RBN v The Queen

[2011] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0736
S APCR 2010 0343

R B N

Applicant

v

THE QUEEN

 Respondent

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JUDGES:	MAXWELL P, ASHLEY JA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 2011
DATE OF JUDGMENT:	3 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 261
JUDGMENT APPEALED FROM:	R v [R B N] (Unreported, County Court of Victoria, Judge Rizkalla, 16 July 2009)

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CRIMINAL LAW – Appeal – Sentence – Incest, indecent act, aggravated burglary – Convictions on two counts not open – Crown concession – Resentencing – Absence of aggravating factors – Consideration of sentencing range – Structure of sentence where multiple presentments.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Michael J Gleeson & Associates
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. The applicant pleaded guilty in the County Court to a series of sexual offences, including incest, against his two stepdaughters and to offences of aggravated burglary, false imprisonment and assault against his then wife who was the mother of the two girls.  He was sentenced as set out below.

Count	Offence	Maximum penalty	Sentence	Cumulation
Presentment X0304170
1	Incest	25y	4y	Base
2	Indecent act with child under 16	10y	9m	-
3	Incest	25y	4y	1y
4	Indecent act with child under 16	10y	9m	-
5	Aggravated burglary	25y	2y	1y
6	False imprisonment	10y	6m	-
7	Common law assault	5y	18m	6m
8	Contravening an intervention order	20 penalty units or 6m imprisonment or both	12m	-
Total sentence on Presentment X0304170			6 years 6 months imprisonment
Presentment X03047170.2
1	Incest	25y	5y	Base
2	Incest	25y	5y	2y
3	Incest	25y	5y	2y
Total sentence on Presentment X03047170.2			9y imprisonment 5y to be served cumulatively on the sentence imposed on Presentment X0304170
Total effective sentence			11y 6m
Non-parole period			9y
Pre-sentence detention			267 days
Section 6AAA Statement			TES: 15y NPP: 12y

1. The applicant now seeks leave to appeal against conviction and against sentence.  The conviction application is not opposed, notwithstanding the pleas of guilty, because it is now acknowledged that the convictions on counts 2 and 4 were not open in law.  This was so because, at the time of the conduct in question, the elder stepdaughter had already turned 16.  The Crown concedes that the convictions on both those counts should be quashed.

1. Senior counsel for the Crown informed us in the course of argument that consideration had been given as to whether convictions on alternative counts (namely, indecent act with or in the presence of a 16 or 17 year old child under his care, supervision or authority) could be substituted for the convictions to be quashed.  The Crown ultimately submitted that they could not.  I agree with that submission, for the following reasons. 

1. Subsection 421(2) of the Crimes Act 1958 (Vic), as in force at the time of the trial, provided:

Where, on a person's trial on indictment or presentment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged therein, but the allegations in the indictment or presentment amount to or include (expressly or by necessary implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence.[1]

[1]Crimes Act 1958 (Vic), s 421(2).

1. It is clear from the words of the legislation that the power to find a person guilty of an included offence turns on the terms of the allegations set out in the indictment or presentment.  As the Full Court said in R v Salisbury:

Whether the lesser offence is necessarily included in the offence charged is a matter which has to be determined upon a consideration of the terms in which the offence is laid. It is not a matter which depends upon the evidence led at the trial, except to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge.[2]

[2][1976] VR 452, 454.

1. In the presentment filed in the present case, the allegations in respect of counts 2 and 4 were, relevantly, that the applicant ‘wilfully committed an indecent act with or in the presence of … a child under the age of 16 to whom he was not married.’  It was not alleged - on those counts – either expressly or by necessary implication that the victim was relevantly under the applicant’s care, supervision or authority.  Absent such an allegation, the offence of indecent act with a child under his care, supervision or authority was not an offence necessarily included in either of the offences charged at counts 2 and 4. 

1. The fact that it was conceded at trial that the victim was, relevantly, under the applicant’s care, supervision or authority is not sufficient to overcome this problem.[3]  The convictions on counts 2 and 4 must be quashed.

