R v Wright
[2009] VSCA 27
•27 February 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 751 of 2007
| THE QUEEN |
| v |
| ROBERT WRIGHT |
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JUDGES: | MAXWELL P, NEAVE and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 February 2009 | |
DATE OF JUDGMENT: | 27 February 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 27 | |
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CRIMINAL LAW – Appeal – Sentencing – Multiple counts of indecent assault upon males under the age of 16 – Significant delay between commission of offences and sentencing – Offending over a seven year period – Appellant had already served terms of imprisonment for like offending over the same period – Appellant’s exceptional efforts to rehabilitate himself – Whether sentencing judge erred in application of principle of totality – Whether sentencing judge took proper account of rehabilitation – Whether sentence manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| Appellant | Mr G M Hughan | Victoria Legal Aid |
| Respondent | Mr S Cooper | Mr S Ward, Acting Solicitor for Public Prosecutions |
MAXWELL P
NEAVE JA
WEINBERG JA:
The appellant, Robert Wright (formerly known as Robert Richardson), pleaded guilty in the County Court to 12 counts of indecent assault upon three males under the age of 16. Six of the counts were representative in nature.[1]
[1]Counts 1, 3, 4, 6, 11 and 12.
At the time of the offending, the maximum period of imprisonment for each of these offences was five years. After hearing a plea in mitigation the judge sentenced the appellant to 12 months’ imprisonment on each count. Because of prior convictions for similar offences, the appellant was required to be sentenced as a serious sexual offender on each count. His Honour ordered that four months of each of the terms of imprisonment imposed on counts 2-12 be served cumulatively upon the sentence imposed on count 1. This amounted to a total effective sentence of four years and eight months’ imprisonment. His Honour fixed a non-parole period of three years. The appellant was registered under s 6 of the Sex Offenders Registration Act 2004 and ordered to report for life. He now appeals against that sentence.
The circumstances of the offending and of the offender
The offences against the three complainants occurred in similar circumstances over the period from September 1975 to April 1982. The victims, LW, GM and AS, were St John’s Ambulance cadets, aged between 12 and 16. During the period of the offending, the appellant was aged between 26 and 32 years. He was the leader of the St John’s Ambulance division to which the complainants belonged. At the time of sentencing, all three complainants were in their early to mid 40s, and the appellant was 57.
It is unnecessary to describe each offence in detail. The offender’s acts involved genital fondling in a range of situations (including at camps, while driving a car, in the shower, and in bed). The offending against the victim LW also included the appellant masturbating him and, on one occasion, requiring LW to masturbate the appellant. The offending against AS included the appellant masturbating him to ejaculation and requiring AS to masturbate the appellant. That conduct continued beyond AS’s 16th birthday, however the period to which the offences related ended on that day.
Regrettably, the complainants were not the only victims of the appellant’s sexual offending. The appellant had previously been sentenced (in 1994, 1998 and 2000) for similar offences against 15 other young boys. The earliest of these offences occurred over a period between January 1973 and March 1975 and the most recent occurred between February and July 1993. The offences which led to the sentences under appeal were committed over the same period as the offences for which he was previously sentenced.
The following summary of the earlier convictions and sentences is drawn from the reasons of the sentencing judge:
On 22 March 1994 you appeared for sentence before his Honour Judge Howse in the County Court at Melbourne. You had pleaded guilty to 29 counts of indecent assault, three counts of gross indecency, four counts of an indecent act with a child under 16, three counts of an indecent act with or in the presence of a 16 year old child and two counts of sexual penetration [of] a 16 year old child. 19 of those counts were representative counts and as the learned sentencing judge was to observe in his reasons for sentence, in reality the number of your then crimes was in the order of approximately 100.
Your then victims were 12 boys aged between 11 and 16 years. It would seem that you came into contact with that group of boys in your capacity as a leader of a local scout group. In respect of such offences you were sentenced to a total effective sentence of ten years’ imprisonment with a non parole period fixed at nine years. This court has read and considered his Honour’s reasons for sentence.
