RSJ v The Queen
[2012] VSCA 148
•29 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0059 | |
| R S J | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WARREN CJ and REDLICH and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 April 2012 | |
DATE OF JUDGMENT: | 29 June 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 148 | |
JUDGMENT APPEALED FROM: | R v [R S J] (Unreported, County Court of Victoria, Judge Pullen, 15 February 2010) | |
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CRIMINAL LAW – Sentence – Multiple counts of incest and indecent assaults committed against daughter over period of 28 years – Worst category of offending – Guilty plea – Total effective sentence of 22 years and 5 months’ imprisonment with non-parole period of 18 years not manifestly excessive – Judge’s findings correct as to limited mitigatory relevance of appellant’s age, health and mental impairment – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
I have had the benefit of reading in draft form the reasons for judgment of Hansen JA. I agree with his Honour, for the reasons that he gives, that the appeal should be dismissed.
REDLICH JA:
It was accepted by counsel for the appellant that this was a unique worst category case which required a very substantial sentence notwithstanding the age of the appellant at the time of sentence. As a consequence of the imposition of the sentence of 22 years and five months’ imprisonment with a non-parole period of 18 years, the appellant will not become eligible for parole until his 84th year. Thus, his primary argument that the sentencing judge had fallen into error in not giving the age of the appellant ‘great weight’. Such an approach was said to be inconsistent with the approach of the sentencing to offenders of advanced years propounded in R v RLP.[1]
[1][2009] VSCA 271, [39] (‘RLP’).
It was recognised in RLP that the advanced age of an offender may be a weighty consideration where a sentence is likely to require the offender to spend the whole or very substantial portion of the remainder of his life in custody. That consideration may require more punitive sentencing considerations to yield some ground to the need to exercise compassion to take account of the prospect that the offender may not live to be released. But as RLP states, just punishment proportionality and general and specific deterrence remain primary sentencing considerations. The sentencing judge was evidently conscious of these competing sentencing principles. Her approach reflects the fact that the weight to be given in the sentencing calculus to an offender’s advanced years and ill health will diminish as the objective gravity of the offending conduct increases. Consequently, in a case where the offending conduct is so grave as to fall within the worst category of case, it
was open to the sentencing judge to attribute to these mitigating factors the weight that she did. For these and the reasons given by Hansen JA, I agree that the appeal should be dismissed.
HANSEN JA:
The appellant, who is now aged 69, pleaded guilty in the County Court and, following a plea in mitigation, was sentenced on 15 February 2010 as follows:
Count Offence Maximum penalty Sentence Cumulation 1 Indecent assault of child under 16[2] 5 years
10 months 4 months 2 Indecent assault of child under 16 5 years
10 months 4 months 3 Incest[3]
(rep count)20 years 3 years 1 year 4 Incest
(rep count)20 years 5 years 2 years 5 Incest
20 years 4 years 1 year 6 Incest
(rep count)25 years 6 years BASE 7 Incest 25 years 5 years 2 years
8 Incest
25 years 5 years 2 years 9 Incest 25 years 5 years 2 years
10 Incest
(rep count)25 years 5 years and 6 months 2 years and 4 months 11 Incest
(rep count)25 years 4 years 2 years 12 Incest
25 years 3 years 1 year 13 Assault[4]
5 years
1 year 5 months Total Effective Sentence: 22 years and 5 months’ imprisonment Non-Parole Period: 18 years Pre-sentence Detention Declared: 367 days [2]Crimes Act 1958 s 55.
[3]Ibid s 44.
[4]Ibid s 320.
The appellant was sentenced as a serious sexual offender in respect of counts 3-12 pursuant to s 6F of the Sentencing Act 1991. Pursuant to s 34 of the Sex Offenders Registration Act 2004 the applicable reporting period is the remainder of his life. There was also an order pursuant to s 464ZF of the Crimes Act 1958 for the provision of a forensic sample. Finally, the judge declared pursuant to s 6AAA of the Sentencing Act that the sentence that would have been imposed if convicted of the offences after trial would have been 27 years’ imprisonment with a non-parole period of 23 years.
The appellant now appeals against sentence, relying on the following grounds:
1. The total effective sentence and non-parole period are manifestly excessive in that they offend the principle of totality having regard to the appellant’s age, ill-health, life expectancy and the burdensome circumstances of his imprisonment.
2. The sentencing judge erred in her approach to the relevance for sentencing of the appellant’s age, ill-health and limited life expectancy.
3. The sentencing judge erred in finding that the appellant’s impaired mental functioning had no mitigating relevance to the issues of moral culpability, general deterrence and specific deterrence.
