R v Magner
[2004] VSCA 202
•10 November 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 317 of 2003
| THE QUEEN |
| v. |
| ALLAN JOHN MAGNER |
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JUDGES: | BATT and EAMES, JJ.A. and GILLARD, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 October 2004 | |
DATE OF JUDGMENT: | 10 November 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 202 | |
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Criminal Law – Sentencing – Indecent act with child under 16 – Multiple counts of incest – Wrong maximum sentence for incest – Material error – Fresh evidence concerning health of appellant – Cancer – Probability at trial now certainty of death in gaol – Gaol more onerous – Appellant re-sentenced as a serious sexual offender.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle Q.C. With Mrs. C. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr. M.J. Croucher | Victoria Legal Aid |
BATT, J.A.:
I agree with Gillard, A.J.A. I add only that Mr. Croucher did not ask the court in re-sentencing the appellant to impose a sentence, and in particular to fix a non-parole period, that was so short as to afford the appellant the prospect of release before his death. In that, in view of the very serious nature of this offending, counsel was clearly correct: R. v. Jones[1]; R. v. Barling[2]; and R. v. Williams[3].
EAMES, J.A.:
[1](1993) 70 A.Crim.R. 449.
[2](1995) 75 A.Crim.R. 131.
[3]Unreported, Court of Appeal, 18 September 1995 at p.6.
For the reasons given by Gillard, A.J.A., I agree that the appeal should be allowed and the appellant be re-sentenced as his Honour proposes.
GILLARD, A.J.A.:
On 24 October 2003, Allan John Magner (“the appellant”) was arraigned in the County Court sitting at Bendigo.
The appellant was charged with one count of committing an indecent act with a child under 16, contrary to s.47(1) of the Crimes Act 1958 (“the Act”), and seven counts of incest with a female under the age of 18 contrary to s.44(2) of the said Act. He pleaded guilty to all counts.
On that day his Honour heard a plea which was adjourned until 27 October 2003 when the judge reserved his decision.
On 31 October 2003 at Melbourne, his Honour passed sentence of imprisonment as follows:
Count 1 – indecent act – nine months;
Count 2 – incest – two years;
Count 3 – incest – six years;
Count 4 – incest – two years;
Count 5 – incest – five years;
Count 6 – incest – five years;
Count 7 – incest – two years;
Count 8 – incest – five years, one year cumulative upon Count 3.
This resulted in a total effective sentence of seven years’ imprisonment and his Honour fixed a non‑parole period of four years. As the appellant had been in detention, his Honour made a declaration that 19 days’ pre‑sentence detention be taken into account.
On 12 November 2003, the appellant filed an application for leave to appeal against his sentence. He relied upon five grounds of appeal. They were, that the sentence imposed was manifestly excessive, that the judge erred when sentencing the appellant that the offences called for condign punishment to be imposed, that the judge erred in imposing a large portion of the sentences to be served cumulatively upon other sentences, the judge erred in failing to give any or sufficient weight to the appellant’s health problems, and that the non-parole period was excessive.
At the plea hearing, evidence was adduced that the appellant had undergone surgery for bowel cancer in 2002 and that there was a significant risk of recurrence. In a report dated 7 May 2002, Dr Ivon Burns, a medical oncologist, stated that the appellant was at high risk “for the development of further metastatic disease in view of the extensive lymph node involvement and the additional mesenteric deposits of tumour”. The doctor stated that chemotherapy had been shown to reduce the risk of recurrence and that if the appellant underwent that treatment, he would have a chance of cure of about 40%. This would mean that he had a 60% chance of recurrence and the doctor stated that this would most likely occur within the first two to three years after the initial diagnosis. The learned judge took the evidence into account when sentencing the appellant.
