R v KHB
[2004] VSCA 219
•7 December 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 287 of 2003
THE QUEEN
v.
KHB
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| JUDGES: | BATT and EAMES, JJ.A. and GILLARD, A.J.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 October 2004 |
| DATE OF JUDGMENT: | 7 December 2004 |
| MEDIUM NEUTRAL CITATION: | [2004] VSCA 219 |
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Criminal law – Sentencing – Sexual offences – Incest, six counts (maximum sentence applicable 20 years) – Indecent assault, seven counts (maximum sentence applicable 5 years) – Four separate occasions of offending – Penile penetration of vagina on each occasion, in addition to other serious acts - Last occasion of offending not later than 1985 – Victim a natural daughter, aged 10 to 13 years – Appellant aged in late twenties to early thirties at time of offences – Chronic alcoholic – Total effective sentence of 8 years 6 months with non-parole period of 6 years 6 months held (by majority) not manifestly excessive – Victim impact statement – Whether use by judge of victim impact statement inappropriate – Judge wrongly excluding indecent assault offences when declaring appellant serious sexual offender – Crimes Act 1958, ss.44(1), 52(1) – Sentencing Act 1991, ss.6B, 6D, 6E, 95A, 95B, 95C, 95D.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.G. Hillman, SC | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Dr. I.R.L. Freckelton | Coadys |
| BATT, J.A.: |
The facts in this case are set out in the reasons for judgment of Eames, J.A., which I have had the benefit of reading.
As Mr. Hillman submitted and as Eames, J.A. holds, the sentencing judge erred in treating the appellant as a serious sexual offender in respect only of counts 6, 7, 10 and 13 or perhaps, more accurately, in including only the offences the subject of those counts as “relevant offences” for the purposes of s.6E of the Sentencing Act. I would not, however, on an offender’s appeal hold that the sentencing discretion was re-opened by this error alone when its correction, considered by itself, would be unlikely to benefit the offender, and I do not think Mr. Hillman really asked us to do this. If, however, the appellant establishes that for some other reason the sentencing discretion is re-opened, obviously this error must be disregarded in the sentencing of the appellant.[1]
[1] If he does fail to make out any ground of appeal, I would not in this case allow the appeal simply for the purpose of recording that the appellant was sentenced on all of counts 3 to 13 as a serious offender, because the sentencing judge did not do that. In the latter regard the case differs from R. v. Dunne [2003] VSCA 150 at [3] and [44].
I take first the ground added by leave during the hearing of the appeal, namely, that the sentencing judge erred in his consideration and application of s.6D of the Sentencing Act 1991. I agree that the two sentences of his Honour’s remarks impugned by this ground, which are set out in paragraph [28] of the reasons of Eames, J.A., being expressed as they are, are to be understood in the sense stated by his Honour in paragraph [29]. That view is, I consider, confirmed by statements earlier on the page of the transcript of the sentencing remarks on which the impugned sentences are recorded. In those statements his Honour had stated that the Crown was not seeking on the issue of public protection a sentence longer than that that would normally be imposed on the appellant and, later, that he had not imposed a sentence of imprisonment longer than that which was proportionate to the gravity of the offence considered in the light of its objective circumstances.
I come now to what was until the hearing of the appeal the sole ground of appeal, namely, the contention that the sentence is manifestly excessive. Dr. Freckelton, for the appellant, did not contend that any individual sentence itself was manifestly excessive. In that he was, in my opinion, correct notwithstanding that the appellant pleaded guilty and had no relevant prior convictions. The contention was, rather, that the head sentence (achieved by the directions expressed as directions for cumulation) and the non-parole period were manifestly excessive.
By way of preliminaries I should say that, for myself, I do not derive assistance from the fact that the sentencing judge used strong, at times emotive, language or from his reading the victim impact statement to the appellant as he was sentencing him, though the former at least could be an explanation for the sentence’s being manifestly excessive if that conclusion were otherwise reached. Further, in my respectful opinion, the sentencing judge did, except perhaps in one respect, both take into account and adopt the report of the forensic psychologist, Mr. Crewdson. For he said that he had read and re-read it carefully and had found it a most helpful and detailed report, and summarised much of it. Later he said that he had taken Mr. Crewdson’s opinion into account when sentencing the appellant. It is possible that that statement relates to his Honour’s immediately preceding summary of Mr. Crewdson’s psychological assessment, as opposed to the whole of the report, though I rather think not. The possible qualification that I refer to is that his Honour did not refer to Mr. Crewdson’s statement that the appellant’s encounter in interview did offer “a hope that there might be some prospect for rehabilitation”.[2] It seems to me that Mr. Crewdson’s statement was a very hesitant opinion and that his Honour was justified in not referring to it specifically. It constituted a weak reed by way of mitigation. Far more significant was the fact that the appellant had not re-offended in the 18 years or so to sentence since the last offence charged. His Honour, in my opinion, accepted the significance of the absence of re-offending. That is why, I consider, he stated that the issue of public protection was not the principal purpose for which the sentence was imposed. By “re-offending” I mean committing incest again. His Honour was of course aware that the appellant had not offended in other ways since 1985. While on preliminaries I mention that I find no need to comment on the attitude of the appellant’s wife to him and to the victim after the revelation of the offending, though I note that she had taken him for better, for worse.
[2] My emphasis. Mr. Crewdson’s statement that follows setting out three requirements and the need to maintain the process after release from imprisonment is set out in the reasons of Eames, J.A.
Two further passages in the sentencing remarks call for consideration. During the plea on 2 October 2003, when counsel for the appellant said that the contested committal proceeding hardly showed any remorse but half-way through August 2003 the appellant had finally admitted to himself what had transpired, his Honour said, “Yes. My observation of him in the dock is that he is most remorseful ... for what has happened.” Yet in his sentencing remarks his Honour said that he accepted that, to some degree, the appellant was remorseful for his offending behaviour, but that he rather suspected that a large degree of such remorse was, in essence, what I might call self-pity. That was said on the following day, 3 October. His Honour could not in the space of 24 hours have forgotten the impression he received during the plea, but remarks are often made during argument which are departed from in judgment and his Honour’s statement in his sentencing remarks represents his ultimate position on remorse. It seems to me that the two statements can be reconciled on the footing that the first records an immediate visual impression and the second a characterisation or assessment of it after reflection.[3] The second passage occurred immediately before his Honour pronounced the individual sentences. He said, correctly, that in sentencing for serious offences of this nature general deterrence must be an important sentencing consideration. However, he continued, “balanced, of course, against the need for specific deterrence, your prospects for rehabilitation, public protection and just punishment”. The word “balanced” strikes me as curious, for, whilst prospects for rehabilitation, and even the need for specific deterrence, if that is understood as encompassing the absence of a need for specific deterrence, might well be considered counterweights to general deterrence, nevertheless public protection and just punishment go into the balance on the same side as general deterrence, and that is also true of specific deterrence unless it is understood as abovementioned. However, sentencing remarks are not to be pored over and construed like a statute or a strict settlement, and I think that, to change the metaphor, his Honour was simply listing sentencing purposes that went into the “mix”. Having regard to what, as discussed earlier, his Honour later said about protection of the public, it can be seen that not all the purposes he listed required, in his view, to be effectuated in this case. That appears largely to have been his Honour’s view about specific deterrence also.
[3] This re-assessment did not, I consider, infringe the requirements of procedural fairness.
