R v Wooller

[1998] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 89 of 1998

THE QUEEN

v

MARTIN JOHN WOOLLER

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JUDGES:	WINNEKE, A.C.J., BROOKING and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 1998
DATE OF JUDGMENT:	12 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 75

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Criminal law - Sentence - Series of inhuman and damaging assaults by de facto stepfather on 11-year-old boy over two-month period - Four counts of intentionally causing serious injury and eight counts of intentionally causing injury - Total sentence of seven years two months with minimum of five years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C.	Tyler Tipping & Woods

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WINNEKE, A.C.J. (delivering the judgment of the Court):

1. In this case the applicant applies for leave to appeal against sentence imposed in the County Court at Morwell on 8 April 1998. The applicant pleaded guilty to 15 counts of various offences, all involving treatment of an inhuman and degrading kind against an eleven-year-old boy who was in the applicant's care and custody, being the child of a woman with whom the applicant was living in a de facto relationship. These offences, which occurred over a two-month period between June and August 1997, comprised four counts of intentionally causing serious injury, eight counts of intentionally causing injury, one count of recklessly causing injury, one count of threat to kill and one count of false imprisonment.

2. The learned judge imposed individual sentences in respect of each offence, none of which exceeded two years' imprisonment. Partial cumulation orders were made in respect of twelve of the individual sentences imposed and, as a result, the total effective sentence imposed was seven years and two months and a minimum term of five years was ordered to be served before the applicant became eligible for parole.

3. The primary ground of application for leave to appeal is that the sentences are manifestly excessive. In essence it is argued that the judge's discretion has miscarried in his orders for cumulation and that, as a result, he has arrived at a total effective sentence which is manifestly disproportionate to the gravity of the applicant's conduct.

4. The relevant facts which constitute the offences to which the applicant pleaded guilty are adequately set out, we think, in the sentencing remarks of the learned judge which are before this Court. They have been fully canvassed in the course of argument before us and no purpose is to be served in taking the time to rehearse them. Suffice it to say that they reveal a course of conduct which was violent, almost inhuman conduct, over a period of two months, perpetrated by the 30-year-old applicant against a defenceless and terrified eleven-year-old boy. The conduct, which is said to have been occasioned by some pre-pubescent behaviour on the part of the child, was unrelenting and left its victim not only physically scarred in his genital region but psychologically scarred, probably for the rest of his life. His Honour, in our view correctly, described the conduct as "horrific" and "bordering on torture", accompanied by "sinister aspects of concealment". The photos produced to this Court this morning are themselves eloquent testimony of the suffering to which the victim was exposed.

5. The application for leave to appeal, as we have said, is founded upon the primary argument that the sentence imposed is so high that it bespeaks error in the exercise of the judge's discretion. The Court has listened with care to all the arguments which have been put to it in support of this ground of appeal, if we might say so, with his usual clarity, by Mr Tehan. At the end of the day we remain unpersuaded that his Honour's discretion has miscarried as to the individual sentences which he fixed or the periods of cumulation which he ordered. The circumstances in which the offences occurred were not disputed upon the plea. Explanations were put forward based on drug addiction and personality disorders stemming from a dysfunctional lifestyle. Mr Tehan laid emphasis on factors personal to the applicant in support of his submissions, but all of the matters relied upon were before his Honour and taken into account by him. It is our view that his Honour was correct to give priority to aspects of both general and specific deterrence, notwithstanding the personality defects upon which Mr Tehan laid emphasis, none of which, in our view, can reduce the impact of deterrence in this case. Nor does it matter whether prevalence of violence is to be found in the conduct by de facto stepfathers towards their partners' children or, more generally, by persons to whom young children can expect to look for care and protection. His Honour, we think, cannot be criticised for observing that abuse of young children by those in whom their trust and confidence is placed is all too commonly seen by the courts and that perpetrators can expect condign punishment for such abuse.

6. Maltreatment of young children by those who have responsibility for their care is clearly a social evil which has been recognised both by courts and the Legislature in this State. It is not a matter in respect of which specific evidence is required, any more than courts require evidence of the destructive harm caused by drug-trafficking or armed robbery. Throughout the plea the Crown made no secret of the fact that it was calling for a substantial penalty in respect of which deterrence was to be the primary factor. Nothing which his Honour said suggests any unfairness to the applicant in this regard.

7. The overall sentence is the product of twelve serious assaults over a period of two months. Each assault was accompanied by circumstances which, in our view, entitled the judge to order cumulation. No complaint is now made against the individual sentences imposed, but only about the amounts of cumulation ordered. This, however, it must be remembered, was an unusual case which gave rise to an unusual presentment which called for partial cumulation of sentences, and we cannot find appellable error in the amounts of cumulation ordered. Nor do we see the total sentence produced, although it may be a high one, as outside the range available to the learned judge as a sentence proportionate to the gravity of the total conduct of the applicant.

8. In those circumstances this Court has no power to interfere with his Honour's discretion, and the application will be accordingly dismissed.