During the currency of your imprisonment, you appeared before courts in this State on two further occasions charged with like offences which had occurred in the periods prior to your incarceration. On 12 October 1998 you appeared in the County Court at Melbourne before his Honour Judge Smith. You had pleaded guilty to four counts of indecent assault on two young boys in the 12 to 14 year old age group. It would seem that you had contact with these young boys in your capacity as [superintendent] of a local St John’s Ambulance Brigade. Your victims were cadets in that organisation at the relevant time.
In his sentencing remarks his Honour noted that you had pleaded guilty to each of the four counts at the earliest opportunity and that you had made full admissions to the investigating police. Indeed in respect of one of the victims, his Honour made the observation that it was only your admissions made during the police record of interview that enabled the Crown to present evidence against you.
At the time of sentencing you were actively engaged in rehabilitation programs within the prison sentencing. In respect of each of the four counts, his Honour imposed a sentence of nine months’ imprisonment with no direction as to cumulation.
On 19 June 2000 you appeared before the Magistrates’ Court at Ararat on eight charges of indecent assault on a young boy. The learned magistrate sentenced you to a total effective sentence of nine months’ imprisonment, such period of imprisonment to be served concurrently with the sentence then being served by you. The victim in that case was another St John’s Ambulance cadet.[2]
[2]Reasons [3]-[8].
The appellant was released on parole on 27 February 2003 after serving nine years’ imprisonment for the offences for which he had been sentenced by Judge Howse. His total effective sentence of 10 years expired a year later.
At the plea hearing relating to the sentences under appeal, the appellant relied on reports and references setting out his efforts to rehabilitate himself, both during and after his imprisonment. Whilst in prison, he completed both an introductory, and a level three, intensive sex offender treatment program. In a report prepared by two therapists and the co-ordinator of the Wimmera Treatment Unit at Ararat Prison, prior to his release on parole, his progress in the Level 3 Intensive Sex Offender Program was described as follows:
By the end of the program, [Mr Wright] had demonstrated his ability to readily apply many of the concepts and skills to himself and had developed a greater sense of self and a more balanced outlook on his future in terms of adhering to an offence-free lifestyle.
The report noted that Mr Wright had recognised a large number of cognitive distortions which had influenced his offending. It said that he ‘recognised these as distorted beliefs and did not show evidence of adherence.’[3] Of particular relevance was this statement in the report:
Mr Wright has developed an excellent relapse prevention package which is well balanced and thorough in its application. The risk factors identified were appropriately divided up into thoughts, feelings, behaviours and situations … Similarly, the strategies he identified to deal with these were broad-ranging, incorporating both cognitive and behavioural methods.
The report recommended that if the appellant were granted parole, he should complete the sex offender maintenance program.
[3]See generally, S Maruna and R Mann, ‘A fundamental attribution error? Rethinking cognitive distortions’ (2006) 11 Legal and Criminological Psychology 155.
The appellant began to participate in that program in May 2003. In his sentencing remarks, the sentencing judge referred to the Corrections Victoria (or ‘CORE’) report dated 17 July 2003, which stated:
There is enough evidence to suggest that Mr Wright is making concerted efforts to adhere to the conditions of his Parole, hence decreasing his risk status. The writer is however mindful of the continual need to be vigilant and to monitor closely any indications that Mr Wright has re-entered his offence cycle.
In addition to his participation in the above programs, the appellant underwent psychological treatment which he arranged privately following his release from prison. Mr Michael Gathercole, a psychologist who had previously seen the appellant in the Wimmera Treatment Unit, also worked with him after his release. In a report dated 16 August 2005, he said that :
Robert openly acknowledges that he has an extensive offence history and that his past behaviour is clearly that of a paedophile. He also accepts that his past behaviour does place him in a moderate risk category of re-offending and that he has a high and ongoing responsibility to monitor his own thoughts and behaviours.
Mr Gathercole considered that the appellant had ‘displayed a clear commitment to maintaining an offence-free lifestyle’. Ms Sarah Noakes, a counsellor/psychologist at a community health centre, reported that the appellant had attended monthly sessions and was ‘motivated to focus on how he monitors his relapse prevention plan beyond any statutory supervision period’.