The prima facie rule ordained by s.6E of the Sentencing Act was that sentences imposed on all counts from count 3 onwards were to be served cumulatively. Clearly the principle of totality required that prima face rule to be reversed to a considerable extent. Dr. Freckelton, as I understood him, accepted that there might be some cumulation, but contended that the amount directed by his Honour was manifestly excessive. For the purpose of explaining his directions for cumulation his Honour considered the overall criminality of the appellant’s conduct and stated that his offending placed the matter “towards, but short of, the upper end on the scale, as it were, for offending of this nature”. Although it is not clear, I do not think that by “offending of this nature” his Honour meant incest simply, for, as would have been obvious to him, one can readily postulate worse cases, with, for instance, relevant prior convictions, multiple victims, a longer period of offending or worse penetrative incidents or a combination of those features. Nor does his Honour’s sentence reflect that he was speaking about incest simply. Nevertheless, it is clear that his Honour regarded the offending as very serious, as indeed I would immediately say it was, though without seeking to locate it precisely on any scale of gravity.
In summary, the significant features of the case for the purpose of considering totality with respect to the cumulation directions and the non-parole period seem to me to be the following. The offences were committed by the biological father of a girl aged between 10 and 13 during the period of offending, which was notionally[4] two years. There were four incidents. The offences constituted a gross paternal breach of trust and a threat was made to secure the victim’s silence. The offences were old but by reason of the threat and their nature were unlikely to be discovered promptly. The appellant pleaded guilty and had no relevant prior convictions. He was not a paedophile. There was no subsequent offending and neither protection of the public nor specific deterrence was a significant sentencing purpose. However, general deterrence, denunciation and just punishment, and in particular general deterrence, assumed importance. The appellant would spend his sentence in protective custody.
[4] Individual offences were alleged, and conceded, to have occurred, each once only, at some point in periods extending up to a year, so that the actual period over which the four incidents occurred, depends on the precise, but unidentifiable, date when they respectively occurred.
I have found the question whether the total effective sentence achieved through the directions for cumulation is manifestly excessive to be extremely difficult and my mind has fluctuated according as I have focussed on different considerations. In itself that fluctuation of mind suggests that the sentence is not to me manifestly excessive. Be that as it may, the total effective sentence and non-parole period are certainly, I consider, heavy. His Honour cumulated three-eighths of three individual sentences. The cumulation meant that the total effective sentence was more than double any individual sentence. Had I been sentencing, I would probably have passed the sentence which Eames, J.A. proposes by way of re-sentence. It is trite of course that what an appellate court would itself have done is not the question, for it must be remembered that sentencing is a discretionary exercise and that, leaving aside mandatory sentences, there is no single correct sentence. But the sentence I would have passed is helpful to consider. For the difference between it and the sentence in fact passed, which is constituted by the cumulation of three periods of three extra months in the context of a total sentence of seven or eight years’ imprisonment, is relatively small and means that I am unable to say that his Honour’s total effective sentence is “unreasonable or plainly unjust”[5] or that excessiveness is “plainly apparent”[6]. Rather, it is within the range of terms of imprisonment open to his Honour, albeit at the upper end. If that be correct, it is difficult, I consider, to say that the non-parole period is manifestly excessive, though one could readily have understood if his Honour had fixed one somewhat lower.
[5] House v. The King (1936) 55 C.L.R. 499 at 505 (my emphasis).
[6] Dinsdale v. The Queen (2000) 202 C.L.R. 321 at 325 (my emphasis).
Accordingly, I would dismiss the appeal.
| EAMES, J.A.: |
The appellant was convicted on 13 counts upon his pleas of guilty in the County Court on 25 August 2003. He pleaded guilty to seven counts of indecent assault contrary to s.44(1) of the Crimes Act 1958 (hereafter “the Act”), as that section applied at the time of the offences and which then carried a maximum penalty of five years’ imprisonment[7]. He further pleaded guilty to six counts of incest, contrary to s.52(1) of the Act, which offence carried a maximum of 20 years’ imprisonment. He admitted four prior convictions from two court appearances, on matters of no relevance to the present appeal.
[7] The maximum sentence was increased to 10 years’ imprisonment by Act No 48 of 1997.
The appellant was granted leave to appeal by a judge of the Court on 11 June 2004. There was only one ground in the notice of appeal, namely, that the sentence imposed was manifestly excessive in all the circumstances, but in the course of the hearing the Court allowed counsel for the appellant to add an additional ground of appeal, as I shall later discuss.
The offences all occurred against the eldest daughter of the appellant when he was aged in his very late twenties or early thirties. The appellant was born on 8 February 1953 and is now aged 51 years. His daughter was born on 26 August 1972 and the offending occurred on four separate occasions over a period between 1 January 1983 and 31 December 1985, when his daughter was aged between 10 years and 13 years. On each occasion the appellant, a long standing chronic alcoholic, was affected by alcohol.
Counts 1 to 4 (1 January 1983 to 31 December 1983)
The first occasion on which offences were committed arose at the time when the appellant’s daughter would have been aged between about 10 and 11 years. Whilst his wife was away from the family home the appellant entered his daughter’s bedroom, removed the blankets on her bed, pulled down her underpants and lay on top of her. He then kissed her. That was count 1. The appellant then made his daughter suck his penis, which was count 2. He then kissed his daughter upon her breasts, which was count 3, and inserted his penis into her vagina, which was count 4. When he placed his penis into his daughter’s vagina it caused her pain and she was crying and saying “no”. The appellant removed his penis and then ejaculated onto his daughter’s stomach. He wiped his daughter’s stomach and then left the bedroom. On the following morning the daughter noticed that there was blood on her bed sheets and she took the sheets to the laundry and washed them herself, so that her mother would not see the sheets.
For the offences on that first occasion the following penalties were imposed. Count 1 (indecent assault), three months’ imprisonment; count 2 (incest), four years’ imprisonment; count 3 (indecent assault), twelve months’ imprisonment; count 4 (incest), four years’ imprisonment.
Counts 5 and 6 (1 January 1983 to 13 December 1985)
On this second occasion the appellant’s daughter was having a bath whilst her mother was at work. The appellant entered the bathroom and inserted his finger into his daughter’s vagina. That was count 5. He then made her get out of the bath and lie on a towel in the bathroom whereupon he inserted his penis into her vagina, which was count 6.
For this conduct he was sentenced on count 5 (indecent assault) to two years’ imprisonment. On count 6 (incest) he was sentenced to four years’ imprisonment, one year and six months of that sentence being ordered to be served cumulatively on the sentence imposed on count 2.
Counts 7 to 10 (1 January 1983 to 31 December 1985)
The events on this occasion occurred in the daughter’s bedroom. The appellant made her suck his penis (count 7), then licked her breast or breasts (count 8), then licked her vagina (count 9), and then inserted his penis into her vagina (count 10). He was disturbed by hearing his wife’s car returning to the house and he quickly left the bedroom.
The penalties imposed were as follows. Count 7, (incest), four years’ imprisonment, of which one year and six months was ordered to be served cumulatively on the sentence imposed on count 2. On count 8 (indecent assault), he was sentenced to twelve months’ imprisonment. On count 9 (indecent assault) he was sentenced to two years’ imprisonment and on count 10 (incest) he was sentenced to four years’ imprisonment.
Counts 11 to 13 (1 September 1984 to 1 November 1984)
On this occasion, the appellant and his daughter were in the lounge room watching television. The appellant started to pull down his daughter’s pants but was interrupted by a knock on the door. He told his daughter to keep quiet, which she did. He then kissed her with an open mouth, which was count 11. The appellant then licked her breast or breasts, which was count 12, and then inserted his penis into his daughter’s vagina, which was count 13.
For those offences the appellant was sentenced on count 11 (indecent assault) to three months’ imprisonment; on count 12 (incest) he was sentenced to twelve months’ imprisonment and on count 13 (incest) to four years’ imprisonment, of which one year and six months was to be served cumulatively on the sentence imposed on count 2.
As I will later discuss, the offending conduct ceased in 1985, following his daughter making a complaint, which she then withdrew after her mother learned of the allegation. The appellant denied the allegation at that time and no police investigation was conducted.