   [3]Pollard v The Queen [2011] VSCA 95, [34].

1. It follows that the applicant must be re‑sentenced.  It is therefore unnecessary to deal with the grounds advanced in the sentence appeal, though it will be apparent from what I am about to say that I would have upheld the ground of manifest excess.

Resentencing

1. I set out as Appendix A to these reasons those parts of the sentencing reasons which describe the offending.

1. In my opinion the applicant should be re‑sentenced at a much lower level than the sentencing arrived at by the sentencing judge.  With great respect to the sentencing judge, it seems to me that the sentences and the total effective sentence which her Honour imposed treated this offending as falling into a category of seriousness to which it simply did not belong.

1. I do not, of course, overlook the separate offending against the mother of the two girls which was serious in itself and was the subject of what, with one modification, seem to me to be appropriate sentences.  (The particular modification relates to the offence of assault which the Crown prosecutor properly conceded on this appeal was considerably too high having regard to the offending in question.)

1. Sentences of the levels here imposed for incest are customarily reflective of offending accompanied by multiple aggravating features.  I have in mind cases involving sustained offending over a long period or periods, often charged as representative counts, with much younger victims and, most particularly, cases involving violence, threats, infliction of pain, and a refusal to desist despite requests from the victim.  Matters of that kind have, for perfectly understandable reasons, been viewed as making incest offences very much more serious.

1. This Court has said often that incest is a crime of great seriousness.[4]  It is an appalling crime, involving the worst kind of breach of trust as between parent and child, and it is notorious that it causes long-term damage to the child victims whom it is the parent’s first obligation to protect. 

   [4]DPP (Vic) v  CPD (2009) 22 VR 533, 546–7 [54]–[56] (‘CPD’) and the cases there cited.

1. It is, at the same time, of the essence of the sentencing task that like cases be treated alike and that different cases be treated differently.  A review of decisions of this Court dealing with sentence appeals for incest reveals just that.  Included at Appendix B to the reasons of the Court in Director of Public Prosecutions (Vic) v DJ,[5] dismissed on 30 March this year, is a table of decisions comprising the incest decisions relied on by the parties in DJ and the decisions set out in table D to the joint judgment in CPD.[6]

   [5][2011] VSCA 250 (‘DJ’).

   [6]Ibid.

1. A review of the sentences on the individual incest counts and the total effective sentences informs the approach to sentencing range in a case like this.  What is striking about the present case is that it had none of the aggravating features which are associated with the higher sentences in the table.

1. Counsel for the applicant made that point clearly in his written submissions.  The point was also noted by the sentencing judge in paragraph 16 of her reasons for sentence, in the following terms:

I do accept the further submission of your counsel that in this case unlike many there are not a myriad of uncharged sexual acts that accompany these.  It is not alleged by either of the young girls that there were other incidents of which they are not specific.  To that extent the offending can be seen to be limited to the specific occasions.  Further, you did stop when you were asked.  There was no violence or overt threat of physical violence to the complainants, although there were threats in terms of telling their mother.  The nature of the conduct can be said to have been opportunistic, and it does appear you voluntarily ceased your own conduct, because there were no allegations of offending in the year before the first complaint was made.  All of those matters are relevant and I take them into account.

1. Properly analysed, in my view, this case had to be viewed as falling at the lower end of seriousness of what is always a serious offence.  The sentencing needed to reflect that by appropriate differentiation from the heavier sentences imposed in more serious cases.

1. It is notable that the judge received no assistance on sentencing range from the Crown.  She did not seek it and none was offered.  Defence counsel did refer, but only briefly, to the decisions in CPD[7] and Director of Public Prosecutions (Vic) v DDJ[8] which at that time were relatively recently handed down.  What was required, in my respectful opinion, was the kind of comparative analysis which even the briefest examination of a table like the one attached to the judgment in DJ[9] would have enabled the prosecutor to provide.  As stated by the majority in R v MacNeil-Brown,[10] the provision of assistance by the Crown on the plea is conducive both to consistency of sentencing and to the reduction of appellable error.

