R v RGG

[2008] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 431 of 2006

THE QUEEN

v

RGG

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JUDGES:	ASHLEY and NEAVE JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 May 2008
DATE OF JUDGMENT:	6 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 94

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CRIMINAL LAW — Sentence — Appeal against total effective sentence of eleven years and two months’ imprisonment with non-parole period of eight years for two counts of sexual penetration of a child under 16 years, one count of indecent assault, and one count of attempted sexual penetration of a child under 16 years — Representative counts — Identifying conduct represented — Manifestly excessive — Mitigatory circumstances — Relevance of age and ill-health of accused — Appeal allowed — Appellant re-sentenced to total effective sentence of eight years and three months’ imprisonment with non-parole period of five years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Victoria Legal Aid

ASHLEY JA:

1. I have had the advantage of reading the reasons of Lasry AJA in draft.  I agree with his Honour that the appeal should be allowed, and that the appellant should be re-sentenced as his Honour proposes.

1. I agree with Lasry AJA that the sentence imposed below was manifestly excessive.  That is enough to dispose of the matter, and I need not say anything about the contention of specific error raised by ground 2.

1. Whilst it is unnecessary to decide how the manifestly excessive sentence came about, the likely explanation is that the appellant’s personal circumstances (of which his age at time of sentence was only one aspect) and his plea of guilty (together with other evidence of remorse) were accorded insufficient weight in his favour in the sentencing synthesis.  There is an ever-present danger, I think, when a person is to be sentenced for child sexual offences, that lip service and nothing more will be paid to matters going in mitigation.  In this case, there were substantial mitigatory circumstances.

1. There is one other matter about which I wish to say something.  I expressly agree with Lasry AJA that when a person is to be sentenced on a representative count, the sentencing judge should record what has been agreed to be the conduct of which the count is representative and the approximate frequency of such conduct over a specified period of time.

1. The consequences for sentencing purposes of a count being a representative count were extensively discussed in R v SBL.[1]  Whether or not the duration and circumstances of conduct represented by a count should be described as an aggravating circumstance,[2] absence of a potential circumstance of mitigation and consideration of an offence ‘in its full circumstantial context’ is at least likely to lead to a heavier sentence than would otherwise be passed.

[1][1999] 1 VR 706.

[2]R v SBL, Ibid 724–725, [65] (Ormiston JA); 725–726 [69]–[70] (Batt JA).

1. In every case, a sentencing judge must establish the sentencing facts.  A person sentenced, and a court on appeal, must know the sentencing facts upon which the judge proceeded.  If, on a guilty plea to a representative count, a sentencing judge recites a prosecutor’s statement that conduct described in that count was the first instance of such conduct, and that the same was committed with unstated frequency over a certain period of time, how can either the offender or an appeal court know if the judge sentenced the offender on the footing that the conduct took place daily, weekly, monthly, or with some other and what frequency; or, which would arguably be worse, that the judge sentenced the offender without going behind the prosecutor’s bland and non-specific statement?   

1. A similar problem would attend a judge’s description, borrowed from the prosecutor, that impugned conduct took place ‘regularly’.  It is a commonplace that, an account having been given of recurrent conduct, one person will describe it as having occurred ‘regularly’, whilst another person will describe it as having occurred ‘infrequently’ or ‘sporadically’.

1. In the present case, the sentencing judge made use of non-specific language borrowed from the prosecutor’s address on the plea hearing.  Her Honour said that Count 1 was ‘representative of a continuing course of conduct’;  and she described Count 2 as being ‘representative of a course of conduct which continued over the next four years’. The adequacy and the meaning of those findings might have been squarely challenged.  Had such a challenge been mounted, as at present advised I would have concluded at least that the sentencing remarks were unacceptably opaque.[3]

   [3]The judge said that in sentencing the appellant she had paid regard to the ‘overall period of time over which [the] offences were carried out’.  That took the matter no further.

NEAVE JA:

1. I agree with the conclusion reached by Lasry AJA and with the sentencing

disposition he proposes.  I wish only to make a brief comment on the second ground of appeal.