With respect to the sentences imposed on counts 6, 7, 10 and 13 the appellant was sentenced as a serious sexual offender. By virtue of the definition of “serious sexual offender” in s.6B(2) the declaration of a person as a serious sexual offender is applied only to convictions for sexual offences which occur following convictions for two other such offences. His Honour treated the first two counts of incest, counts 2 and 4, as being the first two convictions for sexual offences and, therefore, neither was subject to the declaration. Mr Hillman submitted that his Honour was in error in the manner in which he dealt with the appellant as a serious sexual offender. He submitted that in declaring the appellant to be a serious sexual offender only for counts 6, 7, 10 and 13 his Honour assumed that it was only the offence of incest which constituted a serious sexual offence under Part 2A of the Sentencing Act 1991. Mr Hillman submitted that each offence of indecent assault under s.44(1) of the Crimes Act was also a “sexual offence” as defined by s.6B(1) and accordingly it was from counts 3 to 13 that the appellant was a serious sexual offender and, thus, by virtue of s.6E, unless the court ordered otherwise, the sentences on each of those offences must have been served cumulatively on each other such sentence.
As his reasons demonstrate, his Honour treated all of the sentences as though they would be served concurrently rather than cumulatively, unless an order of cumulation was made as to any offences. On counts 6, 7 and 13, he then announced orders of cumulation, believing that he was imposing a greater sentence on those counts by way of orders of cumulation than had been imposed on the other counts, but the effect of his order was to actually moderate the full measure of cumulation which otherwise would have applied, by virtue of s.16(1A)(c). In effect, his Honour thought the situation was governed by the terms of s.16(1) of the Act, which declared that all sentences were to be served concurrently unless otherwise directed by the sentencing judge, whereas by virtue of s.16(1A)(c) the assumption of concurrency stated by s.16(1) did not apply to serious sexual offenders under Part 2A.
That submission of Mr Hillman that the approach adopted was erroneous was predicated on the assumption that the offences of indecent assault (counts 1, 3, 5, 8, 9, 11 and 12) were “sexual offences” as defined within s.6B(1). That definition states that a “sexual offence” is an offence stipulated in clause 1 of Schedule 1 of the Sentencing Act. In clause 1(c)(i) a sexual offence includes indecent assault under s.44(1) as applied by virtue of the Crimes Act 1958, as amended on 1 March 1981 by s.5 of the Crimes (Sexual Offences) Act 1980, and as repealed on 5 August 1991 by s.3 of the Crimes (Sexual Offences) Act 1991. The contention of Mr Hillman is, therefore, correct.
The total effective sentence imposed by the learned sentencing judge was eight years and six months imprisonment and his Honour fixed a period of six years and six months to be served before the appellant was eligible for parole. His Honour declared two days in custody as pre-sentence detention.
In his submissions as to the ground of manifest excess Dr Freckelton first advanced an argument which amounted to an assertion of specific sentencing error, and which ought to have been the subject of a discrete ground of appeal. The Court allowed counsel to amend the grounds of appeal to add as Ground 2 the complaint that “The learned sentencing judge was in error in his consideration and application of s.6D of the Sentencing Act 1991”.
The argument under ground 2 related to statements by the judge in his sentencing remarks that “[I]n sentencing you, the issue of public protection has not been taken into account. The issue of public protection is not the principle purpose for which this sentence is imposed”. Dr Freckelton submitted that those statements conflicted with the injunction under s.6D(a) that when determining the length of sentence for a serious offender the court “must regard the protection of the community from the offender as the principle purpose for which the sentence is imposed”. From that starting point Dr Freckelton mounted an argument that since in this case the appellant did not present as a continuing risk to the community, it followed that the sentence which should be imposed was less than that which might otherwise be thought appropriate for the particular offending conduct.
It is unnecessary to deal with this argument in any detail, given the conclusion I have otherwise reached as to the first ground of appeal. The injunction under s.6D(a), which operates in all cases, is modified by the discretion given under paragraph (b) which states that the judge “may” impose a disproportionate sentence in order to achieve the protection of the community. In my view, the passage in the judge’s reasons amounted, in context, to no more than the judge announcing that he did not intend to impose a disproportionate sentence in this case. The effect of s.6D(a) is to grade protection of the public as the principal purpose which the sentencing judge has to take into account, but even if the offender is shown not to be a risk in that respect other sentencing considerations, such as general and specific deterrence, might in any event dictate that condign punishment be imposed in a given case.
In the end, I have concluded that there is nothing in the contention advanced by Dr Freckelton as a discrete issue under ground 2, but which had also been relied on as one aspect of the complaint under ground 1. The complaint that the sentence was manifestly excessive was, however, advanced on other, more significant bases, and I turn to those arguments.
The overall complaint is that the sentencing approach adopted by the judge was unbalanced, in that too much weight was given to denunciation of the conduct of the appellant and too little weight was given to mitigatory factors.
In his sentencing remarks his Honour denounced the conduct of the appellant in very strong terms and on very many occasions. The sentencing remarks occupy some 12 pages of transcript, more than half of which involve descriptions of the offending conduct, expressed not merely in narrative terms but also accompanied by strong denunciatory commentary, and other highly critical and denunciatory remarks concerning the conduct of the appellant. The language in which the denunciation is framed is at times somewhat emotional. His Honour said, for example, that “Even for a hardened trial judge, it is sickening just recounting the history of your offending” and he said that “An almost sacred role for these courts is the role of protecting the most vulnerable members of our community such as children.”
The Court of Appeal has many times expressed the abhorrence of the community for the offence of incest, and has done so in very strong terms.[8] What his Honour said was consistent with statements made in the judgments of the Court of Appeal but the frequency of such denunciatory remarks raised a concern in my mind, which was not removed, that the sentencing process had been unbalanced, in that his Honour’s justifiable abhorrence of the offending conduct seemed to dominate all other sentencing considerations. It is true that his Honour did acknowledge and identify a number of mitigating factors in the case, but each of them seemed to me to be given rather less weight than was appropriate, in my opinion.
[8] See R. v. Wakime [1997] 1 V.R. 242 at 244; R. v. Were [1997] 1 V.R. 647 at 653; R. v. WEF [1998] 2 V.R. 385 at 387; DPP v. MJ [2000] VSCA 66 at [17]-[18]; DPP v. G [2002] VSCA 6 at [9]; R. v. RTG [2004] VSCA 89 at [29].
The appearance that the sentencing remarks were unbalanced by giving undue emphasis to denunciation and expressions of abhorrence is further emphasised by the approach taken to the use of the victim impact statement in this case.
The victim impact statement was an important document for sentencing purposes. In it the daughter said that she had suffered immense emotional and mental trauma. She said that she had seen a doctor and was still seeing a counsellor. Although the document itself did not make it clear, it seemed likely that the daughter was referring to counselling that she had received since she had made the more recent complaints, in 2001, which led to her father being charged in 2002. The first sexual assaults had occurred almost nineteen years earlier but the victim described how their impact had continued over time. The assaults had caused her to leave school early so as to gain employment and thereby escape the family, but she apparently did return home to live at different times. She also described the continuing impact of the conduct on her later relationships with men.
The victim referred to the breakdown of the family relationship, in particular with her mother, after she made her more recent complaint. She said that the crimes had made her lose all of her family and that while she and her mother had once had a very good friendship she did not now talk to her mother. She said that was very hard on her, as she loves her mother, but she can no longer stand to look at her mother because she has remained with her father. For the same reason, she would not speak to one of her sisters and could not see how those people could still talk to her father after what he had done to her. She said that she did not have many friends and family as a result of what had happened to her. The daughter concluded her victim impact statement by expressing hope that her father would be made to pay for what he had done and said that she would spend the rest of her life suffering the consequences and would have to do so without her mother and family to help her.
