Richard Grantley (a pseudonym)[1] v The Queen
[2017] VSCA 67
•3 April 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0219
| RICHARD GRANTLEY (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGE: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined ‘on the papers’ |
| DATE OF JUDGMENT: | 3 April 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 67 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1538 (Judge Sexton) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Incest – Indecent act with a child under 16 years – Total effective sentence of nine years’ imprisonment – Non-parole period of seven years – Manifest excess – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Paul Vale Criminal Law |
| For the Respondent | No appearance | Mr John Cain, Solicitor for Public Prosecutions |
TATE JA:
The applicant, for whom I will use the pseudonym Richard Grantley,[2] seeks leave to appeal against sentence imposed on him in the County Court of Victoria on 13 October 2016. He pleaded guilty on 13 September 2016 to one representative charge of incest contrary to s 44(1) of the Crimes Act 1958, a further charge of incest, and one charge of indecent act with a child under 16 years contrary to s 47(1) of the Crimes Act. He was sentenced as follows:
[2]In these reasons I will adopt the pseudonyms used by the judge below in her sentencing remarks: DPP v Grantley (a pseudonym) [2016] VCC 1538 [1] (‘Sentencing reasons’). The judge called the older complainant Libby, the second complainant Ella, their next youngest sister Freda and the youngest sister Tara. The judge called the mother of the girls Karen Chester.
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1 Incest (representative charge)[Crimes Act 1958 s 44(1)] 25 years’ imprisonment 6 years 6 months’ imprisonment Base 2 Incest [Crimes Act 1958 s 44(1)] 25 years’ imprisonment 5 years 6 months’ imprisonment 2 years 3 Indecent act with a child under 16 years [Crimes Act 1958 s 47(1)] 10 years’ imprisonment 12 months’ imprisonment 6 months Total Effective Sentence:
9 years’ imprisonment
Non-Parole Period:
7 years
Pre-Sentence detention declaration:
31 days
6AAA Statement: None made
Other relevant orders: Sentenced as a Serious Sexual Offender on charge 3. Forensic Sample Order pursuant to s 464ZF of the Crimes Act 1958. Report pursuant to the Sex Offenders Registration Act 2004 for life.
Grantley seeks leave to appeal on the ground that the individual sentences, the orders for cumulation, the total effective sentence, and the non-parole period fixed are each manifestly excessive. He relies on the following particulars:
(a) The judge gave manifestly insufficient weight to his early pleas of guilty, his genuine remorse, his age, his prospects for rehabilitation and the principle of totality;
(b) The sentences imposed on charges 1 and 2 are manifestly too long given the absence of certain otherwise aggravating features;
(c) The sentences imposed on charges 1 and 2 are not consistent with current sentencing practices, with those sentences reflecting a stark (not incremental) departure from current sentencing practices;
(d) The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.
For the reasons that follow, I consider that leave to appeal should be granted as it is reasonably arguable that the sentence imposed is manifestly excessive.
Circumstances of the offending
The acts giving rise to the charges occurred in 2011, and again in 2014. The two complainants, Libby and Ella, are the step-daughters of Grantley. He began a relationship with their mother, Karen Chester, in 2006 and began living with her and her three daughters: Libby, then aged about seven, Ella, aged about five, and Freda, the youngest child. Following a break in 2008, Grantley and Ms Chester were married, and had a daughter, Tara, in 2010. The judge described Grantley as ‘a trusted father figure’[3] to the girls and his conduct as involving a ‘gross breach of trust’.[4]
[3]Sentencing reasons [7].
[4]Ibid.
The first incident occurred in 2011, when Libby was aged about 12 to 13 years and Grantley was about 38. Father and step-daughter were on the couch together under a doona watching TV. Grantley began to touch Libby’s leg and then her genital area. The judge described what followed:
She froze and pretended to be asleep, which is a very common reaction for children suddenly finding themselves in such circumstances. You continued touching her, eventually rubbing her vagina under her clothing and groping her breast on top of her clothing. You then digitally penetrated her for a considerable time, while she continued to pretend to be asleep, until the TV program finished and the other girls, Ella and Freda, left the room. You then resumed penetrating your eldest stepdaughter, again for an extended period of time, while also squeezing her breasts.[5]
[5]Ibid [8].
These two occasions of digital penetration formed the basis for charge 1, being the representative charge of incest.
The second incident took place in 2014 and involved Ella, who at that time was about 14, while Grantley was about 40. The judge described this episode of offending in the following terms:
Ella was sitting on your lap at the computer. You began touching her leg, and then her genital area. Ella froze, as she was in shock, again a common reaction for a young person suddenly confronted with a sexual act in such circumstances. You continued touching her, eventually putting your hand inside her underwear and digitally penetrating her.[6]
[6]Ibid [9].
The third incident occurred in 2014, a few months later, and again involved Ella. On this occasion, Grantley and Ella were in the bedroom Grantley shared with his wife. The judge outlined Grantley’s behaviour as follows:
you were ‘play wrestling’ on the bed. You grabbed Ella’s top and pulled it down, exposing her breasts, and she saw you looking at her breasts in the wardrobe mirror.[7]
[7]Ibid [10].