   [7](2009) 22 VR 533.

   [8](2009) 22 VR 444.

   [9][2011] VSCA 250, Appendix B.

   [10](2008) 20 VR 677, 679 [4].

1. In my opinion, if the judge had been given the kind of assistance that we often receive in this Court, and as we received, for example, on the director's appeal in DJ,[11] it is quite likely that this appeal would not have taken place at all.  Had that happened, her Honour would have been given the parameters within which to determine an appropriate sentence for this case.  This case illustrates once again the value of submissions on range on the plea.

   [11][2011] VSCA 250.

1. Apart from the absence of aggravating features, there were a number of positive matters on which the applicant could rely, each of which would have tended towards a lesser rather than a higher sentence.  The sentencing judge said:

Further, I do accept your plea as a recognition of responsibility in relation to both, and it is a positive matter for the girls when they come to deal with these offences and move on from them.  You yourself would be aware young children are traumatised by what happens to them in terms of sexual abuse, and as I understand from reading Mr Ball's psychological report in terms of your own personal experience, you still suffer some trauma in terms of what happened to you when you were about twelve years of age at the hands of an adult male.  As a result, one would hope that you do have insight into the effects these offences have had on the young girls, and I see your plea of guilty as a recognition of that insight.  As I say, I do propose to give you real mitigation in sentence for your conduct in both these matters.  As your counsel conceded, these offences all have aggravating circumstances, the main being a breach of parental trust and a substantial age gap between yourself and them, and particularly [T], and the fact that there were five separate sexual incidents, rather than just a once-off incident, when you utilised your position as their stepfather when their mother was not present to abuse them.

As can be seen from her Honour’s reasons, the sentence imposed was to be reduced on account of the applicant’s recognition of responsibility.  We often enough see cases of this kind where there is no such recognition of responsibility.

1. The sentencing judge referred to the applicant's good prospects of rehabilitation, the absence of any prior convictions and the insight he has into the need for his own rehabilitation:

You have no other offending that can be said to be of relevance to these matters, and on that basis your counsel submitted you are a reasonably good prospect for rehabilitation, and that you have shown insight and contrition.  I accept on that basis that you are a relatively good prospect once you are released to rehabilitate, and that is not as high a priority in sentence as it might otherwise be.  However, as both your counsel and the Crown accept, general deterrence is plainly the most significant aspect of this sentence, that is, to send a message to other people in your position that this sort of conduct just cannot take place.  The Court of Appeal have recently stated that judges must indicate by way of sentence that the community will not accept conduct against little children, particularly when it is a family member in a position of power and trust such as yourself.  It has long been recognised the implications and effects on the whole family and the complainants is extremely far reaching.  It has to further be said that in this case the material that I have shows that this conduct will have implications for both the complainants, for your wife, and indeed, for your young son, well into the future.

I do take into account the reference from your brother-in-law which briefly referred to the way in which he saw you bringing up your three adult sons and your previous good character.  I further take into account your participation in the GROW Program whilst you are in prison.  I accept that you do appear to be approaching the fact of the long period of incarceration with an attitude that gives the court confidence that you do have insight into the need to rehabilitate then, so that you will be able to continue upon release.

Again, these are factors which are very often absent in cases of this kind, which are often characterised by the offender blaming the victim.  

1. Counsel for the applicant has provided a more up‑to‑date report, dated 20 December 2009, on the participation by the applicant in what is called the GROW program at Port Phillip Prison.  The report records as follows:

Since becoming a GROW Member Bryan has learned the meaning of the GROW program and practices this in his everyday life.  Bryan is prepared to help others and encourages them to use the program. He has become insightful into his own problems through the appliance of the GROW Program,  his knowledge and use of which helps him in resolving personal and other issues.

