concerns with the response placing emphasis on the need, in particular, to have sentences that give effect to specific and general deterrence.’
Later his Honour quoted Marks J in R v Sposito and said:
‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care is degenerate. The offence of incest is particularly erosive of human relations and casts doubts upon the assumption that parents are the natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.’
The victims of these offences were children and adolescents at the time of the offending. F was only five years old when the applicant first assaulted her, P was 10 and M was 11. Unsurprisingly, all of the victims have suffered greatly as a result of the applicant’s abuse. There was no suggestion that the applicant suffered from any physical or psychological disability, and his personal circumstances and general background were unremarkable. Perusal of his Honour’s sentencing remarks makes clear that the judge took into account all relevant sentencing principles and factual considerations in the determination of the sentences handed down. We do not consider that he fell into error with respect to any of them. Nor do the individual sentences or orders for cumulation bespeak error. In this context, his Honour stated:
The sheer number of crimes for which I am to sentence you creates problems in relation to principles of totality and accumulation. In my view it would be appropriate to totally accumulate sentences in respect of each of your victims, however to do so would lead to a head sentence that is simply too crushing upon you.
Similarly, some of the individual offences of rape would normally attract sentences in excess of ten years' imprisonment however, again, the great number of offences has led me to moderate the individual head sentences involved in your offending. This is in addition to the substantial reduction of sentence I have already referred to because of your youth in relation to Counts 1 to 15. I have had regard to the decision of the Court of Appeal in R v Nobile (2006) VSCA 211, in relation to applications of principles of totality and accumulation. In particular the words of Coldrey JA at p 10 of that judgment and 13:
‘The principles of totality require that the sentencing court evaluate the overall criminality involved in all the offences and adjust the sentence downwards where appropriate to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the length of the sentence imposed.’[23]
[23]For the origin of this quotation, see R v Sullivan [2005] VSCA 286 [20], cited in R v Hunter [2006] VSCA 129 [31] and in R v Nobile [2006] VSCA 211 [80].
One argument advanced by counsel, to which reference should be made in conclusion, was to the effect that the reference by his Honour to the remarks of Hedigan J in Ware[24] could be relevant only to the offences contained in the second presentment, which related to the offences conducted by the applicant against his daughter. Whilst those remarks were made in the context of offences committed by adults, particularly those entrusted with the care of their victims, the statement of general principle – that the young and vulnerable must be protected against those who would abuse the power which, as a practical reality, they possess – is entirely apposite in this situation.
[24]R v Ware [1997] 1 VR 647.
We would also dismiss the application for leave to appeal against sentence.
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