This conduct formed the basis for charge 3 of indecent act involving a child under 16.
The judge’s findings
The judge described Grantley’s conduct in the three incidents as ‘outrageous’,[8] aggravated by the breach of his position as a trusted parent. The harm suffered by the complainants extended to the whole of the family, affecting his wife and other daughters, particularly his youngest daughter, Tara, who as a result has lost all contact with him.
[8]Ibid [11].
The judge found that Grantley’s conduct was serious, causing considerable suffering for the complainants and the other members of the family. She noted that Grantley took advantage of Libby, thinking she was asleep, and was persistent in his behaviour, repeating the penetration when she appeared not to wake up. He then offended against Ella three years later in a manner which the judge characterised as ‘brazen’.[9] The judge concluded, however, that the offending was not in the worse category of these offences because they were not frequent. She assessed them as mid-range.
[9]Ibid [15].
In a careful and comprehensive judgment, the judge noted that Grantley pleaded guilty at the earliest opportunity, thereby saving the complainants and his family the ordeal of a trial, and the community the time and cost of that process. The early plea showed that he accepted responsibility for his offending and demonstrated remorse. The judge took into account that, although there were some dishonesty offences in the Magistrates’ Court in the early 1990s, Grantley had no relevant criminal record. She sentenced him on the basis that he had not previously committed an offence of a similar nature.
On the issue of prospects of rehabilitation, the judge noted that Grantley has strong support from his two older brothers and from a friend who is a former employer, and that this continued support is vital to his rehabilitation. The judge referred to Grantley’s difficult upbringing, being raised by his violent and alcoholic father alone after his mother left the family when he was young. This upbringing was dysfunctional involving both emotional neglect and physical violence. The judge also took into account an episode of sexual abuse against Grantley by his father when he was five (touching him on the buttocks and then the penis), but in the absence of any clear evidence to connect that episode with the offending, the judge concluded that it did not form a basis for reducing his moral culpability. While Grantley had expressed remorse and empathy for his behaviour against the complainants, his insight into the factors contributing to that behaviour remained low.
However, the judge concluded that Grantley’s prospects of rehabilitation are reasonable because he accepts responsibility for his actions, he has shown remorse and is developing empathy, there is an absence of psychiatric or substance abuse issues and he is willing to undergo further treatment. Her Honour noted that Grantley had voluntarily started counselling with a psychologist, Ms Vikki Prior, in early January 2016 and had attended eight sessions until late July 2016. Ms Prior had noted that Grantley appeared to be ‘genuinely bewildered by and disappointed in [his] behaviours and ashamed’.[10] She referred to Ms Prior’s observations that Grantley had accepted responsibility for his actions and appeared to be genuinely remorseful, but that while he showed some insight into his behaviours, continued treatment would be beneficial.
[10]Ibid [22]-[23].
Similarly, Mr Jeffrey Cummins, forensic psychologist, accepted that Grantley was taking responsibility for his behaviour, although he was at a relatively early stage in developing insight about his motivations. Mr Cummins found no issues with drugs or alcohol, and no psychiatric disorder. He also expressed the view that Grantley should undertake further treatment focussed on his dysfunctional upbringing, including a group based sex offender program, in order to reduce his risk of re-offending from ‘moderate to high’ to ‘low to moderate’.[11]
[11]Ibid [25]-[26].
Counsel for Grantley on the plea indicated that her client was aware of the requirement for undertaking courses in custody in relation to sexual offending, that he wished to engage fully with that process, and to continue private counselling and psychological treatment following his release.
The judge referred to statements by this Court about the relationship between current sentencing practices and the statutory maximum for a particular offence, noting that the former does not foreclose the possibility of an increase in the level of sentence. Her Honour further referred to statements by this Court about the disparity between the maximum penalties for sexual penetration offences against children, and the sentences handed down.[12] She emphasised the need to take into account general deterrence. She also found that specific deterrence was relevant because she found that, without further treatment, there is a risk that Grantley will re-offend.
[12]Ibid [41].
In addition to noting that as a result of the sentence Grantley would become a registrable sex offender and subject to the regime under the Sex Offenders Registration Act 2004, the judge recorded that she would be sentencing him as a serious sex offender on charge 3. The result was that she had regard to the protection of the community as the principal purpose for imposing sentence on that charge, but the judge declined to impose a sentence greater than is proportionate to his offence.[13]
[13]Ibid [34]–[36].
Analysis
There is no suggestion by Grantley that the judge failed to take into account the various factors he seeks to rely upon – his early plea of guilty, his age, his remorse, his prospects of rehabilitation and the principle of totality. Rather, he argues that the judge failed to give sufficient weight to those matters. As has been rightly acknowledged by him, whether or not a sentence is manifestly excessive will be a matter of conclusion.[14] He will only succeed where he can demonstrate that the sentence was wholly outside the range of sentencing options available. That is a difficult matter to establish. An appellate court will only intervene where a clear error is shown.[15]
[14]Dinsdale v The Queen (2000) 202 CLR 321, 325 [6].