Bryan attends a GROW Group meeting every week, he is a dedicated, caring and mature member. He has shown a positive attitude to the meaning of the GROW philosophy, how to personally use that meaning and help others understand that it can help them to grow positively.

Bryan is a very genuine link in the Group Meetings and carries the GROW message to members, and to others, between meetings. He has developed a mature and positive attitude to life.

Bryan is respected and well liked and was recently approached by the group as the next group Organiser this is a very trusted and responsible position in Grow he also states he wishes to join a Grow group on his release from Prison this would give him very genuine support.

1. As the extract from that report shows, the positive view the judge had about the applicant’s prospects of rehabilitation is only reinforced.  Even with such serious offending as this is, it is appropriate, in my opinion, to recognise and reward efforts at rehabilitation of the kind which this applicant has made.  It follows that the non‑parole period which I would propose is proportionately lower as a proportion of the head sentence than that which the judge herself fixed.

1. Finally, I deal with a matter which was raised in the grounds of appeal and helpfully addressed by senior counsel for the Crown.  It concerns the structure of the sentence. 

1. As appears from the table I have already set out, the judge arrived at what her Honour called a total sentence on the first presentment and a total sentence on the second presentment.  She then cumulated a proportion of the total sentence on the second presentment on the total sentence on the first, thus arriving at a total effective sentence for both presentments.

1. The grounds of appeal contend that there was either error in the methodology or that the methodology was conducive to error.  Counsel for the respondent has helpfully drawn attention to authorities which confirm that the method adopted is perfectly proper.  Certainly, it has been my experience that it is an approach adopted both by sentencing judges and by this Court on re‑sentencing.

1. We were invited to express a view about whether this approach – arriving at a total sentence separately for each presentment and then cumulating – was preferable to an approach which ignored the separateness of the presentments and simply sentenced on all of the counts taking one as the base and cumulating from there.  In my opinion it is neither appropriate nor necessary for us to express any preference.  There will be cases where there is obvious separateness between the matters the subject of one presentment and the matters the subject of another.  In such a case the approach adopted here will be particularly appropriate in enabling the sentencing judge to form a view about the criminality associated with the conduct on one occasion and a separate conclusion about the criminality on another occasion.

1. It is sufficient, I think, to say that this is an appropriate way to construct a sentence and that in the end, the question will be whether what sentence is arrived at is affected by error.  That is not a question of methodology but a question of result.

1. The judge would always, if approaching it in this fashion, arrive at a total effective sentence to which the totality question would then have to be applied, the ‘last look’, as the High Court has described it.[12]  The judge would always have to be satisfied that the total effective sentence arrived at by cumulating one presentment on another was not disproportionate to the total criminality reflected in the conduct covered by both presentments.  With that safeguard, which is the same in every case, it seems to me there is no risk of this method being more likely to produce error than the other.

   [12]Mill v The Queen (1988) 166 CLR 59, 63; Johnson v The Queen (2004) 78 ALJR 616, 623 [18].

1. I would propose that the following orders be made and the applicant be re‑sentenced to a total effective sentence of 7 years and 6 months and a non‑parole period of 4 years and 6 months, structured as set out in the following re‑sentencing table:

Count	Offence	Maximum penalty	Sentence	Cumulation
Presentment X03047170
1	Incest	25y	3y	Base
3	Incest	25y	3y	1y
5	Aggravated burglary	25y	2y	1y
6	False imprisonment	10y	6m	-
7	Common law assault	5y	9m	3m
8	Contravening an intervention order	20 penalty units or 6m imprisonment or both	12m	3m
Total sentence on Presentment X03047170			5 years 6 months’ imprisonment
Presentment X03047170.2
1	Incest	25y	4y	Base
2	Incest	25y	4y	6m
3	Incest	25y	4y	6m
Total sentence on Presentment X03047170.2			5y imprisonment 2y to be served cumulatively on the sentence imposed on Presentment X03047170
Total effective sentence			7y 6m
Non-parole period			4y 6m
Pre-sentence detention			1015 days
Section 6AAA Statement			TES: 10y NPP: 7y

ASHLEY JA:

1. I agree that the application for leave to appeal against conviction in respect of counts 2 and 4 on what has been called the first presentment must be granted, and that that appeal must be allowed, the convictions quashed and acquittals entered.