At the plea, the medical condition of the appellant was the subject of three medical reports which were tendered in evidence. The first two were reports from the appellant’s general practitioner, Dr Y.Y. Ong, dated 3 December 2002 and 24 October 2003 respectively. The reports noted that the appellant had had surgery for cancer of the bowel, followed by chemotherapy, and that as at 3 December 2002 and 24 October 2003 there was no evidence of metastasis and it was the doctor’s opinion that the appellant remained well. The doctor stated that the appellant was suffering from some depression. On the other hand, the report of Dr Ivon Burns, the oncologist, dated 7 May 2002, painted a somewhat gloomy picture as to the future as I have set out above.
The learned judge dealt with the appellant’s medical condition as follows:
“Significantly your health is highly suspect and with it your life expectancy. In 2002 you were diagnosed with cancer of the colon. You underwent surgery and subsequent chemotherapy. Nevertheless, statistically you have a 60 per cent chance of death within three years and your treating oncologist is, in his own words, not impressed with your prospects. A medical report, dated 24 October of this year, said that you had a routine check colonoscopy in September which was normal. The problem with that, however, is that the treating oncologist states that the colonoscopy will not detect secondary cancer which normally develops within 12 months of surgery.
That evidence must provide sympathy for you. It cannot, however, give a basis for an unacceptably inappropriate sentence. See as to that the remarks of Mr Justice Crockett in R. v. Barling 79 A.Crim.R. 131 at 134-5 and see also R. v. Jones 70 A.Crim.R. 449 at 456-7, a decision of the New South Wales Court of Appeal. It is further to be borne in mind that nothing in the Sentencing Act detracts from the royal prerogative of mercy. Nevertheless, I have allowed you a shorter period before you become eligible for parole than would otherwise have been the case.”
(Emphasis added.)
On 7 October 2004, John Edmund McLoughlin, a solicitor employed by Victoria Legal Aid, swore an affidavit on behalf of the appellant in which he set out the state of health of the appellant and produced a report of Dr Eugenie Tuck of the St Vincent’s Correctional Health Service at Port Phillip Prison. The doctor’s conclusion was that “(s)ubsequent to Mr Magner’s incarceration he has been demonstrated to have developed progression of his illness and his prognosis is poor. Mr Magner is presently undergoing oral chemotherapy in an effort to provide him with symptomatic relief.”
Mr McLoughlin in his affidavit stated that he had been informed by the appellant that he had been told by Dr Burns that his life expectancy was six months or less.
On 15 October 2004 application was made to the Court for leave to appeal pursuant to s.582 of the Act. Leave was granted.
It is clear from the report of Dr Tuck that the appellant is suffering significant pain and his dose of oral morphine is gradually being increased to provide relief. He is also troubled by lethargy and bouts of nausea and vomiting.
On 25 October 2004 the appellant’s solicitor filed a notice of intention to amend the grounds of appeal and leave was granted to add two further grounds, namely, that the learned judge erred in taking into account the appellant’s ill-health only in respect to the non‑parole period and not the head sentence and, further, in light of the fresh evidence available concerning the appellant’s medical condition, a different sentence should be passed. At the hearing leave was granted to add a further ground that the learned trial judge erred in that he applied the wrong maximum penalty, namely 25 years instead of 20 years. The offences occurred during the period from 1 September 1996 to 31 March 1997. At that time the maximum penalty for incest was level 2 punishment which, according to s.109 of the Sentencing Act 1991, at the relevant time was 20 years. The learned judge proceeded on the basis that the maximum was 25 years.
Dr Ivon Burns, in a further report dated 22 October 2004, stated that although the investigations did not clearly indicate a tumour in December 2003, the appellant’s general condition had deteriorated. In September 2004 investigations revealed intra‑abdominal metastasis at which stage the appellant was commenced on oral chemotherapy. The doctor expressed the view that the appellant had disseminated carcinoma “which is considered incurable. …Although there may be some response and temporary improvement in symptoms, metastatic carcinoma of the large bowel is not considered curable and, on average, runs a course over a number of months.”
Before considering the grounds of appeal, it is necessary to briefly summarise the offences.