The sentencing judge ordered a pre-sentence report, which was prepared by Dr Richard Keuneman, Senior Psychiatry Registrar at the Victorian Institute of Forensic Mental Health. In a report dated 9 May 2007, Dr Keuneman stated:
During and since a previous 10 year sentence, Mr Wright appears to have engaged over significant periods of time with appropriate treatment and rehabilitation programmes and ventures, and has persisted with ongoing generic counselling over the past 3 years beyond periods mandated by previous orders.
…
In summary, I would feel that given the nature and length of time of offending, Mr Wright is likely on clinical and actuarial grounds to present as a moderate risk of re-offending … This risk is likely to be reduced by measures which seek to maintain those gains he is already likely to have made (such as by way of active participation in sex offender programmes and ongoing counselling).
Dr Keuneman recommended that the appellant continue to engage in psychological work and stated that ‘[s]uch work may be possible in either a custodial or non-custodial setting, however the benefit of already-established continuity and engagement with clinicians would be lacking in a custodial setting’.
The sentencing judge was also provided with letters of support from associates who were part of a support group to prevent the appellant from re-offending following his release from prison. These letters indicated that the appellant was making a serious effort to avoid re-offending, and that he had been diligent in his attempts to avoid occasions where young people were likely to be present.
Among those testimonials was a letter from Father Chris Archer, Parish Priest of the Anglican Parish of Stawell. Father Archer said that, while the appellant avoided situations where others might be perceived to be in danger, he did not exclude himself from the community. He went on to state his belief that ‘Robert is genuine about his reformation, and that he is, and will continue to, actively [seek] to put his past behind him and become a useful member of our society’.
Grounds of appeal
The grounds of appeal on which the appellant relies are as follows:
1.The sentencing judge erred in the application of the principle of totality to the appellant’s circumstances.
2. The sentencing judge gave insufficient weight to the delay between the commission of the offences and the sentencing of the appellant, having regard to:
a.the total effective sentence imposed on the appellant by Judge Howse on 22 March 1994;
b. the appellant’s successful completion of parole granted pursuant to that sentence; and
c. the appellant’s rehabilitation and avoidance of circumstances in which he might be at risk of re-offending.
3. The sentencing judge gave insufficient weight to the appellant’s pleas of guilty.
4. The individual sentences imposed, orders for cumulation made and non-parole period fixed are manifestly excessive in all the circumstances.
5. In light of fresh evidence to be adduced, that the appellant suffers from a significant illness, the sentences imposed are inappropriate and excessive.
Submissions of counsel
With the exception of ground 5, relating to the admission of fresh evidence, the grounds of appeal are closely inter-related. While grounds 1-3 complain of specific error, they may also be regarded as particulars of the complaint of manifest excess contained in ground 4. For that reason we discuss counsel’s submissions on the first four grounds together.
So far as ground 1 is concerned, it was submitted on behalf of the appellant that the individual sentences of 12 months’ imprisonment, the total effective sentence of four years and eight months’ imprisonment, and the non-parole period of three years fixed by his Honour in relation to the present offending were all disproportionate to the appellant’s criminality.
During the course of argument counsel for the appellant retreated from that position, and conceded that the individual sentences imposed were themselves well within the range for offences of this nature. That concession was rightly made. He submitted, however, that in fixing the total effective sentence, and the non-parole period, his Honour failed to accord proper weight to the totality principle. It was argued that the sentencing judge had failed to recognise that the combined effect of these sentences and those previously imposed by Judge Howse was that Mr Wright would serve a sentence, notionally at least, of 14 years and eight months, with a non-parole period of 12 years.
Alternatively, it was submitted, even if his Honour did have regard to the totality principle, the total effective sentence imposed and the non-parole period fixed showed that he must have given that principle insufficient weight. It was submitted that if the appellant had been sentenced for all of the offences at the one time, he would not have received a combined total effective sentence of 14 years and eight months’ imprisonment. Nor would he have faced a combined non-parole period of 12 years.