1. In my opinion, her Honour did not make a specific sentencing error in saying that the offender’s ‘current state of health and … age are relevant mitigating factors,’ but that ‘in the circumstances they should be given only very modest weight in the context of otherwise extremely serious offending.’  While perhaps expressing herself imprecisely, I consider that her Honour meant simply that the nature and gravity of the offences were factors which required greater weight than the offender’s age and ill health, in synthesising the matters to be taken into account in sentencing him.  I consider that her Honour was well within the scope of her sentencing discretion in taking that view. 

1. Counsel for the appellant submitted that her Honour should not have relied on the Court’s remark in Bazley that the age of the offender ‘cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence’,[4] because in that case the offender had been convicted of very serious offences, including two counts of murder. 

   [4](1993) 65 A Crim R 154, 158.

1. While it is true that the offending in this case was not as grave as the offending in Bazley, it was nevertheless very serious.  The offender was a mature man who took advantage of the youth and vulnerability of both complainants by sexually abusing them, in circumstances where he was responsible for their care.  Counts 1 and 2 were representative of acts of sexual penetration which began when CAC, who suffered from epilepsy, was only 12.  The offending continued for four years.  Although particulars of the conduct said to be represented by each of these counts was not identified, it is clear that the offender was guilty of sustained sexual abuse of CAC.  This has had serious emotional and psychological consequences for her.  After the appellant stopped abusing CAC, he indecently assaulted her younger sister.  This was not a case where the offences had been

committed many years previously and the appellant had since rehabilitated himself.[5] 

[5]See the comments on this matter in R v MWH [2001] VSCA 196,[23]-[24].

1. However, while I do not consider that her Honour made a specific sentencing error, I agree with Lasry AJA, that the individual sentences on counts 1 and 2 were outside the range of sentences imposed for offending of this gravity and that the total effective sentence and non-parole period were manifestly excessive.  In reaching that view I have taken account of the other mitigating factors, particularly the appellant’s guilty plea, which relieved the complainants of the ordeal of giving evidence at trial. 

1. I have also taken account of the sentencing statistics which apply to these offences. In particular, I note that the median sentence of imprisonment for the offence of sexual penetration of a child aged 10 to 16 under the care, supervision or authority of the offender was two years and six months,[6] and the median total effective sentence of imprisonment for offenders sentenced for this offence was four years and six months.[7]

   [6]Sentencing Advisory Council, Sentencing Snapshot No 32:  Sentencing trends for sexual penetration of a child aged between 10 and 16 under the care, supervision or authority of the offender in the higher courts of Victoria, 2001-02 to 2005-06 (October 2007) 2. 

   [7]Ibid 3.  These statistics were, however, based on a limited number of cases.  For the offence of sexual penetration of a child under 16, the median principal sentence of imprisonment was two years, and the median total effective sentence of imprisonment was three years and three months:  See Sentencing Advisory Council, Sentencing Snapshot No 31:  Sentencing trends for sexual penetration of a child aged between 10 and 16 in the higher courts of Victoria, 2001-02 to 2005-06 (October 2007) 4–5. 

1. I would therefore also grant leave to appeal against the sentence, allow the appeal and re-sentence the appellant as Lasry AJA proposes.

LASRY AJA:

1. On 5 December 2006 the appellant appeared before the County Court on a presentment alleging two counts of sexual penetration of a child under 16,[8] one

count of indecent assault,[9] and one count of attempted sexual penetration of a child under 16.[10]  The appellant pleaded guilty to those counts.

[8]Crimes Act 1958 (Vic) s 45(1) and (2)(b) (maximum penalty 15 years’ imprisonment).

[9]Crimes Act 1958 (Vic) s 39 (maximum penalty 10 years’ imprisonment).

[10]Crimes Act 1958 (Vic) s 321P (maximum penalty 10 years’ imprisonment). The judge below was informed, however, that the maximum penalty was 5 years’ imprisonment.

