Robert Wright (a pseudonym)[1] v The Queen
[2013] VSCA 242
•10 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0280
| ROBERT WRIGHT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES | BONGIORNO, OSBORN JJA AND HARGRAVE AJA |
| WHERE HELD | Latrobe Valley |
| DATE OF HEARING | 12 August 2013 |
| DATE OF JUDGMENT | 10 September 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 242 |
| JUDGMENT APPEALED FROM | DPP v Wright (A Pseudonym) (Unreported, County Court of Victoria, Judge Harbison, 4 June 2012) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Carnal knowledge of a girl under the age of 10 years, carnal knowledge of a girl aged between 10 and 16 years, indecent assault on a child under 16 years, indecent assault on a person under 16 years – Total effective sentence of 10 years and six months’ imprisonment with a non-parole period of six years – Where sentenced in respect of one count of carnal knowledge of a girl under the age of 10 years on the erroneous basis that the applicant was an adult at the time of the offending in question – Where time to be served will be more onerous due to medical condition of the applicant – Leave to appeal granted – Appeal allowed – Re-sentenced – Total effective sentence of nine years and six months’ imprisonment with a non-parole period of five years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Littleton Hackford & D’Alessandro |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
OSBORN JA:
HARGRAVE AJA:
On 23 November 2011 at the Latrobe Valley County Court, the applicant was found guilty of six charges of carnal knowledge of a girl under the age of 10 years, two charges of carnal knowledge of a girl aged between 10 and 16 years and five charges of indecent assault on a child under 16 years. The complainant was the applicant’s niece. At the same time he was acquitted of 12 other charges of sexual misconduct involving three other complainants (Indictment No. Y02852643).
Immediately after that trial, on 1 December 2011 the applicant was found guilty in a separate trial of three charges of indecent assault involving another complainant (Indictment No. Y02852643.3). He was subsequently sentenced on 4 June 2012 in respect of the offences of which he was found guilty on each indictment. All of these offences were described in the language applicable to the time they were committed and carried maximum sentences as then prescribed. His sentences were as follows:
charge on indictment offence maximum sentence cumulation first trial – indictment number: y02852643 complainant: bt 3 Indecent assault on a girl under 16 [s 55 of the Crimes Act 1958][2] 5 years [s 55(1) of the Crimes Act 1958] 6 months - 4 Carnal knowledge of a girl under 10 years [s 46 of the Crimes Act 1958][3] 20 years [s 46 of the Crimes Act 1958] 12 months 3 months 5 Carnal knowledge of a girl under 10 years 20 years 12 months 6 months 6 Indecent assault on a girl under 16 5 years 6 months - 7 Carnal knowledge of a girl under 10 years 20 years 12 months 6 months 8 Indecent assault on a girl under 16 5 years 12 months 6 months 9 Carnal knowledge of a girl under 10 years 20 years 12 months 6 months 10 Carnal knowledge of a girl under 10 years 20 years 3 years 9 months 12 Indecent assault on a girl under 16 5 years 2 years - 13 Carnal knowledge of a girl under 10 years 20 years 4 and a half years Base 14 Indecent assault on a girl under 16 5 years 12 months - 15 Carnal knowledge of a girl between 10 and 16 years [s 48 of the Crimes Act 1958][4] 10 years [s 48(1) of the Crimes Act 1958] 4 years 1 year 16 Carnal knowledge of a girl between 10 and 16 years 10 years 4 years 1 year second trial – indictment number: y02852643.3 complainant: rr 1 Indecent assault on a person under 16 years [s 44 Crimes Act 1958][5] 5 years 6 months - 2 Indecent assault on a person under 16 years [s 44 Crimes Act 1958] 5 years 6 months - 3 Indecent assault on a person under 16 years [s 44 Crimes Act 1958] 5 years 3 years 1 year cumulative on the sentence imposed for Indictment Y02852643 Total Effective Sentence: 10 years 6 months Non-Parole Period: 6 years (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 275 days 6AAA Statement: N/A. Other relevant orders: Retention of forensic sample previously obtained pursuant to s 464ZFB(1) of the Crimes Act 1958; Registered as ‘registered sex offender’ with a reporting period for life pursuant to s 34 of the Sex Offenders Registration Act 2004. [2]Set by Act No 6231/1958
[3]Ibid.
[4]Ibid.
[5]Set by No 9509/1980.
The applicant has sought leave to appeal this sentence on three grounds:
1.The Learned Sentencing Judge erred in sentencing the Applicant with respect to Charge 13 (on Indictment No. Y02852643) on the basis that the Applicant was 20 years old at the time of offending;
2.The Learned Sentencing Judge erred in her approach to sentencing for the offences charged on both indictments that were committed when the Applicant was a child; and
3.The sentence imposed was manifestly excessive.