Counsel submitted that, because the present offences were committed during the same period as the offences for which the appellant was sentenced in 1994, the totality principle ought to be given very considerable weight. Failure to do so in cases involving sexual offences committed many years previously could lead to injustice. An offender who was sentenced for offences committed long ago would run the risk that if other victims from the same period made complaints after he had served the sentences for the earlier offences, he would be disproportionately punished for his criminal behaviour.
Counsel submitted that ground 1 was reinforced by ground 2. The appellant was charged on summons with the present offences in July 2005. Having regard to the history of the proceedings, it could not be contended that his Honour should have given weight to the delay which occurred between 2005 and 2007, when the appellant was finally sentenced. Rather, it was submitted that his Honour should have given greater weight to the efforts which the appellant had made to rehabilitate himself during that two year period.
Ultimately, the primary submission advanced on behalf of the appellant was that the three year non-parole period fixed by the sentencing judge in relation to the present offences was excessive, having regard to the nine years which he had earlier served for very similar offences committed at about the same time. The nine year non-parole period fixed by Judge Howse in 1994 reflected his Honour’s view at that time that the appellant had very poor prospects of rehabilitation, and that he was likely to be a continuing danger to children. Later events had shown that this assessment of the appellant’s risk of re-offending was no longer apposite.
It was submitted that the appellant’s efforts to rehabilitate himself after his release from prison should have been given much greater weight by the sentencing judge when he applied the totality principle in this case. Neither the total effective sentence nor the non-parole period could be justified having regard to the evidence that the appellant’s risk of re-offending was now assessed as ‘slightly lower than moderate’.
It was also submitted that the sentencing judge had made a specific sentencing error in dealing with the appellant’s prospects of rehabilitation. In support of that submission counsel relied on the decision of the Court of Appeal in R v Merrett, Piggott and Ferrari.[4] In that case there was a delay of almost five years between the commission of the offence and the sentencing of the offenders. During that period the appellants had made significant progress towards rehabilitation. In his reasons for judgment, Maxwell P referred to the ‘considerable public interest in the rehabilitation of offenders’.[5]
[4](2007) 14 VR 392 (‘Merrett’).
[5]Ibid 403.
In this case the sentencing judge referred to Merrett. His Honour said that he had taken the appellant’s rehabilitation into account, but added that some weight had to be given to public protection.[6]
[6]Reasons [55]-[56]: see [37] below.
It was submitted that his Honour had treated the protection of the public, and the appellant’s prospects of rehabilitation, as countervailing factors in sentencing. It was argued that, as a consequence, his Honour had disregarded the benefit to the community that would flow from the appellant’s rehabilitation. It was further submitted that his Honour had given insufficient weight to Dr Keuneman’s view, that if the appellant received a term of imprisonment, he would lose the benefit of the contact with clinicians which he had established following his earlier release from prison on parole. Although the sentencing judge said that he had given ‘particular consideration to that factor’,[7] it was submitted that this was not reflected in the sentence imposed. It was contended that his Honour had been unduly, and inappropriately, influenced by his stated view that the appellant had been, and probably still was, ‘a particularly devious, calculating and manipulative type of person’.[8] As a consequence, he gave too much weight to both specific and general deterrence in sentencing the appellant.
[7]Reasons [40].
[8]Ibid [26].
In relation to ground 3 counsel contended that the sentencing judge failed to give sufficient weight to the appellant’s plea of guilty, and to his genuine remorse.
With regard to ground 4 (manifest excess), counsel relied on his submissions in support of grounds 1, 2 and 3. He also contended that the sentencing judge had given insufficient weight to two other mitigating factors. These were the appellant’s own experience of sexual abuse as a child, and his participation in the preparation of a training video to warn people working with children about signs that a child was being groomed by a potential sexual offender.
Finally, it was submitted that the combined, albeit notional, non-parole period of 12 years, resulting from the addition of the three years imposed for these offences to the previous non-parole period of nine years, represented a very high proportion of the combined notional total effective sentence of 14 years and eight months. It was submitted that the non-parole period fixed by the sentencing judge was therefore manifestly excessive.
For the reasons given below, it is unnecessary to refer to counsel’s submissions in support of ground 5, which seeks the admission of fresh evidence relating to the appellant’s health.