1. With respect to the re‑sentencing of the applicant which necessarily follows from the acquittals entered in respect of counts 2 and 4 on the first presentment, I agree with the individual sentences, the orders for cumulation, the orders for cumulation as between presentments, and the non‑parole period which the learned President in turn proposes.

1. Like his Honour, I see no fault in sentencing the applicant (or in this instance re‑sentencing the applicant) upon one presentment, upon a second presentment separately, and then making orders for cumulation as between the total sentences on the two presentments and in turn fixing a single non‑parole period.  As senior counsel for the Crown observed when this matter was under discussion, often enough, as was the case here, multiple presentments will represent offences of a different character or involving different complainants. 

1. In my view, the sentences which are proposed on the sexual offence counts are appropriate because, intrinsically, the particular offending was at nowhere near the level of seriousness which, unfortunately, this Court commonly encounters, and because the surrounding circumstances were much to the applicant's advantage. 

1. As the President has observed, the sexual offences involved five discrete incidents over a period of about four months.  There were no representative counts.  There were no rolled-up counts.  The offences themselves were not accompanied by threats or violence.  The children, though one of them was only aged 12 at the relevant time, were by no means as young as this Court commonly encounters with offences of this kind.

1. The applicant had been a good parent to the two victims for a period of about six years before these five instances of isolated offending; and he was a good parent, so far as the Court is aware, in the period thereafter until his being arrested and charged.

1. All those matters, together with the applicant's favourable personal circumstances, which included an absence of prior relevant convictions, suggested that the sentences ought be at a relatively low level in the scheme of things – though always remembering the maximum penalties for the various offences, particularly the offence of incest.  But what the judge did was to fix upon sentences, notwithstanding all the circumstances to which I have referred, and I should mention also the plea of guilty, which set a head term well towards the upper reaches of penalties imposed with offences of this kind.  On no view was that sustainable.

1. It would have been helpful had the prosecutor provided some broad assistance – I do not mean by entry into a bidding war – so that the judge could arrive at an appropriate sentence.  But the prosecutor was not asked to provide assistance.  Unfortunately, all that happened was that counsel for the applicant referred, as it appears, to Director of Public Prosecutions v CPD[13] and Director of Public Prosecutions v DDJ.[14]It may be said that his submissions rather missed the point of what those cases may be said to illustrate.  

   [13](2009) 22 VR 533.

   [14](2009) 22 VR 444.

1. It should not have been necessary for either the prosecutor or counsel for the applicant to have greatly elaborated why it was, when both the offences and the offender were considered, that the particular misconduct fell at one end of the sentencing spectrum.  In truth, the sentences which the judge imposed were, having regard to all the circumstances, inexplicable.

ROSS AJA:

1. I agree with the orders proposed for the reasons provided by his Honour the President.

MAXWELL P:

1. The orders of the court are set out in attachment 1.

‑ ‑ ‑

Appendix A

In short, at the time of this offending you were legally married to [B] who is the mother of each of the two young girls.  As a result of that marriage, they were therefore your stepchildren.  At that point you had been married for about six years.  [O] was 16 at the time of the offending, [T] 12.  The offending was over a similar period of time, June/July 2007 through to October/November 2007.  The offending came to light when [T] made complaints in terms of sexual abuse to a DHS worker.  As a result, police and her mother were informed.  Some months after, [O] also made allegations. 

…

In terms of [T], Count 1 is an instance when she was sitting on a couch watching television at home.  You were next to her.  You asked her for a cuddle.  You undid her bra, took it off, felt her breasts, and then placed your fingers into her vagina, penetrating her, saying words to the effect, "It will happen when you're older".