The applicant’s application for leave to appeal was referred by the Registrar to this Court for hearing and, if leave was granted, for the hearing of the full appeal.
The hearing of the application was commenced on 12 August 2013 whilst this Court was on circuit at the Latrobe Valley Court, and adjourned part heard so that medical issues, to which reference will be made hereunder, could be further explored. Documents as to the applicant’s health have now been obtained and analysed by both counsel. The examination of them has resulted in the production of a joint submission by the Crown and the applicant relating to the applicant’s medical condition. As a result no further oral hearing is now necessary or sought by either party. Both counsel are to be commended for their wise co‑operation with each other in pursuing the matter in the way that they have.
Circumstances of the offending
The offences charged on Indictment No. Y02852643 occurred between 1972 and 1979, when the applicant was aged between 14 and 20 years of age and the complainant was between 4 and 10 years of age. During this period the applicant lived with his mother, the complainant’s grandmother. The applicant committed the offences of which he was found guilty on occasions when the complainant stayed with her grandmother. They included masturbating the complainant, penetrating her vagina with his finger and his penis (including intra-vaginal ejaculation) and compelling the complainant to masturbate his penis. Some of the offences also occurred whilst the applicant was babysitting the complainant and her younger brother, and when he was living with the complainant and her family. There were serious breach of trust issues in every case.
The three charges of which the applicant was found guilty on Indictment No. Y02852643.3 arose from a single incident in 1989. The complainant was 6 years old and the applicant was 31 years old at the relevant time.
On this occasion the complainant was at a party with her mother and sister. The applicant volunteered to take her and her sister to a park, where he separated the two girls and assaulted the complainant by placing his hands in her under clothes and fondling her buttocks. He cupped her vagina with his hand and inserted his finger into it. Upon returning to the party which they had left, the complainant immediately complained to her mother about the applicant’s conduct. Again breach of trust issues were prominent.
The trial judge’s sentences
In her sentencing remarks the trial judge appropriately noted the applicant’s personal history, which included a minimal education, a work history of manual labour and complaints of having been the subject of physical abuse by other members of his family when he was young. Her Honour also noted a comprehensive psychological report of Dr Meera Aurora of 21 April 2012, produced at the request of the Court. She noted Dr Aurora’s assessment that on a commonly used psychological test, designed to try to predict the risk of sexual reoffending, the applicant was rated as ‘moderate to low’. The report also noted that there were a number of protective factors in the applicant’s favour such as his supportive relationship with his wife, the fact that he has had no convictions for sexual offences for some 22 years, and that there is no evidence of substance abuse or major mental illness, nor evidence of an attitude which suggested sexual violence. Her Honour largely accepted Dr Aurora’s report.
The trial judge also acknowledged that the applicant had never admitted his offending, that the victim in each case was extremely young and that significant breaches of trust were involved. Her Honour acknowledged that, in sentencing the applicant, she had to apply sentencing practices and maximum sentences which were applicable at the time of his offending. She also referred to the victim impact statements filed by each of the complainants.
Finally, and most importantly for present purposes, the sentencing judge referred to medical reports before her which described two medical conditions of the applicant which she regarded as relevant to the sentences she imposed. The first was that he suffered from cluster headaches to the extent that during his trial, at times, he required oxygen. The second was that he had undergone surgery for cancer of the mouth in March 2010, and at the time of sentence had developed another lump in his mouth of increasing size.
The grounds of appeal
In the course of her sentencing remarks the trial judge made reference to the fact that at the time of committing many of the offences for which the applicant was to be sentenced, he was a child himself. Her Honour regarded this as a ‘most powerful matter’, which must be taken into account in sentencing. However, although her Honour recognised this relevant sentencing matter, she mistakenly stated that the applicant was aged 20 when he committed the offence charged as Charge 13 on Indictment No. Y02852643. In fact, at the time of that offence the applicant was between 16 and 18 years of age. He was still a child.
The error of the trial judge with respect to the applicant’s age when he committed the offence charged as Charge 13 is accepted by the Crown as entitling him to leave to appeal. However the Crown did not go as far as conceding that the appeal should succeed. In its response to the applicant’s case it submitted that the judge’s mistake did not give rise to a miscarriage of justice. The sentence on Charge 13 was not excessive, argued the Crown. It pointed to a number of matters which, it submitted, should cause the court to dismiss the appeal. Reference was made to the applicant’s lack of remorse, the fact that, prima facie, the sentence imposed in respect of the second indictment should have been totally cumulative on those imposed on the first indictment by virtue of s 6E of the Sentencing Act, the applicant’s moral culpability and the fact that he continued to offend even when he reached the age of 31, suggesting that his earlier more juvenile offences were not merely youthful sexual experimentation.