The Crown submitted that the issue of totality was squarely before the sentencing judge at all stages. His Honour’s reasons showed that he had carefully considered how that principle should be applied in the circumstances of this case. His Honour had also given appropriate weight to the appellant’s efforts to rehabilitate himself. He was plainly aware of the community interest in offender rehabilitation. He had also sought a pre-sentence report to assist him to arrive at an appropriate sentence. Dr Keuneman’s report had referred to the benefit of the appellant being treated outside prison but had also said that ‘on-going psychological work of the kind [the appellant] has engaged in’ was possible in ‘either a custodial or non-custodial setting’.
The Crown submitted that the total effective sentence of four years and eight months imposed for these offences could not be regarded as disproportionate to the gravity of the offending. The victims were young boys who were in the appellant’s care. The offences were premeditated and involved the appellant in grooming the boys to win their trust. In addition, he had acted deviously in winning the sympathy of their families by falsely claiming that his wife had been killed in an accident.
In short, the Crown submitted, the individual sentences, the total effective sentence, and the non-parole period fixed were well within the range for offences of this nature.
Conclusion
We deal first with the specific errors alleged in grounds 2 and 3, and then turn to the issues of totality and alleged manifest excess.
Ground 2 - the appellant’s rehabilitation
As noted earlier, the submission for the appellant was that the sentencing judge made a specific sentencing error, by failing to accord sufficient weight to ‘the delay between the offences and the sentencing of the appellant’. It was submitted that the appellant had taken remarkable steps toward rehabilitation, and that his Honour failed to give appropriate weight to that fact.
As his Honour noted, it is often the case that children and young people do not report that they have been sexually abused until many years afterwards. In his sentencing remarks, his Honour noted the lengthy delay between the commission of these offences, and their having been reported. He said that he had taken that delay into account. He also said that, although there had not been any extraordinary delay between the first reporting of the offences and the plea hearing, he had taken account of the stress that the appellant must have been under while awaiting the outcome of the proceedings. He continued as follows:
The court very much suspects, however, that Mr Hughan when citing the decision in Merrett, more relied on the observations made by the learned judges of the Court of Appeal on the issue of rehabilitation of the offender in the period between the commission of the offences and the time of the plea hearing. The court has of course taken such matters into consideration when sentencing you.
However, having said that, you clearly remain, notwithstanding extensive rehabilitation, on the evidence as a risk to the community and particularly to a very vulnerable section of that community, namely young boys. In those circumstances the issue of public protection must be an important sentencing consideration for this court.[9]
[9]Reasons [55]-[56].
The contention of specific error must be rejected. It is clear that his Honour gave consideration to the public interest in rehabilitating offenders, and to Dr Keuneman’s opinion that the appellant would not have the benefit of previously established clinical relationships if required to serve a further term of imprisonment. His Honour said in his reasons:
Apart from making the diagnosis of paedophilia, Dr Keuneman found no evidence suggestive of you suffering from any major or current mood, anxiety or psychotic disorder. Dr Keuneman formed the opinion on both clinical and actuarial grounds that you present as a moderate risk for re-offending with this risk being further moderated by your ongoing participation in sex offender programs and counselling either in a custodial or a non-custodial setting. Dr Keuneman observed however that the benefit of already established continuity and engagement with clinicians would be lacking for you in a custodial setting. This court has given particular consideration to that factor.[10]
[10]Ibid [40] (emphasis added).
Whether sufficient weight was given to the appellant’s record of, and commitment to, rehabilitation is a question which can only be answered by looking at the sentence actually imposed. We return to this issue under ground 4.
Ground 3 – guilty plea
It was submitted in support of this ground that the sentencing judge had not placed sufficient weight on the appellant’s guilty plea, and upon evidence of his remorse. The history of that guilty plea can be briefly described.
After a committal hearing was booked there were plea negotiations between the appellant and the Crown. It was clear from an early stage in those negotiations that the appellant would plead guilty to offences against one of the complainants. However the question whether he would do so in relation to the other complainants took some time to resolve. Charges relating to one of the three original complainants did not proceed, but the appellant was charged with and pleaded guilty to charges against a fourth complainant.