1. On 13 December 2006, having heard a plea in mitigation, the sentencing judge sentenced the appellant as follows:

Count 1	being the representative count of digital sexual penetration of a child aged 10 to 16 under care -	4 years’ imprisonment
Count 2	being a representative count of penile sexual penetration of a child aged 10 to 16 under care -	8 years’ imprisonment
Count 3	indecent assault -	6 months’ imprisonment
Count 4	attempted sexual penetration of a child under 16 -	8 months’ imprisonment

1. Her Honour made orders in relation to cumulation of the sentences.  She ordered that 2 years of the sentence imposed under Count 1, 6 months of the sentence imposed under Count 3, and 8 months of the sentence imposed under Count 4 cumulate upon each other and upon the sentence imposed under Count 2.  The effect of those orders was that a total effective sentence of 11 years and 2 months’ imprisonment was imposed on the appellant with an order that he serve a minimum of 8 years before being eligible for release on parole.  Her Honour also made recommendations that the appellant be referred for assessment and treatment under any relevant sexual offender programs and for any ongoing medical conditions. 

1. Before this Court, counsel for the appellant made submissions in relation to the following three grounds of appeal:

Ground 1	That the individual sentences on Counts 1 and 2, the total effective sentence and the non‑parole period are each manifestly excessive.
Ground 2	The learned sentencing judge erred by giving inadequate weight to the evidence of the appellant’s age and ill‑health, by determining that ‘in the circumstances they should be given very modest weight in the context of otherwise extremely serious offending’.
Ground 3	The learned sentencing judge erred in her assessment of the impact of the offences on the victim CAC and in the weight given to specific deterrence by failing to take into account the fact that CAC had returned to live with the appellant over the previous five years.

1. It is appropriate to deal with the grounds of appeal in the same order that counsel argued them before us – ground 2, ground 3 and ground 1.  As I followed the argument, in effect, ground 2 became a particular of ground 1 as well as asserting specific error in the application of legal principle.  Ground 3 raised a particular issue which should be dealt with separately.  Before dealing with those grounds, it is necessary for me to summarise the circumstances of the appellant’s offending.

Circumstances of the Offending

1. The appellant is presently 73 years of age.  The presentment alleges conduct which began on 25 June 1996 which means at the time he was 61 years of age.  The victim of the offences alleged in Count 1 and Count 2, CAC, was born on 25 June 1984 and is therefore now 22 years of age, but was aged 12 at the time of these offences commenced.  She is the niece of the son of the appellant.   

1. CAC stayed with the appellant almost every weekend and on school holidays as a young child.  When she was in Grade 6 at school, it is alleged that the appellant began to touch her breasts and vagina over her clothes.  Towards the end of Grade 6 touching began in the same areas under the clothing.  This conduct was said to be the ‘lead up’ to the offending which is the subject of the two counts in the presentment concerning CAC. 

1. The appellant was alleged to have commenced to put his fingers into CAC’s vagina and the first such occasion on which that occurred is the subject matter of Count 1.  Count 1 is pleaded in the presentment on the basis that it is representative of a continuing course of conduct during the period of time referred to in the presentment.  Part of the context also appeared to involve allegations that the appellant would get the victim to kiss him passionately during this conduct. 

1. Count 2, also a representative count, refers specifically to an incident which occurred when the victim was 12 years of age and sitting on a couch watching television.  The appellant came into the room and fondled her and then positioned her so that she was sitting up in a position on the edge of the couch.  The appellant then knelt in front of her and inserted his penis into her vagina.  During the act he requested that he be able to ejaculate inside her and she said no although not really knowing what he was talking about.  He withdrew his penis and ejaculated onto her stomach.  This conduct is said to be representative of the continuing course of conduct that took place subsequently during the period in the presentment – ie between 25 June 1996 and 24 June 2000. 