The material in the victim impact statement was moving and important for the sentencing process. By s.95A(1) of the Sentencing Act 1991 a victim impact statement is made “for the purpose of assisting the court in determining sentence”. The victim impact statement contains “particulars of any injury, loss or damage suffered by the victim as a direct result of the offence” (s.95B(1)). A copy of a such a statement must be provided to the accused (s.95C), and the judge may rule it inadmissible in whole or part (s.95B(2)).
If the purpose of the victim impact statement is to inform the judge of the impact of the crime on the victim then his Honour appeared to use the statement for an additional purpose, as a means of punishing the appellant. After stating that he had read the victim impact statement and that it was very sad reading his Honour said that he thought it was most important that the appellant take heed of what his daughter had written concerning “the immense emotional and mental trauma that your offending has caused her”. After saying that the daughter had received and was receiving medical treatment and counselling his Honour said “Let me read you her statement, Mr [KHB]”, and proceeded to read the statement in its entirety. Having concluded the reading his Honour said that it was to be hoped that time would in some way assist in healing the deep emotional scars still carried by the appellant’s daughter. In addressing the appellant, his Honour said:
“It seems that by your vile actions Mr [KHB] you have not only estranged your eldest daughter from yourself but also from her mother, your wife, and the other members of the immediate and extended family.”
He then added:
“I note that your wife and members of your family continued to support you to the exclusion, it would seem, in the mind of the principal victim, your eldest daughter. I say the principal victim because it’s quite clear that your wife, your parents and members of your extended family have and will also indirectly become victims as it were of your offending.”
In my view, a victim impact statement is to inform the judge of matters relevant to sentencing. It ought not be used as a means of punishment of the offender, as seems to have been the case. I have other concerns, too, about the way the statement was used in this case. In the first place, it is not clear to me whether the victim was asked whether she wanted her statement to be used in this way. It may be that the victim was not concerned about its use but that could not be assumed, even though a victim must be taken to understand that he or she may be required to give evidence and be cross-examined on the contents of his or her statement (s.95D(1)). In this case it was a document which might well have caused some embarrassment to the victim because in it she referred to her relationship with her partner, in particular their sexual relationship[9]. She also discussed her relations with her own children as well as with her mother and sisters. Whilst all of these may have been matters which the victim would be content, possibly even pleased, to have read out in open court it does not seem to me that that could be assumed. Furthermore, no matter how serious the offending conduct there must remain a hope that, however damaged, the family relationship could one day be restored. In this case, for all of the pain that the victim had suffered (as her impact statement made clear), there had been maintenance of the family relationship, and in particular the relationship between mother and daughter, for more than 15 years since the offending conduct ceased. One would hope, therefore, that that relationship could be revived.
[9] We were not told whether the complainant was in court when the judge delivered his sentencing remarks.
The remarks of the judge quoted above, about the appellant’s wife and family, were not in themselves necessarily unsympathetic to the other members of the appellant’s family, but they followed earlier remarks in which the judge said that when the complainant had first reported the appellant’s activities some 18 years earlier “no-one seemed to have believed her”. He then added “Your wife, for reasons best known to herself, did nothing about it”. Furthermore, after having dealt with the victim impact statement and made the comments quoted above, the judge also said that he “noted” the opinion of psychologist Mr Crewdson that (in his Honour’s words but based on the appellant’s own account to the psychologist) “the inner family group has failed effectively to support the victim and, in effect, has not assisted you in the modification of your own unacceptable behaviour.”
The sentencing remarks, when coupled with the use made of the victim impact statement, may well have been perceived to constitute public criticism of the other members of the family who maintained a relationship with the appellant. That impression might have jeopardised whatever hopes there were for an eventual reconciliation, at least between the complainant and her mother and sisters, if not between the complainant and the appellant. I do not say that the course taken did have that result, and I have no doubt that his Honour would not have intended his remarks to adversely impact on the family in that way. Indeed, before deciding on the course he took his Honour may well have considered, and discounted, the risk of his remarks having an adverse impact on prospects of reconciliation. I simply suggest that it was an issue which merited a cautious approach.
In any event, there may well have been an explanation for the fact that the appellant’s wife had not acted on the daughter’s complaint when first made in 1985. At that time the daughter told a young friend about her father’s abuse, and her allegation was brought to the attention of the complainant’s mother. That led to a public confrontation between the appellant and his wife, but the daughter then denied that her father had been acting inappropriately towards her and the appellant also denied that to have been the case.
The crimes committed by the appellant were very serious and a significant sentence of imprisonment was inevitable. As his Honour acknowledged, however, there were some mitigating factors. Among the mitigatory matters noted by the judge were the fact of the pleas of guilty (albeit made at a late stage) which had spared the daughter giving evidence at the trial, and also the appellant’s solid work history as a glazier, which had been brought to an end by physical disability. The appellant had no relevant prior convictions.
His Honour had before him a very comprehensive report from Mr Michael Crewdson, a psychologist and psychotherapist, which provided, as his Honour acknowledged, a very careful and thorough analysis of the psychological condition of the appellant. His Honour referred to many matters within it when identifying factors in mitigation, but many of those factors seemed to have been significantly downgraded by his Honour. Thus, he noted the appellant’s chronic alcohol abuse and dependence problems. Mr Crewdson said that alcohol abuse and dependence was a mental disorder classified under DSM-IV[10].
[10] Diagnostic and Statistical Manual of Mental Disorders, 2000.
His Honour said, rightly, that Mr Crewdson concluded that the appellant sought to attribute his conduct to alcohol. The judge said that although it contributed in some small part, alcohol did not explain his deviant behaviour, and the great majority of alcoholics would regard his conduct as abhorrent. The judge said that alcohol “had probably exacerbated in you some pre-existing cognitive problems”. The appellant had been born three months prematurely and Mr Crewdson considered that there may have been constitutional issues by way of longstanding impulsivity and inability to foresee consequences or to contain his behaviour. He noted Mr Crewdson’s opinion that there had been an attention deficit disorder in childhood with major implications for a personality disorder in adult life. The offending conduct was opportunistic, Mr Crewdson said, when fuelled by alcohol.
His Honour noted that there had been two suicide attempts, but made little of that save for warning the prison authorities that the appellant was a suicide risk. His Honour accepted that the appellant had not met the diagnostic criteria for paedophilia. However, he suffered chronic alcohol abuse and dependency, which was accompanied by psychological features, with a borderline personality disorder. He came from a seemingly dysfunctional family “with a constellation of pathological issues”.
All of those matters raised by Mr Crewdson were properly acknowledged by the judge, but, even so, in my view his Honour understated the positive factors which emerged in Mr Crewdson’s twenty-one page report. In his report Mr Crewdson noted that the appellant’s chronic alcohol dependence was accompanied by physiological features of withdrawal, tremor, tolerance and amnesia. He was effectively illiterate and his thinking was concrete, impulsively based and narcissistic in style, with a marked tendency to place responsibility anywhere than in himself. He was a person with “an impaired capacity for insight”, and with alcohol induced cognitive impairment. He lacked empathy and identification with his victim, but Mr Crewdson thought he may always have had that failing as a result “of his own developmental influences”, and said that his own impairment “makes him vulnerable also, and less likely than others to understand his own motivation or take responsibility for his actions”.
As to the appellant’s developmental influences, Mr Crewdson noted that the appellant had been close to his father’s brother, who was an important role model to him, and like a godfather. His uncle was murdered, an event which devastated the appellant. The appellant was then about thirteen years of age. Twelve months later his favourite grandmother died, which caused him to be so upset that he was not permitted to go to her funeral. His schooling was very limited.
Importantly, for someone with those characteristics, the appellant, according to Mr Crewdson, had shown “some capacity for rehabilitation” as a result of the confrontational nature of Mr Crewdson’s interview with him.