His Honour remarked during the plea hearing that remorse would have been more evident if the appellant had pleaded guilty at the first available opportunity. The appellant’s counsel submitted that his failure to do so was explained by Dr Keuneman’s report, in which he indicated that the appellant had told him that he had suppressed these incidents from his memory. The appellant told Dr Keuneman that it was only later, after proceedings were brought, that he began to recall some details of these events.
In his sentencing remarks, his Honour said that he had taken the appellant’s plea of guilty into consideration and that he had applied an appropriate sentencing discount. He made no finding as to whether the appellant was genuinely remorseful, but did make favourable findings about the appellant’s efforts to rehabilitate himself.
In our view ground 3 is not made out. His Honour said that he had applied an appropriate discount for the appellant’s guilty plea. The sentence imposed provides no reason to think that he did not do so. These were appalling offences, involving serious abuses of trust. Neither the individual sentences, nor the total effective sentence, imposed for these offences lead to the conclusion that insufficient weight was given to the guilty plea.
Ground 1 – totality
In Mill v R,[11] the High Court held that where an offender had previously served time in custody and had later pleaded guilty to other similar offences, the proper approach was to consider what would have been the likely head sentence and non-parole period if the appellant had been sentenced for all of the offences at the one time.[12]
[11](1988) 166 CLR 59 (‘Mill’).
[12]Ibid 66. In that case, the offences had been committed in different jurisdictions.
In the course of a very well conducted plea, the sentencing judge was referred to the circumstances of the prior offences and to the sentencing reasons of Judge Howse in 1994 and Judge Smith in 1998 in relation to the County Court matters. His Honour was referred to Mill, and to the decision of the New South Wales Court of Appeal in R v Wheeler.[13] His Honour referred in his reasons to the concession by counsel for the Crown that the sentence to be imposed ‘should be moderated’ because of the earlier sentences, having regard to the principle of totality.[14]
[13][2000] NSWCCA 34.
[14]Reasons [66].
It is clear, therefore, that his Honour expressly took account of totality. The fact that he did not set out in his reasons a mathematical calculation of the combined total effective sentence, or the combined non-parole period, does not detract from that conclusion. As this Court has said on a number of occasions, where a sentencing judge states that a matter has been taken into account it will be assumed that the judge has done so. The only exception will be where the sentence imposed, or some other aspect of the sentencing judge’s remarks, demonstrates that this could not have occurred.
In order to make out the contention that his Honour gave insufficient weight to the principle of totality, the appellant must show that, had he been sentenced in 1994 for these matters, as well as those dealt with by Judge Howse, he would not have been sentenced to a term of fourteen years and eight months’ imprisonment, with a non-parole period of 12 years, but substantially less.
We consider that that contention cannot be sustained. The total offending amounted to 41 counts against 18 young boys spanning a period of almost 20 years. Nineteen of the counts for which the appellant was sentenced in 1994 were representative counts. If the appellant had been sentenced for all 41 counts at the one time, a substantial degree of cumulation would have been required to reflect his total criminality, as well as the lengthy period over which the offences were committed.
In R v Glennon (No 3),[15] the appellant had already served 10 years and six months in prison for sexual offences against a number of complainants.[16] In 2003 he was convicted of 13 counts of indecent assault, six counts of gross indecency, one count of sexual penetration of a child under 10, two counts of sexual penetration of a child between 10 and 16 and one count of rape. There were three victims of these offences. The effect of the combined total effective sentence imposed by the sentencing judge was that Glennon would be required to serve a total of 28 years’ imprisonment. The Court of Appeal held that a sentence of that order was manifestly excessive, and reduced the combined total effective sentence to 25 years.
[15](2005) 12 VR 421.
[16]He had been sentenced to six years imprisonment between 1991 and 1997 for offences against young people. He was serving eight and a half years’ imprisonment with a non-parole period of six and a half years arising out of a trial in 1999, of which he had served four and a half years at the time of sentence. That sentence related to 20 counts of indecent assault, three counts of attempted buggery against a person under 14 and one count of buggery, against six complainants.