1. At this point, it should be noted that in opening the plea before the sentencing judge, counsel then appearing for the Crown informed her Honour that, as to these two representative counts, each was representative of a continuing course of conduct during the period ‘averred in the presentment’.  In her reasons for sentence the sentencing judge repeated a similar form of words and so the particulars of the conduct said to be represented by each of those counts were not identified.  The sentencing judge appears not have supplemented what she was told in the prosecutor’s opening by referring to the depositions and identifying further detail in her reasons for sentence.  In R v Wright,[11] Nelson J noted that when the procedure of representative counts is adopted, ‘… there is nothing objectionable in the Court having regard to the whole picture presented by the accused’s conduct in determining the sentence appropriate to be passed upon the counts to which he pleads guilty’.  In approving the judgment of the Court in Wright, I consider this Court in R v SBL was both approving the practice of using representative counts and identifying the limits of the practice as was later pointed out, for example, in R v Jones,[12] where Charles JA contrasted the exercise of the sentencing discretion on representative counts with ‘rolled-up’ counts.  In my opinion, and here I accept a submission made on behalf of the appellant, when a sentence is imposed on a representative count it is appropriate and necessary for a sentencing judge to identify some level of detail of the conduct represented by the count on which sentence is to be passed so that the ‘whole picture’ can be seen.  That would at least involve an indication of the number of other incidents involved or at least the frequency of occurrence, and the identification of the similarity of the incidents represented to the one charged.  I will return to this topic under the ground of appeal concerning the complaint of a manifestly excessive sentence.

   [11](Unreported, Court of Criminal Appeal, 13 May 1974), discussed in R v SBL [1999] 1 VR 706, 723 (Ormiston JA).

   [12][2004] VSCA 68, [13].

1. The next victim who is the subject of Counts 3 and 4, DMG, was born in 1992 and at the time the incidents were reported she was 14 years of age.  She is also the niece of the appellant’s son and the sister of the previous victim to whom I have referred.  She would also stay with the appellant on occasions.  In early 2005 the appellant indecently assaulted her by touching her on the breasts and the vagina over her clothing.  That conduct refers to Count 3 and is not a representative count in relation to any other conduct. 

1. Count 4 concerns conduct on or about 10 January 2005 when DMG was sitting on a couch in the lounge and the appellant approached her, touching her on the vagina and breasts over her clothing.  He then kissed her and removed her pyjama pants.  He then placed himself on top of her and attempted to insert his penis into her vagina whilst at the same time licking her breasts.  After a minute or so the victim pushed the appellant away from her and stood up and put her pants back on.  The appellant is said to have then pushed her back on the couch at which point she began to cry and he then went to bed.  On the following morning he is alleged to have told her not to tell anyone about the incident.  This count, Count 4, is similarly not a representative count. 

1. In January 2006 the matters were brought to the attention of police and on 7 February 2006 the appellant was interviewed at the Ballarat Police Station and denied allegations of the sexual penetration of CAC.  In relation to DMG he made some admissions about touching her on top of her clothing in the area of the vagina.  He denied any suggestion that he had attempted to sexually penetrate her.  In relation to CAC, he said he had had sex with her when she was 17 years of age but otherwise appeared to deny the detail of the allegations. 

Ground 2 – Age and Ill-Health of the Appellant

1. Ground 2 asserts that inadequate weight was given to the appellant’s age and ill‑health and reference is made to the specific words used by the sentencing judge suggesting that these considerations should only be given ‘very modest weight’. 

1. Counsel on the plea relied on the submission that it was relevant to consider in sentencing the appellant whether he should be sentenced with at least the prospect or expectation that he might be able to lead some more useful life after his release.  As to ill health, counsel did not submit that imprisonment would aggravate the appellant’s health difficulties but rather that it would make the imprisonment more burdensome.  Obviously, reliance was placed on both of these factors in combination.

1. In her reasons for sentence, her Honour referred to the fact that the appellant was 72 years of age at the time of being sentenced for these offences (para 17).  She referred to documents which were produced on the appellant’s behalf concerning his health, to which I will turn in a moment, and she also specifically referred to back pain, hypertension and associated health problems from which the appellant suffered (para 19).  Her Honour also referred to the observation by Dr Sullivan, psychiatrist, that the appellant would satisfy the diagnostic criteria for adjustment disorder with depressed mood reflecting a mood disturbance related to his legal predicament (para 22), and to Dr Gibney’s report detailing the medication being taken for back pain, hypertension, fluid control and early left ventricular failure. 

1. Her Honour also noted that ‘Your current state of health and your age are relevant mitigating factors to take into account in your overall sentencing disposition.  However, in the circumstances they should be given only very modest weight in the context of otherwise extremely serious offending’.  That portion of her Honour’s sentencing remarks was footnoted by reference to the judgment of the Full Court of this Court in R v Bazley.[13] 

   [13][1993] 65 A Crim R 154, particularly 158.