Later in his report Mr Crewdson again reported that there was some capacity for rehabilitation. As his Honour noted, Mr Crewdson considered that the appellant required treatment for alcohol dependence and for deviant sexual behaviour. His Honour said that he had no doubt that the appellant would receive such treatment within the prison system. That reference to treatment, it seems to me, failed to grasp the context in which Mr Crewdson made his comments. In the course of submissions on the plea counsel for the appellant said that the appellant was keen to undertake a sexual offender’s program. That was an important statement, because it reflected a further glimmer of insight by the appellant into his conduct. A similar note was recorded by Mr Crewdson in his report where he said:
“He still has difficulty in making the connections, but it is to his credit that when confronted in the interview he did try. The encounter would have done little to have allayed his mounting anxiety but it does offer a hope that there might be some prospect of rehabilitation.
This will require:
•
A circuit-breaking process which removes him from contact with alcohol and addresses his deeply-seated therapeutic needs in respect of his addiction and dependence.
• A blunt reality-based approach to his own personality
deficit.
• A therapeutic jurisprudentially applied confrontation with his egocentrically driven behaviour which led to the inappropriate patterns of sexual gratification.
Assuming that this commences within the process of incarceration it will need to be maintained within the community under supervision for a substantial period of time.”
His Honour said nothing about rehabilitation save for the reference contained within the statement that: “In sentencing for serious offences of this nature, the aspects of general deterrence must be an important sentencing consideration balanced, of course, against the need for specific deterrence, your prospects for rehabilitation, public protection and just punishment” (my emphasis).
The judge, in my opinion, also undervalued the remorse of the appellant. In the course of submissions on the plea his Honour observed that his observations of the appellant in the dock were that he was “most remorseful” for what had happened. That statement does not appear to have been reflected in the sentencing remarks. Instead, his Honour said:
“The court accepts that, to some degree you are remorseful for your offending behaviour, although it rather suspects that a large degree of such remorse is what could perhaps best be described as being remorse associated with yourself and your present predicament.”
There were other possible indicators of remorse which appear not to have been given weight by the judge. The fact that the activities had ceased in 1985 (at the latest), and were never again engaged in, appears to have been given little weight by the judge, save to say that the wheels of justice ground slowly and it took twenty years for charges to be brought. Not only should the appellant have gained some credit for the fact that no further offending had taken place but he had made two suicide attempts, first in 1985, the attempt occurring, he said, about a year after he had first sexually abused his daughter. The appellant did not himself attribute the suicide attempt on that occasion to his conduct with his daughter, but instead said it was caused by stress which arose out of an attempt to sell a house. He spent a week in Larundel psychiatric hospital and there seems to be no doubt that the suicide attempt was a genuine one, foiled only by chance.
The second suicide attempt followed his daughter’s more recent renewal of her complaint about his behaviour. He was admitted to Royal Melbourne Hospital overnight and released. The allegations had come to the attention of the police on this occasion when at a party for his granddaughter the appellant and his son-in-law got into an argument, in the course of which his daughter announced to those present that her father had sexually abused her. She then went to the police. It seems that the family had maintained some sense of unity, at least on the surface, for some sixteen years after the allegations were first made, and it was only after they were again raised that the family unit all but collapsed. The appellant was interviewed by police on 12 July 2001, and gave no-comment responses. He was charged on 9 May 2002.
His Honour dealt with the suicide attempts only for the purpose of alerting prison authorities that there was a high risk of self-harm.
His Honour accepted that although he had not reported it to Mr Crewdson the appellant when aged ten had been the subject of serious sexual abuse by an adult male who is now deceased. That matter had been raised by counsel at the plea hearing and counsel said that the alleged abuser had been accused of abusing other persons as well. His Honour accepted the submission and noted that it was so often the case that sex offenders had themselves been subject to sexual abuse as children.
Mr Crewdson, who had not been informed by the appellant about his history of sexual abuse, nonetheless said of the appellant:
“However in a further sense he too has been a ‘victim’ of failed support. Two apparently sincere suicide attempts, other episodes of damage and educational disadvantage, a chronic alcohol abuse history, and socially disrupted activity – additional to the offending behaviour, have not attracted any real support or intervention – until now.”
His Honour imposed a sentence which he said was “towards, but short of, the upper end of the scale . . . for offending of this nature”. In my opinion, when comparison is made with recent sentencing decisions in this Court the sentence which was imposed in this case is at the higher end of the range for such offences.[11] The conduct was indeed, serious. It was a gross breach of trust against a very young child, the appellant’s daughter, accompanied by a threat that if she reported what had happened her family would abandon her. It plainly merited a severe sentence. As serious as the offending was, however, it did not have some of the hallmarks of many of those cases in which sentences have been imposed at the higher end of the range. Although there were three daughters to the marriage the abuse was against one only; the conduct was on four occasions only and ceased at least fifteen years prior to arrest; there was some evidence of remorse; he was not a paedophile; he had no relevant prior convictions; he pleaded guilty to the offences; there were some prospects of rehabilitation; unlike many other cases which have been dealt with by the courts, none of the counts here was a representative count; the evidence did not suggest that he posed a continuing risk to the community of re-offending, and it was not appropriate to exercise the discretion under s.6D(b) so as to impose a disproportionate sentence [12]. The mitigatory value of those matters may not have been great, but they had to be fully acknowledged.
[11] See DPP v. VH [2004] VSCA 180 at [22]-[24].
[12] See R. v. CVP [2002] VSCA 193, at [47]-[48].
In addition, the offender was himself a victim of sexual abuse and had significant psychological problems. He was an alcoholic - a recognised psychological disorder - but had throughout his life maintained a good work record.
The protection of the community was to be the principal purpose of sentencing the appellant, but in this case, as I have said, there was no evidence that he posed a continuing risk to the community. Considerations of general deterrence and denunciation of the conduct remained of considerable importance, but, in my opinion, as bad as this case was, when proper weight is given to mitigatory factors as well as aggravating factors it did not fall in the higher category of incest offences when compared with the many dreadful incest cases that have come before this Court.
No complaint was made about the individual sentences which were imposed, but only as to total effective sentence and the non-parole period. In my opinion, in those respects, only, the sentence was manifestly excessive.
The judge acted under a misapprehension as to the effect of a declaration that the appellant was a serious sexual offender, and, in the event that the Court resolves to allow the appeal and to re-sentence the appellant it will be necessary to re-cast the sentences with respect to orders of cumulation and/or concurrency only. In my opinion, should re-sentencing occur the actual length of the sentence on each count ought be maintained, the reduction in the total effective sentence being achieved by orders as to concurrency and/or cumulation. It is appropriate that the end result be, just as the judge intended, an effective cumulation of part of the sentences on counts 6, 7 and 13. That result would be achieved by orders as to concurrency, not cumulation, having regard to s.6E.
Thus, I would confirm the sentences imposed on each of counts 1 to 13. I would declare that from count 3 to 13, inclusive, the appellant is sentenced as a serious sexual offender. As to counts 3, 4, 5, 8, 9, 10, 11, and 12 I propose that the Court orders that those sentences be served concurrently with each other and with the sentence on count 2. As to counts 6, 7 and 13 I propose that the Court order that three years of each sentence be served concurrently with each other and with the sentence on count 2.
The total effective sentence, therefore, would be seven years imprisonment. I propose that the Court order that the appellant serve five years from 3 October 2003 before being eligible for parole.
GILLARD, A.J.A.
| 65 | On 2 October 2003, the appellant, KHB, was arraigned in the County Court at Melbourne. He pleaded guilty to seven counts of indecent assault contrary to s.44(1) of the Crimes Act 1958 (“the Act”) and six counts of incest contrary to s.52(1) of the |
| R. | v. | KHB | 22 | J.A. GILLARD, | EAMES, | A.J.A. |
Crimes Act 1958. The offences occurred in the period between 1 January 1983 and 31 December 1985. Accordingly, the sections of the Act concerning penalty which applied were those in operation during that period. The maximum sentence for indecent assault at that time was five years and the maximum penalty for incest was 20 years’ imprisonment.