The offences committed by Glennon were certainly more serious, in many respects, than those committed by the appellant. They included penetrative as well as non-penetrative offences against complainants who were younger than the victims in this case. Unlike the appellant, Glennon did not plead guilty, and showed no remorse.
Nevertheless, the offences committed by the present appellant involved systematic sexual assaults on young boys over a lengthy period. The victim impact statements provided by each of the three complainants, who are now in their 40s, show that the sexual abuse which they experienced as adolescents had serious and lasting effects upon them. In the case of LW, a psychiatric report states that the consequences of the appellant’s abuse include a lasting sense of shame, educational disadvantage, difficulty with intimate relationships and post-traumatic stress disorder.
His Honour specifically referred to the Crown submission that the sentence imposed should be moderated having regard to the previous sentence served by the appellant. He was also required to take account of the principles of denunciation and specific and general deterrence.
This ground of specific error fails.
Ground 4 – manifest excess
As we have said, grounds 1 to 3 are in essence particulars of ground 4, as well as allegations of specific error. The submission of manifest excess could only succeed if it were shown that the sentences imposed were outside the range reasonably open to the judge on the basis that proper weight was given to the matters relied on, namely:
·The appellant’s progress in and commitment to rehabilitation.
·The fact that Dr Keuneman had said that the appellant posed only a moderate risk of re-offending.
·The appellant’s assistance in the preparation of a training video for persons who were to work with children about the warning signs of grooming by potential offenders.
·The fact that the appellant had himself been sexually abused as a child.
The sentencing judge was faced with a difficult sentencing task. On the one hand, there was considerable evidence that the appellant had made substantial progress towards rehabilitation and now had considerable insight into his offending behaviour. On the other hand, Dr Keuneman, in his pre-sentence report, described the appellant as a paedophile who presented as a moderate risk of re-offending. His Honour referred to all of the factors mentioned above, other than the training video. In our opinion, neither the individual sentences nor the total effective sentence was outside the range.
The non-parole period of three years presents a more difficult issue. Since 2003, the appellant has made strenuous efforts to rehabilitate himself. Those efforts were undertaken before any of the present matters came to light, and were entitled to be given considerable weight. In addition, it might be thought that Judge Howse fixed an unusually high non-parole period in 1994 because he considered that the appellant’s prospects of rehabilitation were poor. That is no longer the case.
Dr Keuneman’s report notes that the appellant’s long period of prior offending, his poor relationship and intimacy history, his childhood experiences and his capacity to hide his prior offending are ‘static factors’ which increase his risk of offending. However in Dr Keuneman’s opinion the appellant has displayed insight into his prior behaviour, and has gained an understanding of what he needs to do to minimise the risk of re-offending.
The appellant has made strenuous efforts to avoid contact with young males. He has a strong support group from within the community. He has not been charged with, or convicted of, any offences since his release from prison in 2003. Having regard to these matters, we consider that the non-parole period of three years fixed for these offences, when viewed against the background of an earlier non-parole period of nine years, is manifestly excessive and should be set aside. A new non-parole period should be fixed.
The appellant’s approach to rehabilitation has been, in our view, quite exceptional. It is rare, in our experience, for a person diagnosed as a paedophile and with a record of offending such as this to have made such sustained efforts to minimise his own risk of re-offending. Self-evidently, the protection of the community is enhanced by any reduction in that risk. Efforts at rehabilitation must be encouraged and rewarded wherever possible consistently with other sentencing objectives. A longer period on parole will both reward the efforts Mr Wright has made and ensure that – while under Parole Board supervision – he receives maximum support, both professional and personal, in adhering to his relapse prevention plan.
Ground 5 – fresh evidence
The appellant’s counsel sought to tender what was said to be fresh evidence relating to the appellant’s health. That evidence consisted of the diagnosis of, and treatment for, a squamous cell carcinoma of the tongue, discovered only after the appellant was sentenced for the present offences.