1. The documentary evidence which was exhibited before her Honour revealed the following: 

1That in 1990 the appellant had suffered a workplace injury in which his lumbar spine was jarred.  The condition was inoperable and he thereafter took anti‑inflammatory drugs and paracetamol and narcotic medications.

2He had a history of high blood pressure for which he was being treated with medication.  He had a reported episode of pneumonia in recent times. 

3He suffered from fluid accumulation for which medication had been prescribed.

4He was diagnosed as suffering from an adjustment disorder with depressed mood as set out in DSM-IV.  He does not require antidepressant medication and the symptoms were expected to resolve after the resolution of the legal proceedings. 

1. The submission made on behalf of the appellant before us was that imprisonment would be a greater burden on him by reason of his age and the difficulties with his health that were outlined before her Honour.  The appellant complains of the conclusion that ‘only very modest weight’ should be given to these factors. 

1. In R v Van Boxtel,[14] the question of the impact of an offender’s ill‑health on the duration of a prison term was referred to in the judgment of Callaway JA who in turn referred to the observations of King CJ in R v Smith,[15] where in a judgment in which Cox and O’Loughlin JJ concurred, his Honour said:

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender.  The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process.  Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health.  It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners.  Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.[16]

[14](2005) 11 VR 258.

[15](1987) 44 SASR 587.

[16]Ibid 589.

1. The second limb of that formulation – ie that prison would have an adverse effect on the appellant’s health – was not relied upon before the sentencing judge or before us.  The appellant also says that in her conclusions about the weight to be given to the age and state of health of the appellant, the sentencing judge relied on the judgment of the Court of Criminal Appeal in this State in R v Bazley,[17] and submits that reliance was in error.  Counsel for the appellant accepts that the principle identified in Bazley was relevant for her Honour to refer to but that its application is limited by the substantial difference between the facts of that case – the contract killing of Donald McKay and two other drug traffickers on behalf of a mafia syndicate – and the facts of this case, albeit serious offending. 

   [17](1993) 65 A Crim R 154.

1. In Bazley the judge fixing the minimum term had observed that but for the respondent’s age a very substantial term would have been imposed on him.  His Honour also found that the respondent was suffering from back pain caused by a degenerative spinal condition which was likely to worsen although relief could be gained from medication.  The sentencing judge in the present case relied in particular on the observations of the Court to the effect that the question which arose was whether it was properly open to give the respondent’s age the weight which the judge assigned to it.[18]  The Court (Crockett, Hampel and Smith JJ) said:

The age of an offender is no doubt a relevant sentencing consideration.  It may in some cases be of significance.  But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.

[18]Ibid 158.

1. On this point, counsel for the Director of Public Prosecutions placed reliance on the judgment of Allen J in the New South Wales Court of Criminal Appeal in R v Holyoak.[19]In that case the appellant was 75 years of age at the time of sentence and was tried and convicted of two counts of indecent assault on a child under his care.  The sentencing judge had made observations about the age of an offender not being a ‘… licence to commit sexual offences, nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years’.[20]  Allen J  then observed:[21]

The real question, as I see it, is whether the objective gravity of the offences in the present case were such that it was within the proper bounds of judicial discretion for his Honour to impose the sentence that he did notwithstanding what, having regard to the appellant’s age, the consequences well might be.  It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged [sic] of the offender, that he well may spend the whole of his remaining life in custody.

[19](1995) 82 A Crim R 502.

[20]Ibid 507.

[21]Ibid.

1. His Honour then went on (my emphasis follows):[22]

Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger.  That is material to the appropriate length of the full-time custody.  It does not make proportionality irrelevant.  Likewise, the effect of the sentence upon general deterrence is not irrelevant.  What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free.  These considerations weigh heavily upon me.  So objectively horrendous, however, were the crimes for which the appellant fell to be sentenced, particularly considering the breach of trust which it involved, that I find myself unable to say that, assuming that all other matters he took into account were appropriate to be so taken, the severity of the sentences imposed is indicative that his Honour failed to give due weight to the significance of the plaintiff’s age.