The complainant was born on 22 May 1982, is now aged 22 years and at the time of the offences was aged 14 years. The appellant commenced a relationship with the complainant’s mother in 1995 and in 1996 they resided together at a caravan park near Ballarat. The complainant had been in her father’s custody since she was four years of age but regularly visited her mother on access weekends.
The appellant was born on 21 July 1948, is presently aged 56 years and at the time of the commission of the offences was aged 48 years.
On a weekend visit to her mother in Ballarat, during the period, 1 September 1996 to the end of that year, the complainant was in the bedroom of the caravan with the appellant and her mother. The complainant was lying across her mother and the appellant on the bed and the appellant proceeded to fondle her breasts through her clothing. The complainant repeatedly pushed the appellant’s hand away. That is Count 1.
In late 1996 the appellant and the complainant’s mother moved into a house in Snake Valley and at the end of the school year in 1996 the complainant commenced to live with them. Counts 2 and 3 occurred about one week after the complainant moved in with her mother. It appears that her mother, the appellant and the complainant were sleeping on the loungeroom floor and about an hour after going to bed the appellant commenced touching the complainant in and around the vagina, he developed an erection and he asked if he could have sexual intercourse with her, which she refused. He went out and obtained a condom, he resumed touching her around the vagina, he again asked could he go inside her, she refused, but he proceeded to insert his penis into her vagina. She complained that it was hurting and he withdrew.
Counts 4 and 5 occurred close to Christmas 1996. The complainant was asleep in her bedroom when she was awoken by the appellant who proceeded to touch her in and around her vagina. He removed his underpants, had sexual intercourse with her and ejaculated inside her.
Count 6 also occurred in December 1996. The appellant and the complainant went out into a bush block to obtain firewood and the appellant asked if he could have sex with her. They lay down on the ground and had intercourse. The appellant used a condom.
In January 1997 the appellant, the complainant and her mother moved into a flat near Echuca. Counts 7 and 8 occurred in late March 1997. The mother had left the house and the appellant proceeded to hug and kiss the complainant. He undressed her, he placed her on a couch, rubbed her in and around her vagina, and had sexual intercourse, as a result of which she became pregnant. On this occasion he did not use a condom.
On 25 July 1997 she was taken into the care of the Department of Human Services, four months pregnant. The complainant spoke to the police in March 1998. She said that she knew what the appellant had done was wrong, but did not want to prosecute the appellant at that time. She left the door open to possible prosecution in the future when “she was ready for it”.
On 27 March 2000 the appellant, through his solicitors, sought access to the child. The complainant spoke to the police shortly thereafter.
In April 2000 the complainant made two police statements. On 17 May 2001 the appellant was interviewed by the police and admitted that he was the father of the complainant’s child. He stated that it was his belief that the complainant was aged 16 years.
I now turn to the grounds.
Ground 8: Error Concerning Maximum Sentence
This ground was added by leave of the Court. The learned judge proceeded on the basis that the maximum term of imprisonment for incest was 25 years. Counsel had proceeded also on that assumption. However, all were wrong. The maximum was 20 years as I have already stated.
The general rule is that a mistaken belief by the sentencing judge as to the maximum penalty is not fatal to the exercise of the discretion unless the error is material in all the circumstances. The cases were discussed by Charles, J.A. with whom Brooking and Batt, JJ.A. agreed in Dennis[4].
[4](2000) 114 A.Crim.R. 33 at 37.
His Honour said[5]:
“In R v RJE [1999] VSCA 79 Brooking, J.A. considered three cases decided by courts in Victoria which dealt with the imposition of sentence where the sentencing judge had a mistaken belief as to the maximum penalty and concluded that the question whether the error is material and so fatal to the exercise of the discretion depends on the circumstances.”
[5]At p.37.
Hence the question is whether the mistaken belief constituted a material error in all the circumstances thereby causing the sentencing discretion to miscarry.