After hearing a plea, the learned judge reserved his decision and on the following day, 3 October, the appellant was sentenced to imprisonment.
The victim of the offences was the daughter of the appellant who was born on 26 August 1972 and at the time of the commission of the offences was aged between 10 and 13 years. The appellant was born on 8 February 1953 and at the time of the offences was aged between 29 and 32 years.
The conduct constituting the criminal acts occurred on four separate occasions over a period of some three years.
I have had the opportunity of reading the reasons for judgment of Eames, J.A. and I adopt his summary of the criminal acts.
The learned trial judge passed sentence of imprisonment as follows:
Count 1 - indecent assault - 3 months; Count 2 - incest - 4 years; Count 3 - indecent assault - 12 months; Count 4 - incest - 4 years; Count 5 - Count 6 - indecent assault - incest - 2 years;
4 years - 1 year 6 months
cumulative on the sentence Count 7 - incest - imposed on Count 2;
4 years – 1 year 6 months
cumulative on the sentence imposed on Count 2; Count 8 - indecent assault - 12 months; Count 9 - indecent assault - 2 years; Count 10 - incest - 4 years; Count 11 - indecent assault - 3 months; Count 12 - Count 13 - indecent assault - incest - 12 months;
4 years – 1 year 6 months
cumulative on the sentence imposed on Count 2.
This resulted in a total effective sentence of eight years and six months’ imprisonment and his Honour fixed a non-parole period of six years and six months. Further, the judge declared that the appellant had served two days in pre-sentence custody and that period was to be reckoned as a period of imprisonment already served.
On 9 October 2003, the appellant filed a notice of application for leave to appeal against sentence and on 11 June 2004 he was granted leave to appeal. His notice states one ground, namely –
“The sentence imposed is manifestly excessive in all the
circumstances.”
Dr Freckelton, on behalf of the appellant, at the outset of his submissions made it clear that the ground of appeal concerned the head sentence and the non- parole period. It was not contended that any individual sentence itself was manifestly excessive. Specifically, it was argued that the cumulation of three separate periods of 18 months on the base sentence of four years was manifestly excessive, resulting in an excessive overall sentence and non-parole period.
The Sentencing Process and Appellate Intervention
What I am about to say is well-established law and is trite. However, it is apparent that from time to time appellate counsel, who more often than not do not appear at the trial, overlook the heavy burden which rests upon an appellant to establish error in the sentencing process, where no specific error is identified. All too often the ground of manifest excessiveness is relied upon without adequate thought being given to the necessity of persuading a court that it is the end result in all the circumstances which must lead to the conclusion that error occurred in the sentencing process.
The responsibility of inflicting punishment lies solely with the judge. He or she must form his or her own view of the facts and determine the seriousness of the crime and how severely or how leniently he or she should deal with the prisoner. See R. v. Harris[13]. In relation to the sentencing process I refer to what four members of this Court said in R. v. Storey[14]:
“Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single ‘right’ answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the ‘instinctive synthesis’ which takes account of the various purposes for which sentences are imposed – just punishment, deterrence, rehabilitation, denunciation, protection of the community – and which pays due regard to principles of totality, parity, parsimony and the like.”
[13] [1961] V.R. 236 per Lowe, J.
[14] [1998] 1 V.R. 359 at 366.
The sentencing process must take into account the personal factors of the prisoner and any mitigating matters. The object of sentencing is to pass a sentence which is the appropriate sentence. The court is bound to take into account the provisions of the Sentencing Act 1991. The weight to be attached to each factor, whether it be of gravity, aggravation, personal or mitigatory, depends upon the particular circumstances of the case. In the end result, the punishment must fit the crime. It must be appropriate and proportionate to the gravity of the crime considered in the light of the objective circumstances including all matters of mitigation and matters personal to the prisoner.
The result of the sentencing process is the exercise of a discretion. This means there is room for difference of opinion as to what is the appropriate sentence in all the circumstances. It is not a question of an appeal judge saying that he or she would have imposed a different sentence. The question is whether or not the trial judge erred in the exercise of his or her discretion in fixing the sentence.
In Lowndes v. The Queen[15] the High Court said:
“Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.”
(Emphasis added).
[15] (1999) 195 C.L.R. 665 at 671.
The reference to the principle being “basic” is to the well-known case of House v. The King[16]. The reason why the sentencing judge’s role is of vital importance in the administration of the criminal justice system is because he or she is entrusted with the function of sentencing the criminal. If due weight is not given to that role, then the arena for sentencing would move from the court at first instance to the appellate court which of course would then have the effect of reducing the proceeding in the lower court to nothing more than a preliminary skirmish. See observations of Gibbs, C.J., Wilson and Brennan JJ. in another context in Coulton v. Holcombe[17]. Full effect must be given to the decision reached by the sentencing judge in the exercise of his or her discretion.
[16] (1936) 55 C.L.R. 499.
[17] (1986) 162 C.L.R. 1 at 7.
This Court is dealing with an attack upon a discretionary judgment. The principles which have been often quoted were stated by Dixon, Evatt and McTiernan, JJ. in House v. The King [18]. It is unnecessary to repeat them.
[18] At pp.504-5.
It must not be overlooked that House v. The King was a criminal case and in later cases the principles were applied to the sentencing process in a criminal proceeding[19]. More recently the principles were again re-stated by the High Court in Dinsdale v. The Queen [20].
[19] See Cranssen v. The King (1936) 55 C.L.R. 509 at 519; Harris v. The Queen (1954) 90 C.L.R. 652 at 655-6.
[20] (2000) 202 C.L.R. 321 at 324-6 per Gleeson, C.J. and Hayne, J. and 339-41 per Kirby, J.
In Australian Coal and Shale Employees Federation v. The Commonwealth[21] Kitto, J. referred to what he described as “a strong presumption in favour of the correctness of the decision appealed from” in the context of the appellate jurisdiction involving a discretionary judgment. Although the case was a civil one, in my view his Honour’s observations apply to the exercise of a discretionary judgment in sentencing.
[21] (1953) 94 C.L.R. 621 at 627.
The principles establish the following step-by-step process when considering an appeal against sentence.
•
Is there any demonstrable error identified in the sentencing process? The error may be found in what the judge said expressly or impliedly, or the result of the sentencing process may suggest an identifiable error. For example, in cases where there are multiple counts, there may be inconsistency between the penalties imposed in relation to like counts or the cumulation or concurrency of the sentences may point to error in carrying out the exercise.
•
If error is demonstrated, is it a material error? If it is not a material error, it will not vitiate the exercise of discretion. See Michael Dennis[22] (incorrect maximum sentence applied). Whether an error is material and fatal to the discretion depends upon all the circumstances.
•
In the absence of demonstrable error was the result so unreasonable or unjust that the appellate court may conclude that the trial judge failed to exercise his or her discretion in accordance with the law? This is not a question of identifying particular error. In House v. The King[23], the High Court expressed the test in this way –
[22] (2000) 114 A. Crim. R. 33 at 36.
[23] At p.504.
“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
(Emphases added).
In Cranssen v. The King[24], Dixon, Evatt and McTiernan, JJ. said with respect to identification of error the following[25]:
“But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.”
[24] (1936) 55 C.L.R. 509.
[25] At p.520.
In Dinsdale v. The Queen, Kirby, J.[26] referred to the appellate court being able to infer “that, in some unidentified way there has been a failure to exercise the power properly.”
[26] At p.340 [59].