[22]Ibid 507-8.

1. His Honour thus recognises, at a minimum, that advanced age will render the time spent in prison by such a person more onerous.  Counsel for the Director submitted before us that those observations demonstrate that it cannot be said that her Honour erred in law in the way she dealt with age in this case.  The prospect of the appellant in this case never walking free from prison must implicitly have been taken into account by her Honour, the Director contends, although she does not refer to it in terms. 

1. However, the essence of the submission made before us on behalf of the appellant is that whilst the reference by the sentencing judge to correct statements of principle in cases such as Bazley is unexceptional, the application of those principles must depend on the facts of the individual case, and the extent to which the effect on the sentence of relevant mitigatory factors might be diminished will depend on those facts.  This case is not, it is submitted, one where the statement of this Court in R v Kerbatieh would apply.[23]  I agree with that submission and whilst her Honour referred to statements of principle which were relevant to consider, she appears not to have dealt with the significant difference in the nature of the offending in this case from that in, for example, Bazley and has consequently not given these mitigatory factors appropriate weight.  Consistently with the observation of the Court in Bazley, I do think this is a case where the age of the offender is of significance, and in my opinion when applied to this case, the extracted principles do not support the conclusion reached by her Honour that the weight to be given to the appellant’s age  and ill-health be ‘only very modest’.  It follows, therefore, that this ground of appeal is made out.  In addition, these considerations become a particular of the ground of appeal asserting manifest excess with which I deal below.  

   [23](2005) 155 A Crim R 367, 393 (Chernov and Nettle JJA): ‘In the third place, where offences are very grave and denunciation and deterrence and the protection of the community are the principal sentencing considerations, as they are here, mitigating aspects of offending must play a lesser role in the formulation of the appropriate sentencing disposition. As the judge rightly said, it is difficult to overstate the seriousness of these offences given that the appellant behaved as a sexual predator towards the three young complainants and subjected two of them to an extended and terrifying ordeal.’

Ground 3 – Impact of the Offences on CAC

1. This ground is able to be shortly disposed of.  In the course of her reasons for sentence the sentencing judge observed in relation to both victims that the appellant has  ‘… destroyed their innocence and seriously threatened their capacity to develop positive and trusting relationships with males of their own age.  The contents of each of the victim impact statements attests to the profound and ongoing psychological damage suffered by each of these young ladies.’  In relation to specific deterrence, her Honour went on to observe that it remained ‘an important objective in the sentencing disposition’.  During the course of the plea, her Honour was informed that CAC had continued living with the appellant at his premises and that had been the case for the preceding five years.  That assertion was repeated later in counsel’s submissions and again it was put that the appellant still cared for her and was concerned for her welfare.  

1. By his ground of appeal, the appellant relies on the fact that the sentencing judge was informed of these matters.  Before us, counsel for the appellant submitted that these facts had ‘some bearing on the level of victim impact’ not because it demonstrates forgiveness but because it shows that the victim was able to continue being supported by the appellant.  It is submitted that by failing to take these facts into account in her assessment of the impact of the offences on CAC and in the weight to be given to specific deterrence, her Honour fell into error or, at least, that the specific information about CAC’s living arrangements required the sentencing judge to treat the victim impact statements with care.

1. Apart from being given the information to which I have referred, the sentencing judge was told nothing else.  She was not, for example, informed that there had been some form of reconciliation between CAC and the appellant or that CAC had in some way determined to forgive the appellant for the offences he had committed or that she wished the court to impose a merciful sentence on him.  Her Honour may well have wondered how the present arrangements came to exist but she was given no help by way of submission as to what, if anything, she should make of the information.  There was no reason for her Honour’s assessment of the impact of the offences on CAC to be diminished.  That being the case then, and before us, this ground of appeal must fail.

Manifestly Excessive Sentence

1. Ground 1 of this appellant asserts that the individual sentences on Counts 1 and 2, the total effective sentence, and the non‑parole period, are each manifestly excessive.  I am disposed to uphold this ground of appeal.