As a general proposition the maximum penalty is an important consideration in the sentencing process because it represents the community view through the legislature as to the seriousness of the offence and secondly, sets the parameters of the custodial sentence or any other form of sentence such as a fine. However, one may observe from the judge’s reasons and the sentences imposed that although the judge may have been under a mistake nevertheless it made no difference to the end result. Here the learned judge made specific reference to the maximum. He said:
“Some indication of the gravity of your conduct is to be found from the maximum term of imprisonment provided by parliament for incest, that is to say 25 years.”
The judge considered Counts 3 and 8 were the gravest offences, Count 3 being the first act of sexual intercourse and which was not consensual, and Count 8 being the last act of intercourse, and resulting in the conception. His Honour imposed six years in relation to Count 3 and five years in relation to Count 8 and made one year of the latter cumulative with Count 3.
At the outset of the appeal, Mr McArdle who appeared with Mrs Quin for the Crown, conceded that the judge’s mistaken belief as to the maximum was a material error which meant that the exercise of the discretion was unsound and wrong.
I agree with the concession made by the prosecutor. In my view, it was clear that the learned judge placed reliance upon the maximum at his starting point in relation to the gravity of the offence. The sentencing discretion has miscarried. It follows, in my opinion, that the Court must now re‑sentence the appellant. However, before I state the sentence I would impose, I wish to say a few words about some of the other grounds of appeal.
Ground 7: Fresh Evidence
Ground 7 is in these terms –
“In light of fresh evidence available about the [appellant’s] medical condition a different sentence should be passed.”
As I have stated, the appellant’s ill-health was raised at the plea where it was stated that he was in remission but still at risk and that his long term prognosis was poor. The learned judge, in his sentencing remarks, dealt with the question, I have set out above.
The learned judge did take into account the appellant’s history and in particular noted that his life expectancy was such that he would have a 60% chance of death within three years.
The fresh evidence which is before this Court reveals that the appellant’s life expectancy is to be measured in a matter of months rather than years. His deterioration has obviously increased more quickly than was expected at the time of the plea which was 12 months ago. In that sense it does constitute fresh evidence. What was a statistical probability is now a certainty.
The Crown did not oppose the tender of the new material and the learned prosecutor, Mr McArdle, accepted that the rapid deterioration throws a different light on the circumstances which existed at the time of sentence and accordingly imprisonment may now be a greater burden than realised at the time of sentence.
The question of fresh evidence in relation to the state of health of the prisoner was discussed by this court in R. v. Kevin Williams [6]. Charles, J.A. who gave the leading judgment referred to what Crockett, J. said in Eliasen[7]. Crockett, J. said:
“It is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon the applicant to be placed before this Court with a view to this Court’s reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, even where the judge’s sentencing discretion has not miscarried, the case must be treated as one calling for appellate intervention.”
[6]Unreported, delivered 18 September 1995.
[7](1991) 53 A. Crim. R. 391 at p.394.
As his Honour stated, if the Court considers on the new material that the sentence imposed was not appropriate, then the appeal may be allowed and a different sentence passed. It is observed that the court is not proceeding on the basis that the sentencing discretion has miscarried but rather the court is considering the sentence imposed in the light of the new material. In respect to the question of a terminal illness, Charles, J.A. had this to say[8]:
“In these circumstances, in my view, it has been established that the applicant will be serving his sentence in prison in greater discomfort than would otherwise be the case. In particular he will be deprived of the support of his family at a time when he is dying of cancer and inevitably will have to face the prospect that his last days will be spent in prison rather than in his own home with his family.”
[8]At p.6.
Those observations are apposite in the present matter. The certainty of his death is the basis on which the Court re‑sentences. I refer to R. v. Babic[9] and R. v. W.E.F.[10] where the principles concerning fresh evidence were applied with different results.
[9][1998] 2 V.R. 79.
[10][1998] 2 V.R. 385.
Ground 6: Ill-health and Head Sentence
Ground 6 was in these terms –
“The learned sentencing Judge erred in taking the [appellant’s] ill‑health into account only in fixing the non-parole period.”