Sometimes when arguing manifest excessiveness arguments are put that the sentencing judge has undervalued a particular mitigating factor or placed too much weight on an aggravating factor. Unless there is something in what the judge said or the result of the sentencing exercise points in this direction, more often than not, such observation is speculation. The trial judge carefully considers the facts and circumstances, takes into account all relevant matters of aggravation, mitigation and personal factors, and arrives at a sentence or a total sentence which the judge thinks is proportionate to the crime. More often than not it is difficult to say, in carrying out that process, what weight is given to a particular factor, although on occasions some factors stand out as warranting greater weight than others.
Often when it is argued that the end result suggests error, the question is asked, was the sentence manifestly excessive or manifestly inadequate? When it is stated in this way, the excessiveness or inadequacy must be manifest, that is, patently obvious when one considers the result, taking into account all relevant circumstances. In Cranssen v. The King[27], Dixon, Evatt and McTiernan, JJ. posed the test in this way:
“In the present case it appears manifest that a sentence of five years’ imprisonment is out of all proportion to any view of the seriousness of the offence which could reasonably be taken.”
[27] supra, at p.520.
The facts and sentence in that case demonstrated manifest excessiveness. The reasoning of the Court provides an example of how courts approach and determine the issue. The excessiveness was obvious and plainly so when the sentence was considered in relation to the facts.. The prisoner was a Roman Catholic priest who conducted a mission in New Guinea. Another religious faith entered the area and members of that faith stirred up disaffection against the priest amongst the local natives. The priest warned them to desist but they continued to do so and he organised a party of natives sympathetic to him, who with some violence expelled the others and burnt their shelters and huts. The priest was charged with arson and was advised to plead guilty by his solicitor, who said that he would be fined only a small sum. He pleaded guilty and was sentenced to five years’ imprisonment with hard labour. As the High Court justices pointed out, the arson comprised the burning of three flimsy structures readily replaceable. Their Honours concluded[28], “Yet a term of five years’ imprisonment appears a crushing punishment bearing no proportion either to the impropriety of the applicant’s conduct or the kind of penalty which would suffice as a deterrent.” Their Honours substituted a sentence of six months.
[28] At p.521.
When the excessiveness ground is relied upon the appeal court must perform the exercise the trial judge performed. That is, consider all relevant matters and then answer the question – was the judge’s sentence unreasonable or plainly unjust, so that the court implies that in some way there has been a failure properly to exercise the discretion - see Harris v. The Queen[29]. Is the sentence manifestly excessive or inadequate? Does the result bespeak error in the sentencing process? The answers to the questions are very much a matter of impression or reaction.
[29] (1954) 90 C.L.R. 652 at 656.
Of course, consistency in sentencing is important and must be borne in mind by the sentencing judge. However, it is the rare case where the facts of a prisoner’s criminal activity and his personal matters are the same or similar to those of another case. Consistency in punishment is a reflection of what is fair in the criminal system[30]. The court must strive for consistency when dealing with like offenders but it is rare to find two cases which are the same.
[30] See Lowe v. The Queen per Mason, J. (1984) 154 C.L.R. 606 at 610-1.
During argument Dr Freckelton identified what he submitted was an error and leave was granted to the appellant to rely upon the following ground –
That the learned trial judge erred in his consideration and application of s.6D of the Sentencing Act 1991.
I have read the reasons of Eames, J.A. in respect to this new ground and I agree with his Honour that the ground has no substance and fails.
Eames, J.A. also referred to a matter raised by the learned prosecutor. Mr Hillman submitted that the trial judge was wrong in the way he dealt with the appellant as a serious sexual offender. The learned judge only dealt with him as a serious offender on Counts 6, 7, 10 and 13, whereas he should have sentenced him as a serious sexual offender in relation to Counts 3 to 13 (inclusive). I have read what Eames, J.A. has said and I agree with his conclusions.
Manifestly Excessive
Dr Freckelton disavowed any suggestion that there was an identifiable error in the sentencing process by the learned trial judge save for the additional ground which failed. It follows therefore that his submission is based on the proposition that the result of the sentencing process was manifestly excessive and hence error was disclosed. As Dr Freckelton disavowed any suggestion that the individual sentences were manifestly excessive, the attack must be upon the cumulation imposed by the learned judge leading to a manifestly excessive head sentence and an excessive period before the appellant was eligible for parole.
The base sentence was on Count 2. This was four years for the appellant requiring his daughter, who was then aged 10 to 11 years, to suck his penis. The maximum penalty for this appalling conduct was 20 years’ imprisonment. Shortly thereafter, he placed his penis in his daughter’s vagina causing her pain. She cried saying, “No”. He removed his penis and then ejaculated onto her stomach. He received four years’ imprisonment for that count but since it was part and parcel of the one episode the learned judge made that sentence concurrent. The appalling effect on the mind and body of a 10 to 11 year old child is obvious. Counts 1 to 4 (inclusive) arose out of that one occasion. But when one comes to Count 6, the Court is dealing with a different occasion. The complainant was having a bath whilst her mother was at work, the appellant entered the bathroom, and inserted his finger into his daughter’s vagina. He required her to get out of the bath and lie on a towel and he inserted his penis into her vagina. It was the latter which constituted Count 6. He was sentenced to four years in respect to that offence and the learned judge ordered that one year six months was to be cumulative on the sentence imposed on Count 2. In my view, the learned judge correctly applied the principles concerning cumulation and was quite justified in imposing one year six months cumulative on Count 2. It was a different incident. It was a grave incident in that it was not the result of impulsive conduct; it was clearly premeditated, taking advantage of the absence of the mother, and was the first act of full penile penetration of the vagina.
Count 7 occurred on a later occasion. The appellant entered the daughter’s bedroom and required her to suck his penis. He was sentenced to four years, and one year six months was cumulative on the head sentence.
After this occurred, the appellant indecently assaulted his daughter, and this conduct comprises Counts 8 and 9. He then inserted his penis into her vagina, which was Count 10. He was disturbed by the return of his wife and he quickly left the bedroom. He was sentenced to four years in respect of the latter offence and the judge ordered that sentence be concurrent. No doubt his Honour was influenced by the fact that it was all one incident, being Counts 7 to 10. However, his Honour would have been quite justified in cumulating one year six months in respect to Count 10 instead of Count 7.
The final offence, being Count 13, occurred on another occasion in which the appellant indecently assaulted his daughter, being Counts 11 and 12, and then required her to take his penis into her mouth. He was sentenced to four years in respect to Count 13 and the learned judge ordered one year six months to be cumulative on the sentence imposed on Count 2.
The principles concerning cumulation have been discussed by this Court in a number of cases. See R. v. Lomax[31] and DPP v. Grabovac[32].
[31] [1998] 1 V.R. 551.
[32] [1998] 1 V.R. 664.
In DPP v. Grabovac[33], Ormiston, J.A. said:
“The ordinary principles as to cumulation require that the sentencing judge should as far as practicable identify separate events, ‘episodes’ or ‘transactions’ giving rise to specific counts or groups of counts and to recognise them by ordering at least a degree of cumulation. This is to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity, if all sentences for a series of unconnected offences were to be served concurrently. Difficulty arises not so much in providing for a degree of cumulation but in having proper regard to the principle of totality and in avoiding the imposition of an inappropriately crushing
sentence.”
(Emphasis added).
[33] Supra at p.676.
In my opinion, the learned trial judge carefully applied those principles. The offences in respect of which he ordered part cumulation arose out of separate events and each had features of aggravation. I can see no error in the approach of his Honour in making parts of sentences in respect to Counts 6, 7 and 13 cumulative on the base sentence in Count 2. Further, it cannot be overlooked that s.6E required cumulation in respect to Counts 3 to 13 (inclusive) as the appellant was a serious sexual offender. The judge had a discretion with respect to the application of s.6E and did not cumulate every term of imprisonment. To do so would have had the effect of imposing a crushing sentence contrary to the principle of totality. In my opinion, the learned judge carefully applied the principles and the cumulation was a matter for his discretion. The result does not bespeak error.