Count 2 occurred later in that year in October, when again you were with her in a fishing boat in Westernport Bay.  You asked her for a cuddle, and similarly, you undid her bra strap, felt her breasts, and then put your fingers into her vagina.  You made similar comments, but you also added on that occasion if she told her mother, her mother would hate her.

The third occasion, Count 3, was around November.  Again you were out on the way to a fishing trip with [T].  She was in the car next to you.  You again asked her for a cuddle, undid her bra, half took it off, felt her breasts, and placed your finger into her vagina saying at the same time, "If you tell your mum, she will hate you".

The other presentment which relates to [O] can be briefly summarised as follows:

Counts 1 and 2 arise in October 2007, when you entered the bedroom of [O], touched her on her breasts, and placed your finger into her vagina telling her not to tell her mum, because it would hurt her.  She asked you to stop it and you did.

Counts 3 and 4 arise a few weeks later when you did similar things in the kitchen.  You came up behind [O].  You penetrated her vagina with your finger after touching her breasts.  Again she told you to go away, and you did.

Attachment 1


[R B N] v The Queen
S APCR 2009 0736 (appeal against sentence)
S APCR 2010 0343 (application for leave to appeal against conviction)

ORDER

1. The application for leave to appeal against conviction is granted.

2. The appeal is treated as instituted and heard instanter and is allowed.

3. The convictions sustained by the appellant in the Court below on counts 2 and 4 of Presentment X03047170 are quashed and the sentences passed thereon are set aside.

4. The Court directs a judgment and verdict of acquittal to be entered on those counts.

5. The appeal against sentence is allowed.

6. The sentences of imprisonment imposed below on the first Presentment are quashed.  In lieu thereof, the appellant is sentenced as follows:

   Count 13 years’ imprisonment

   Count 33 years’ imprisonment

   Count 52 years’ imprisonment

   Count 66 months’ imprisonment

   Count 79 months’ imprisonment

   Count 812 months’ imprisonment

7. The Court directs that 1 year of the sentence imposed on count 3, 1 year of the sentence imposed on count 5, 3 months of the sentence imposed on count 7 and 3 months of the sentence imposed on count 8 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 5 years 6 months’ imprisonment.

8. The sentences of imprisonment imposed below on the second Presentment are quashed.  In lieu thereof, the appellant is sentenced as follows:

   Count 14 years’ imprisonment

   Count 24 years’ imprisonment

   Count 34 years’ imprisonment

9. The Court directs that 6 months of the sentence imposed on count 2 and 6 months of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 5 years’ imprisonment.

10. The Court directs that 2 years of the sentence imposed on the second Presentment be served cumulatively upon the sentence imposed on the first Presentment, making a total effective sentence of 7 years 6 months’ imprisonment.

11. A non-parole period of 4 years 6 months is fixed.

12. It is declared that the period of 1015 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

13. All other ancillary orders are confirmed.

Other Matters:

The appellant is sentenced for the offences the subject of counts 1,2 and 3 on the second Presentment as a serious sexual offender and it is ordered that that fact be entered in the records of the Court.

The Court grants to the appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998.

Pursuant to s 6AAA of the Sentencing Act 1991, we state that if it had not been for the appellant’s plea of guilty, we would have imposed the following sentence: total effective sentence of 10 years’ imprisonment and a non-parole period of 7 years.

In accordance with s 6AAA(4), we will cause it to be noted in the records of the Court that in respect of the individual counts the sentence which would have been imposed but for the plea of guilty is as follows:

First presentment

·           Count 1: 4 years’ imprisonment

·           Count 3: 4 years’ imprisonment

·           Count 5: 3 years’ imprisonment

·           Count 6: 9 months’ imprisonment

·           Count 7: 18 months’ imprisonment

·           Count 8: 18 months’ imprisonment

Second presentment

·           Count 1: 7 years’ imprisonment

·           Count 2: 7 years’ imprisonment

·           Count 3: 7 years’ imprisonment