I have set out above what his Honour said on the sentencing process in relation to the effect of the appellant’s illness. His Honour stated that he allowed the appellant a shorter period before being eligible for parole because of the probability that he would die within a matter of years. It was submitted that the judge should have taken into account that factor in fixing not only the individual sentences but the total effective sentence. Reference was made to R. v. Bolton & Barker[11]. The learned judge did not treat this factor as one going to difficulties of undergoing a prison sentence but rather a matter of sympathy or mercy.
[11][1998] 1 V.R. 692.
In my opinion, the learned judge should have proceeded on the basis as stated in Williams’ case, namely, that it would make the serving of his prison sentence more onerous. As was made clear in R. v. Bolton & Barker, relevant factors must be taken into account not only in fixing the head sentence as well as the non-parole period.
I now turn to the question of re-sentencing.
Re-sentencing
It does not follow that because the sentencing discretion miscarried and/or there is additional evidence which bears on the sentence imposed, the Court is bound to re-sentence the appellant to a lower sentence. It is now the function of this Court to consider the question afresh. Section 568(4) of the Act deals with re-sentencing. The Court re‑sentences in accordance with the law and facts at the date of the re-sentencing – see R. v. Carroll[12].
[12][1991] 2 V.R. 509 at 511.
The sentencing process was described by the Court of Appeal in R. v. Storey[13] where four members of the Court said:
“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][1998] 1 V.R. 359 at 366.
The starting point in the exercise is the seriousness of the offences according to the Parliament. At the time the offences were committed the maximum penalty for incest was 20 years and, for an indecent act with a child under 16, was ten years. There is no doubt the offences were serious. It has been said often by this Court that the crime of incest especially involving young children is very serious – see R. v. Ware[14].
[14][1997] 1 V.R. 647 at 653-4 per Hedigan, A.J.A.
There is no dispute as to the facts, and accordingly I am prepared to accept the summary of facts stated by the learned judge which I have summarised above. The Court is dealing with multiple counts. It is bound to impose a sentence proportionate to the level of criminality of each count, of course taking into account all relevant matters including matters in mitigation. The Court must then consider the question of concurrency and cumulation and Part 2A of the Sentencing Act 1991 dealing with serious sexual offenders and bear in mind the principle of totality.
Mr Croucher of counsel for the appellant identified a number of matters some of which he submitted to the Court were of a mitigating nature. He submitted that the counts were neither representative nor rolled up but were discrete offences. That is correct. These are not mitigating factors but are emphasised going to the issue of aggravation. That is showing an absence of aggravation. But it must be pointed out that the criminal acts were carried out over a period of time, namely, from early September 1996 through to late March 1997. Many of the acts were premeditated and could not have been the result of unthinking or impulsive conduct. The appellant must have realised from an early point in his pursuit of the complainant that what he was doing was wrong. It is correct that the appellant when first interviewed by the police made admissions and cooperated with the police. He has admitted that he was the father of the child. There was a delay between the offending and the sentence imposed. The offences occurred in the latter part of 1996 up to the end of March 1997. The matter came to the attention of the Department of Human Services by mid-1997 at which stage the complainant was four months pregnant. The complainant spoke to the police in March 1998 but did not want to proceed with any prosecution. In late April 2000 the complainant made two statements to the police. The police spoke to the appellant by telephone on 20 July 2000 and on 24 May 2001 he was interviewed by the police. The matter was listed for a committal mention on 10 October 2001 but the appellant was not committed for trial until 7 August 2003. He underwent his first operation for cancer in early 2002 and this would explain some of the later delay. It was not until 24 October 2003 that he was presented for trial.
Whilst some of the delay was attributable to the appellant’s ill-health, nevertheless, in my opinion, most of the delay was a matter beyond his control and is a factor to take into account in his favour in determining the appropriate sentence. See R. v. Miceli[15].
[15][1998] 4 V.R. 588.