Having regard to the emphasis placed by the trial judge on the age of the applicant at the time the offence charged in Charge 13 was committed, the sentence she imposed and the circumstances generally, it appears to us that the error made by her Honour did contribute to the magnitude of the term of imprisonment imposed in respect of that charge. It was too severe in the overall context and should be reduced.
As far as the second ground is concerned – that the trial judge failed to give sufficient weight to the applicant’s youth at the time of his offending in respect of the first complainant – we regard it as not sustainable. The offences were very serious, even if the applicant was young at the time. That ground and the third ground of manifest excess are not made out. However, as the applicant will now be resentenced on a different basis, his overall disposition will not be as onerous for him as it might otherwise have been.
Resentencing
The joint submission of the Crown and the defence dated 26 August 2013 raises serious medical issues, which should be taken into account in the resentencing exercise now required by virtue of the applicant’s success on ground 1. It refers to the fact that the applicant’s cancer may well have returned, that he is suffering from serious cluster headaches/migraines which continue to affect him and that, more recently, he has experienced episodes of chest pain. The joint submission also refers to depression, anxiety and stress, arising largely from the uncertainty of his medical condition. Counsel jointly submitted:
…that in any resentencing exercise the court can have regard to the particularly difficult medical situation the applicant has thus far encountered and is likely to continue to encounter whilst in custody.
This submission should be accepted and given effect to in the resentencing exercise. It is clear that because of his medical condition, the term of imprisonment which the applicant will still have to serve will be considerably more onerous than it would have been had he not suffered from the conditions referred to. In the circumstances, the sentence in respect of Charge 13 on Indictment No. Y02852643 should be reduced from four years and six months to three years; the same sentence as the trial judge imposed for the same offence, charged as Charge 10. The base sentence for the purpose of cumulation should now be the sentence of four years imposed in respect of Charge 15 on Indictment No. Y02852643. There should be cumulation of 6 months of the sentence of 3 years now imposed in respect of Charge 13 on that indictment, so that a total effective sentence of nine years and six months is substituted for the original sentence of 10 years and six months. A non‑parole period of five years and six months should be fixed with respect to that new sentence, thereby providing a longer period of parole than might ordinarily be the case if he is paroled at the earliest possible time.
Accordingly, the table in paragraph 2 should be amended to read as follows:
charge on indictment offence maximum sentence cumulation first trial – indictment number: y02852643 complainant: bt 3 Indecent assault on a girl under 16 [s 55 of the Crimes Act 1958][6] 5 years [s 55(1) of the Crimes Act 1958] 6 months - 4 Carnal knowledge of a girl under 10 years [s 46 of the Crimes Act 1958][7] 20 years [s 46 of the Crimes Act 1958] 12 months 3 months 5 Carnal knowledge of a girl under 10 years 20 years 12 months 6 months 6 Indecent assault on a girl under 16 5 years 6 months - 7 Carnal knowledge of a girl under 10 years 20 years 12 months 6 months 8 Indecent assault on a girl under 16 5 years 12 months 6 months 9 Carnal knowledge of a girl under 10 years 20 years 12 months 6 months 10 Carnal knowledge of a girl under 10 years 20 years 3 years 9 months 12 Indecent assault on a girl under 16 5 years 2 years - 13 Carnal knowledge of a girl under 10 years 20 years 3 years 6 months 14 Indecent assault on a girl under 16 5 years 12 months - 15 Carnal knowledge of a girl between 10 and 16 years [s 48 of the Crimes Act 1958][8] 10 years [s 48(1) of the Crimes Act 1958] 4 years Base 16 Carnal knowledge of a girl between 10 and 16 years 10 years 4 years 1 year second trial – indictment number: y02852643.3 complainant: rr 1 Indecent assault on a person under 16 years [s 44 Crimes Act 1958][9] 5 years 6 months - 2 Indecent assault on a person under 16 years [s 44 Crimes Act 1958] 5 years 6 months - 3 Indecent assault on a person under 16 years [s 44 Crimes Act 1958] 5 years 3 years 1 year cumulative on the sentence imposed for Indictment Y02852643 Total Effective Sentence: 9 years 6 months Non-Parole Period: 5 years 6 months Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 738 days 6AAA Statement: N/A. Other relevant orders: Retention of forensic sample previously obtained pursuant to s 464ZFB(1) of the Crimes Act 1958; Registered as ‘registered sex offender’ with a reporting period for life pursuant to s 34 of the Sex Offenders Registration Act 2004. [6]Set by Act No 6231/1958
[7]Ibid.
[8]Ibid.
[9]Set by No 9509/1980.
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