This brings me therefore to the question whether the total head sentence was manifestly excessive. Does the end result suggest that the learned judge made an error in the periods of cumulation and their total addition to the base sentence? In this regard, of course, it is necessary to apply the totality principle and to avoid the imposition of an inappropriately crushing sentence.
In Mill v. The Queen[34] the High Court referred to the principle of totality stated in Thomas, Principles of Sentencing35. The Court, in a joint judgment, repeated what the learned author said –
“The effect of that totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.”
This requires the sentencing judge to stand back and consider the aggregate sentence and determine whether it is a fair and proportionate sentence and one that fits the crime.
[34] (1988) 166 C.L.R. 59 at 63.
The success or failure of the present appeal must depend upon whether the head sentence of eight and a half years is manifestly excessive, and leads to the conclusion that the learned trial judge made some error in the sentencing process. In considering this question, all relevant matters must be taken into account.
The starting point in the exercise is the maximum penalty imposed by the legislature. Incest carried the maximum penalty of 20 years at the relevant time. On any view, it is an extremely serious offence. The appellant pleaded guilty to six separate counts of incest which occurred on four separate occasions over a period of nearly three years. The appalling offences were committed on the complainant, his natural daughter. The impact upon the complainant was vividly summarised by her in her victim impact statement which was before the Court and which the judge read to the appellant. The effect upon her has been substantial and has resulted in difficulties she experiences with life, and alienation between her, her mother and siblings. It is a well-known fact that young victims of incest carry the scar for their lives. The appellant breached the trust that he owed to his daughter, caused her physical and mental harm, the latter being far reaching, and has by his conduct divided the family.
Each one of the counts of incest which occurred on four separate occasions attracts a maximum penalty of 20 years. There was just not one act of incest, there were multiple acts. The circumstances of the offending required a substantial sentence of imprisonment. A number of personal and mitigating matters were relied upon. First, it was noted that although there were three daughters of the marriage, the abuse was against the complainant and not the other daughters. Secondly, the criminal conduct occurred on four occasions over a period of years but ceased at least 15 years prior to arrest. Thirdly, there was some evidence of remorse and some prospect of rehabilitation, depending upon certain treatment which would include a degree of supervision. A psychological report from a clinical psychologist, Mr
35 2nd ed. 1979. Michael Crewdson, dated 2 October 2003, was tendered in evidence and considered by the judge. Mr Crewdson was of the view that the appellant was not a paedophile. Other mitigating factors were that he had no relevant prior convictions, and he had pleaded guilty to the offences thereby avoiding a trial which would have been particularly stressful to the complainant. Mr Crewdson’s report did not suggest that the appellant posed a risk of re-offending although Mr Crewdson was of the opinion that he should undergo treatment and opined – “Assuming that this commences within the process of incarceration, it will need to be maintained within the community under supervision for a substantial period of time.” Another matter that was emphasised was that the judge did not apply s.6D(b) which empowers a court in an appropriate case to impose a sentence longer than that which is proportionate to the gravity of the offence in cases involving a serious sexual offender. The judge took the view that it was not appropriate to impose such a disproportionate sentence.
All these matters were considered by the learned trial judge.
Mr Crewdson’s report noted the appellant’s chronic alcohol abuse over many years. He also noted that given his background history, “there may well be a biologically reduced capacity to control impulses, recognise drives and to effectively appreciate their consequences, let alone contain them.” On the other hand, he noted that the appellant did not have the capacity of effective insight into what he had done and Mr Crewdson noted, “His thinking is concrete, impulsively based, and narcissistic in style with a marked tendency to see responsibility vested anywhere other than in himself.” He also noted that the appellant had little insight into his interaction between alcohol addiction, his personality and his behaviour.
It was noted that there had been two suicide attempts by the appellant in the past and that there was an ongoing high risk of self-harm. The first suicide attempt appears to be unrelated to his criminal activity, however, the second occurred after the complainant told her mother.
It was submitted that the learned judge gave excessive weight to specific deterrence but in my view there is nothing in what his Honour said which would lead to that conclusion. It was also put that he gave undue weight to punitive and general deterrent factors. Clearly they were matters his Honour had to take into account and I do not read his sentencing remarks as showing that he gave undue weight to those matters. As I have attempted to emphasise above, in the absence of specific error it is the result which must be examined in the light of all relevant matters to determine whether or not error may have occurred in the sentencing process.
The overall complaint mounted by Dr Freckelton which it was submitted demonstrated the excessiveness, was the submission that too much weight was given to the denunciation of the conduct of the appellant and too little weight given to mitigatory factors. It is correct that in his sentencing remarks the learned trial judge did denounce the conduct of the appellant in fairly strong terms and on a number of occasions. But I am not persuaded that this was an inappropriate course to follow. It was submitted that the undue weight given to denunciation was borne out by the judge reading out the victim impact statement in court. It was asserted that this action led to the conclusion that the statement was used to punish the appellant. A victim impact statement is to assist the court in determining the sentence – see s.95A(1) of the Sentencing Act. The effect of the criminal activity on the victim is a relevant factor to the sentencing process and is evidence relevant to the gravity of the offence. It follows that it is relevant to the question of punishment. In the light of what Mr Crewdson said, namely, there was a general lack of insight by the appellant in regard to what he had done to his daughter and that he tended to view his conduct as explicable on the grounds of intoxication and that he in effect was the victim, it was appropriate for the learned trial judge to read out in full the victim impact statement. Whether or not this is a common practice is not to the point. The fact was that the circumstances demanded that the impact of the appellant’s conduct on the victim should be brought home to him. The victim impact statement is not to be used as a means for punishing the appellant, but in my view it cannot be said that it was so used. The victim impact statement graphically demonstrated the effect the appellant’s conduct has had upon his daughter. The judge carefully considered all relevant circumstances. He considered all matters personal to the appellant and of mitigation and arrived at what he considered was a proper sentence. I am not persuaded that the end result demonstrates error in the sentencing process.
Dr Freckelton referred to a number of cases which he said showed the sentence was manifestly excessive, particularly the non-parole period. However, I am not assisted by that exercise because each case depends very much upon its own facts. I note that the sentence is at the higher end of the scale.
I am not persuaded that the head sentence was manifestly excessive. It was a heavy sentence. That cannot be doubted. But when compared with the maximum of 20 years for each count of incest, and taking into account the criminal activity it could not, in my opinion, be said that the total was manifestly excessive.
That brings me to the non-parole period of six and a half years.
When it comes to the question of a minimum period of imprisonment, the court has a wide discretion[36]. Factors taken into account on the head sentence are relevant and have to be weighed carefully in fixing a minimum period. The weight which should be attached to each matter depends upon the circumstances and as a general rule factors that are favourable to the prisoner are given more weight[37]. It is clear that the learned judge had a wide discretion and the fixing of a period of six and a half years in all the circumstances does not bespeak error in the exercise of his discretion.
[36] See R. v. Lowe (1984) 154 C.L.R. 606 at 610 per Gibbs, C.J. and Deakin v. R. (1984) 58 A.L.J.R. 367.
[37] See Iddon and Crocker v. R. and Bugmy v. R. (1990) 169 C.L.R. 525 at 530-2 and 536-38.
In summary, I am not persuaded that the head sentence or the non-parole period imposed by the learned judge reveal error in the sentencing process. The sentencing remarks of the learned judge were carefully expressed and it is clear that the learned judge applied the correct principles. In my opinion, the appeal should be dismissed.
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| R. | v. | KHB | 6 | J.A. EAMES, | BATT, | J.A. |
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