Mr Croucher emphasised that the appellant admitted his wrong‑doing at the first opportunity he had, when interviewed by the police, and that he pleaded guilty at his trial. He frankly admitted his wrong-doing. Remorse is a relevant factor as is, of course, his plea of guilty. These are matters that are taken into account in his favour. Further, he has no prior convictions.
It was also submitted by Mr Croucher that the seriousness or gravity of the wrong‑doing was a relevant matter, which I agree, and it was put that there were features about this seduction which were not as serious or grave as in other cases. The seriousness or gravity of an offence is a matter that the court must take into account and although all acts of incest are indeed of the most serious and grave nature, nevertheless the level of gravity and seriousness will vary from case to case. It was said that although the earlier criminal acts were performed without any real consent, nevertheless thereafter the acts were consensual and the complainant herself said as much. It was noted that a worker from the Department of Human Services described the complainant in July 1997 as a “young immature female who was clearly besotted with the appellant”. Whilst that may be so, the fact was that at the time of the last counts she was 14 years of age and he was 48 years of age. At that stage he was living in a family relationship in which he was the partner of the complainant’s mother. I have difficulty with this argument. I do not accept for one moment that this offence is less grave or less serious because there was a degree of consent to the relations. The legislation is there to protect young persons. Because of his relationship with the mother, the appellant was guilty of a grave breach of trust. He used his position to seduce a young girl, 34 years his junior. Further, it cannot be overlooked that the complainant in her victim impact statement made observations concerning the effect of his conduct resulting in her pregnancy at the age of 15 years and her lost adolescent years. She also made the observation that the child is a constant reminder of what the appellant did to her. These factors cannot be overlooked. Incest is a very serious crime and its effects can be long-lasting and traumatic.
In addition, Mr Croucher emphasised - and this was accepted by the Crown – that the fresh evidence, namely, the certainty of death within a matter of months, was a factor that must be taken into account in favour of the appellant because of the difficulties he will experience dying in gaol away from his family and friends.
At the conclusion of the appeal, the Court granted leave for the appellant’s solicitor to file an affidavit concerning the appellant’s history, personal circumstances, and family situation. Mr McLoughlin swore an affidavit on 27 October 2004, and informed the Court that the appellant was born in Deniliquin in New South Wales. He has an older brother, now aged 72, but he and his brother do not get on. The appellant’s mother died when he was three and he lived and worked on the rice farm that his father conducted until he was 18 years old. He did not attend school. The appellant’s father is still alive but he is also suffering from cancer and it is the belief of the appellant that he only has months to live. He wishes to see his father again before he dies.
The appellant was married in 1972 when he was aged 24 and resided in Sydney. By the end of the 1970s the marriage had broken down. There are two children of the marriage, sons, aged 30, and 27 respectively. The sons have families of their own and live near their mother in Sydney. The appellant is on good terms with his sons and when he was residing in Echuca in 2002 his sons had regular contact with him. They are aware of his illness and would like to visit him.
The appellant’s closest friends are a couple and their son who live on a farm outside Moama. Since the appellant’s imprisonment they have visited him regularly whilst he was in Ararat, but since the appellant was transferred to Port Phillip, one of them has only been able to visit him once. It is said that if the appellant was to be released from gaol he would return to live with them on their farm and could receive treatment for cancer at Echuca. They have confirmed that they would be prepared to look after the appellant if he was released.
It is clear that he will be deprived of the support of his family or friends at a time when he is dying and he will face the prospect that his last few days will be spent in prison rather than at home with his family. These are matters that the Court takes into account.
The learned judge took the view that Count 3 was the most serious which in fact was the first penile‑vaginal conduct and was performed against the wishes of the complainant. I agree. The judge also took the view, with which I agree, that Count 8, which was the consensual act of intercourse resulting in the conception, was also a serious offence because the appellant had in the past used a condom but on this occasion had not done so and showed an irresponsible and callous attitude towards the complainant.