[15]R v Clarkson (2011) 32 VR 361, 384 [89].
It is clear given the maximum penalties applicable to charges 1 and 2 that these are by their nature extremely serious offences, and any sentence should reflect that fact. The applicant’s conduct has constituted a gross breach of trust by him as step-father, and beyond that as husband and father. The effects on the complainants have been deeply felt, and will have ongoing ramifications. Even so, as the judge correctly noted, this is by no means the worst example of these offences; it is a sad fact that cases that have come before the courts have included ongoing, systematic, violent and manipulative behaviour against victims, sometimes of an extremely young age, and in some cases involving horrendous injury, degradation, trauma and pregnancy.
Given the circumstances of offending in this case, and the matters set out by Mr Cummins and Ms Prior about the applicant’s genuine remorse and prospects of rehabilitation, the total effective sentence and the non-parole period appear to be high. But can it be said that the base sentence of six years and six months, or the orders for cumulation, are outside the sentencing range? Is there a reasonable prospect that on appeal the Court would impose a less severe sentence, bearing in mind that whether this Court would have exercised its discretion to impose a different sentence is not to the point in the absence of any error below?[16]
[16]Lowndes v The Queen (1999) 195 CLR 665, 671-2 [15]; Markarian v The Queen (2005) 228 CLR 357, 371 [28]; Ashdown v The Queen (2011) 37 VR 341, 402 [178] (Redlich JA).
In Director of Public Prosecutions v Dalgliesh (a pseudonym)[17] some of the offending also involved incest. There was an episode of unprotected sex with the 13 year old daughter of the offender’s partner that resulted in a pregnancy that had to be terminated, and one episode of penetrative sex with another of the daughters of the offender’s partner. That daughter was aged 15 or 16 and had a mild intellectual disability. Dalgliesh was also sentenced on one charge of sexual penetration of a child under 16 (fellatio) against one of the girls when she was between the ages of nine and 14, but before the offender could be said to be in a de facto relationship with her mother, as well as on one charge of indecent assault on the other daughter. He was sentenced to three years’ six months imprisonment on the first charge of incest. This was used as the base sentence. A sentence of three years’ imprisonment was imposed on the second charge of incest with nine months’ cumulation. A sentence of one year and six months’ imprisonment was imposed for the indecent assault (with six months’ cumulation) and three years for the sexual penetration of a child under 16 (with nine months’ cumulation). The total effective sentence was five years and six months with a non-parole period of three years.
[17][2016] VSCA 148 (‘Dalgliesh’).
The Director of Public Prosecutions (‘the Director’) submitted that the sentences imposed for the offences of incest, characterised as of mid-range seriousness, were disproportionately low when considered against the yardstick of the maximum penalty of 25 years’ imprisonment, having regard to the objective gravity of the offending and the high moral culpability of the offender. This Court agreed and held that ‘[s]entences for incest offences in the mid-range of seriousness should be progressively increased so as to properly reflect the objective gravity of this offence’.[18] In that context this Court said the existing sentencing practice with respect to incest did not properly reflect the moral culpability of the offending. The Court said:
In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal system can be — and should be — self-correcting.
Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.
On the current state of sentencing, there is no sufficient differentiation between worst case and mid-range offending. As we have said, sentences for mid-category offending have been constrained by sentences for worst category offending, and the sentencing range for mid-range offences has been inappropriately compressed.
As senior counsel for the Director correctly submitted, it is part of this Court’s overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing. To that end, we have concluded that sentencing courts must, by increments, increase the sentences for mid-range incest offences, so that the range of sentences is uplifted and substantially expanded. The maximum penalty provides sentencing courts with ample latitude to fix sentences which properly reflect the degree of criminality involved.[19]
[18]Ibid [7].
[19]Ibid [128]-[131].
Those remarks might be taken to confirm that sentencing judges are not constrained when it comes to the outer limits of any sentencing range, where the circumstances of the case warrant it. However, this Court emphasised that it anticipated that the increase in sentences for mid-range offences of incest would occur by increments. This qualification is in part due to the need to have regard to the principle that like cases should be treated in like manner.[20] No doubt this poses difficulties for the sentencing judge who is seeking to give effect to the observations of this Court in Dalgliesh about the need to develop a proportionate response to the objective gravity of incest while acknowledging the importance of consistency in sentencing.[21]
[20]Lowe v The Queen (1984) 154 CLR 606, 610-11 (Mason J); Wong v The Queen (2001) 207 CLR 584, 591 [6] (Gleeson CJ); Boulton v The Queen (2014) 46 VR 308, 319 [37]-[39]; R v Pham (2015) 256 CLR 550, 559 [28].
[21]Dieu Chol v The Queen [2016] VSCA 252 [20]. The Court referred to Ashdown v The Queen (2011) 37 VR 341, 401 [174], cited in Nash v The Queen (2012) 40 VR 134, 135 [1].
In those circumstances I consider that leave to appeal against sentence ought be granted because it is reasonably arguable that the sentence imposed is manifestly excessive and I do not consider that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.
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