1. In his submissions before us, counsel for the Director said that he conceded the sentences were ‘stern’ but submitted that the protection of children is paramount and the offending must be met with ‘condign’ punishment.  He went on to submit that the sentencing judge recognised the seriousness of the offences and sought to give effect to that recognition by the imposition of ‘severe’ penalties.

1. The appellant came to be sentenced in the following context.  He was a 72 year old man who had led a blameless life, save for a very few matters which he identified, until these offences commenced in his early 60s.  The record of interview contained denials by the appellant as to the offending alleged to have occurred concerning CAC when she was under the age of 16 years, and some admissions in relation to touching DMG.  He, however, denied attempting to sexually penetrate DMG.  Nonetheless, the appellant then pleaded guilty in relation to charges concerning both victims thus avoiding the need for both a committal and trial.  This plea was indicated before committal in respect of representative counts alleged to have occurred over a four year period.  As I have earlier described, the appellant submits that a very significant discount should be given for a plea of guilty to representative counts where the elaboration of the identified represented conduct is lacking. 

1. In her Honour’s reasons for sentence, she referred to the plea of guilty coming ‘at a relatively early stage’ and concluded that the appellant was ‘entitled to a significant discount on penalty’.  With respect, I am unable to see how that ‘significant discount’ is evident in the sentence she imposed.  The picture is made more unsatisfactory because her Honour made no findings as to the frequency of the conduct of which Counts 1 and 2 were representative.

1. In considering the weight to be given to mitigatory factors, it is appropriate to note that the offending in this case had not occurred in the distant past as it had, for example, in R v DD (No 2),[24] where the offences had occurred 30 years earlier without further offending in the intervening years.  However, the evidence indicated that the commencement of this offending followed upon the death of the appellant’s de facto wife although he did not seek to rely on this as any form of excuse.  The evidence also indicated a degree of remorse identified by his early plea of guilty and expressions to that effect.  As counsel for the appellant pointed out during the plea, in a recorded pretext phone conversation the appellant expressed his ‘deep’ sorrow for what he had done and the desire to be able to do something about it and then expressed the view that he deserved to go to gaol.

   [24][2008] VSCA 15.

1. Although her Honour was urged to conclude that there was genuine remorse on the part of the appellant, she made no such finding.  In my opinion there was evidence of remorse apart from the plea of guilty which her Honour would have been justified in concluding was genuine. 

1. Counsel for the appellant before us then referred to the other more tangible features of the appellant’s background – his strong employment history and his age and ill-health.  So far as the latter is concerned, I have already expressed the view that those factors were deserving of more than ‘very modest’ weight.  There is a genuinely realistic prospect that the appellant may die in gaol and whilst that factor would not prevent an appropriately harsh sentence being imposed, I am unable to accept that such a possibility should attract only modest weight.

1. It is also the case that evidence suggested that despite his advanced age his prospects for rehabilitation were good and the risk of re-offending, on the psychiatric evidence, was low.

1. Finally, as so often occurs, we were presented with a comparative analysis of similar offending for the purpose of establishing that the sentence imposed by her Honour, particularly on Counts 1 and 2, and the consequent total effective sentence were at the highest end of such ‘scale’ as there is.  Counsel for the Director does not contend otherwise.

1. In my opinion, by analysis of the circumstances of the offending and its effect and those of the appellant, it becomes apparent that this sentence is manifestly excessive.  I would allow the appeal and re-sentence the appellant as follows:

Count 1	3 years’ imprisonment
Count 2	5 years’ imprisonment
Count 3	6 months’ imprisonment
Count 4	2 years’ imprisonment

1. On Counts 3 and 4, the appellant must be sentenced as a serious sexual offender and under s 6E of the Sentencing Act 1991 (Vic), the presumption of cumulation applies. However, it is unnecessary to impose a sentence longer than that which is proportionate to the gravity of these offences. I would therefore order that two years of the sentence on Count 1 be cumulated on the sentence of Count 2 and that one year of the sentence on Count 4, and 3 months of the sentence on Count 3 be served concurrently with the sentence on Count 2. That results in a total effective sentence of 8 years and 3 months. I would fix a period of 5 years to be served before the appellant is eligible for release on parole.

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