His Honour, whilst noting that the crime of incest is a serious crime, said this offending was not in the worst category “because the child (complainant) was not a blood relation and you were not her guardian in the generally accepted sense, but merely her mother’s paramour.” This raised an issue whether the crime is worse if the prisoner is a lineal relative. Mr Croucher referred the Court to a number of authorities which he submitted lead to the conclusion that incest by a natural father was more serious. He referred to R. v. Campbell[16]; R. v. J.[17]; R. v. B.[18]; and D.P.P. v. G.J.L.[19] It is unnecessary to say anything on this topic. The appellant is sentenced on the facts before the Court. He is sentenced as the mother’s partner. A comparison between the criminal acts of a natural father and those of a stepfather is of no relevance in the present case.
[16](1968) Tas. S.R. 38 at 40-1.
[17](1982) 45 A.L.R. 331 at 335.
[18][2003] Q.C.A. 26.
[19][2004] VSCA 35 at para [35]. This case does not discuss the issue of the seriousness of the offending.
Taking into account all relevant matters including aggravation and mitigation, in my view the appellant should be sentenced as follows:
Count 1 – indecent act – six months;
Count 2 – incest – 12 months;
Count 3 – incest – five years;
Count 4 – incest – one year;
Count 5 – incest – four years;
Count 6 – incest – four years;
Count 7 – incest – two years;
Count 8 – incest – four years.
I now turn to the question of cumulation and concurrency. The provisions of Part 2A of the Sentencing Act apply.
By reason of s.6B(2), the appellant is a serious sexual offender because of his convictions and sentence in respect of the first two counts. It follows that ss.6D, 6E and 6F apply to this sentencing process for Counts 3 to 8. Section 6D requires the Court, in determining the length of the sentence when sentencing a serious sexual offender for a relevant offence, to have regard to the protection of the community from the offender as the principal purpose for which the sentence is imposed. I have had regard to that question, but in light of the appellant’s state of health it is my opinion that the sentences on Counts 3 to 8 inclusive should not be lengthened because of any concern relating to the protection of the community. Indeed, irrespective of the health of the appellant, I am not persuaded that the community is in need of protection from him.
Section 6E requires that every term of imprisonment must be served cumulatively in respect of sentences of imprisonment imposed, so that the prima facie rule is that the sentences, being Counts 3 to 8 (inclusive) should be served cumulatively. However, the Court may direct otherwise and in my opinion, in all the circumstances of this case, the application of the prima facie rule is inappropriate and would result in a disproportionate sentence. Accordingly, I would be prepared to direct that the sentences not be served cumulatively as required by s.6E. However, that is not the end of the exercise. The general principles relating to cumulation apply to the sentencing exercise. In my opinion Count 8 is an offence of a somewhat separate nature because of the failure of the appellant to use a condom which resulted in the pregnancy and his conduct was irresponsible, careless and callous. In my opinion, one year of the four years should be cumulative upon Count 3.
This results in a total effective sentence of six years imprisonment and in my view the period during which the appellant is ineligible for parole should be fixed at three years. It will be necessary to make a declaration that the period which the appellant has now served as pre-sentence detention be taken into account. Further, it will be necessary to enter in the records of the Court that the appellant has been sentenced as a serious offender in respect of Counts 3 to 8 – see s.6F(1).
The result of this appeal means that the appellant will not be released and, subject to what I next say, he most certainly will die in prison.
As I have stated, evidence has been placed before the Court that the appellant’s two sons wish to have contact with him in the days leading to his death. The question of the appellant being released prior to his death to enable him to die in surroundings with his family and friends is properly a matter for the Executive and not for this court. I draw attention to the provisions of s.107 of the Sentencing Act 1991, which deals with release by the Governor in the exercise of the royal prerogative of mercy, and also s.57 of the Corrections Act 1986, which empowers the Secretary to the Department of Justice to issue custodial community permits. I refer in particular sub-s.(4). I express no opinion whether or not the latter provisions would apply to the situation of the appellant. I merely note the statutory provisions and observe that it may be appropriate in all the circumstances for the appellant to be released from gaol to spend his last days with his family and friends.
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