In July 2007, while the appellant was in custody, but before he was sentenced, he developed a lesion on the tongue and was referred to St Vincent’s Hospital. In October 2007, after he had been sentenced, the lesion was biopsied and shown to be a squamous cell carcinoma. He underwent an operation resecting the tongue and dissecting part of his neck. At that time there was no evidence of any ongoing disease.
In late February 2008, the appellant noted a small lump in the right side of his neck. CT scanning showed that he had developed a metastatic deposit in one of his cervical lymph nodes. He had further neck surgery in April 2008 and underwent a course of radiotherapy. A medical report from Dr Foti Blaher, Director of Medical Services at St Vincent’s Correctional Health Services, indicates that his condition appears to have improved, and his requirements of analgesia have decreased significantly. At times he had been admitted to St John’s medical ward at Port Phillip Prison for medical and psychological support. Dr Blaher comments that
[s]pecialist services are the same as those available to people in the community, in Mr Wright’s case through St Vincent’s Hospital Melbourne, and the Peter MacCallum Cancer Centre. However imprisonment results in specific security issues, for example transportation to appointments, his reduced access to family and friends for support and the administration of all medication by health staff.
Dr Blaher observes that the appellant’s treatment results have been good.
A medical report from Dr Andrew Coleman, Radiation Oncologist, dated 25 August 2008, says that it is difficult to provide an accurate assessment of the appellant’s prognosis
as his primary tumour is relatively rare and a subsequent nodal relapse without initial poor prognostic features makes [his] case even more unique. [As] a guide however, a limited number of published results from individual institutions indicate that patients who present with the same extent of disease [as] Mr Wright had in 2007 have a 20% to 40% risk of death over the following 5 years. His more recent recurrence of cancer indicates that his prognosis is likely to be towards the less favourable end of this range.
Dr Coleman notes that the appellant has been able to attend all recommended appointments and treatment sessions while in prison, and that his imprisonment has not affected his medical management.
Because we have concluded that the sentencing judge erred in fixing a non-parole period of three years, it is unnecessary to decide whether the fresh evidence as to the appellant’s medical condition would be admissible in support of a challenge to his sentence as such.[17] His medical condition is of course relevant to his re-sentencing if it makes imprisonment more burdensome to him.[18] The fact that an offender may die in prison is also a relevant sentencing consideration, though it does not justify the imposition of a manifestly inadequate sentence.[19]
[17]The relevant principles are set out in R v Duy Duc Nguyen [2006] VSCA 184, [36] (Redlich JA, with whom Maxwell P and Neave JA agreed).
[18]R v Van Boxtel (2005) 11 VR 258, see in particular [29] (Callaway JA, with whom Ormiston and Charles JJA agreed).
[19]R v Cumberbatch (2004) 8 VR 9.
The appellant is currently aged 59. Although he does not have a terminal illness as such, his life expectancy has been reduced. There is no evidence that his treatment is compromised by imprisonment or that his physical condition affects his safety in prison. Nevertheless, prison will be more burdensome for him than for a prisoner who has not been treated for cancer, if for no other reason than that he is aware that his life span may be short. We would therefore give some weight to his condition in re-sentencing him.
Counsel for the appellant submitted that the Court should obtain another report before re-sentencing the appellant, in order to obtain more recent information regarding his prospects of re-offending. Having regard to Dr Keuneman’s comprehensive report dated 14 May 2007, we do not consider this to be necessary.
We would allow the appeal in part and affirm the individual sentences imposed below, and the orders for cumulation.[20] This would result in the same total effective sentence as that imposed by the sentencing judge, namely four years and eight months.
[20]As the sentencing judge recognised, s 6E of the Sentencing Act 1991 requires cumulation of the sentences imposed for each offence. For the sake of consistency with the orders made by the his Honour, we have simply confirmed his orders as to cumulation.
We would substitute for the non-parole period of three years fixed by the sentencing judge a non-parole period of two years. We do so both for the reasons set out earlier regarding his rehabilitation and having regard to the evidence now before the Court as to the prognosis for a recurrence of the appellant’s cancer. We note that the shorter non-parole period to be served for these offences will ensure that the appellant will have an additional year’s supervision after release on parole than was contemplated by his Honour.
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