Counsel argued grounds 1 and 2 together; it is thus convenient to deal with them together. Ground 3 is a stand alone ground.
The facts and circumstances of the offending are of such a despicable and deplorable nature that the case falls in the worst category of such cases. Consider this: the offences were committed over a period of 28 years against the one complainant (‘M’) who is the appellant’s eldest daughter; she was the eldest of six children of the appellant’s marriage. The offending commenced in 1977 when M was aged 13 and the appellant was 34, and concluded in 2005 when M was aged 40 and the appellant was 62. The offending was sustained, repeated, accompanied by violence and threats, and occurred despite the complainant’s ongoing disclosures and pleas to social workers and others. As a result, the complainant bore four children to the appellant, in 1990, 1998, 2000 and 2001. The youngest child died in infancy. The eldest two children suffer from intellectual disabilities, while the third child receives ongoing speech therapy and has difficulty with social interaction.
The judge found it ‘difficult to find words to adequately and appropriately describe [the appellant’s] ongoing offending against’ the complainant. That is not surprising having regard to the depraved nature of the appellant’s conduct towards his daughter, in complete breach of trust and any principle of human decency, and the degradation of the complainant who must live with the horror for the rest of her life. Her Honour described the nature and circumstances of the offending as follows:
10Count 1 related to the commencement of your offending, on an occasion in 1977 when M was just 13 years of age. She came home from school and you told her to get into your bedroom and undress. M did as she was told because you told her if she did not she would get into trouble and that you would scream at her. You told her to lie on the bed and when she did so you touched her breasts with your hands and kissed her on the lips. M was very afraid of what was happening and thought (as a result of her previous experience in conjunction with this one) that all men must be like this. You said to her, “You’re damaged goods and no one will want you.”
11You thus began your sexual offending against M often involving threats. You showed total disregard for your daughter, reflecting your complete lack of empathy for her.
…
13Turning to Count 2. Approximately one month later you grabbed M on her bottom and breasts. You did this in public on a number of occasions, including in front of her friends. You touched and kissed her on almost a daily basis. She told you she did not like what you were doing but you told her that if you could not have her no-one else would and that you could do whatever you wanted. This unfortunately you did, displaying your total disregard for M’s feelings. You were very domineering. As a result of your behaviour, M stopped having her friends over and became very isolated.
…
15At the age of 14 M moved into a house in Preston with her mother and two brothers. They lived at that address for a month, during which time she did not see you. However, her family then moved to a flat in Port Melbourne and not long after that you went to live there as well. At that time M was just 14 years of age.
16Almost immediately you resumed your almost-daily offending of her, grabbing her throat, pushing her against the wall, and touching her bottom and breasts in front of others. You prevented her from speaking to males. M, in her desperation to get away from you, reacted by continually running away from home, sometimes living on the streets and sometimes managing to get hostel accommodation. She was a young girl, without support, particularly from you, her father.
…
21Turning to Count 3. Approximately a month after M returned home you again started physically, sexually and emotionally abusing her. You would get very drunk and get physical with her, forcing her to submit to sexual intercourse with you. Count 3 represents the first occasion that you forced your daughter to submit to penile/vaginal intercourse during the dates alleged, being 28 September 1980 and 28 February 1981, that is, over a period of approximately five months.
22Your daughter told you she did not want to have sex with you, but you told her “You’ll do as I tell you to do. You’ll do what I want.” Your daughter did not argue with you as she was scared of you. This conduct occurred on numerous occasions when you had been drinking.
23After a couple of months and during your conduct, M ran away again. She was suffering depression and was on medication for epilepsy. When she ran away she tried to overdose on her medication and was hospitalised at the Prince Henry’s Hospital Emergency Department for a period of three days. She told her doctor and social worker about what had been happening to her, what you had been doing to her at home. The social worker tried to find her alternative accommodation, but none was available, and eventually M again returned home. Despite you being aware of her recent history, your sexual abuse of your daughter resumed.
24It was only about a week after M returned to the family home that you again started to push her around and sexually touch her. You made her have sexual intercourse with you on approximately a daily basis, sometimes twice daily. You emotionally abused her and put her in fear of what you would do if she tried to stop you abusing her. This count, over a five month period, represents approximately 70 occasions on which you engaged in non-consensual intercourse with your daughter, that is approximately three times a week. M was under 18 years at all times during this period of abuse.
…
31During this time alleged in Count 4 the family moved to various houses in various suburbs of Melbourne. Your sexual abuse of your daughter occurred at each of those addresses, sometimes on a daily basis. Count 4 represents approximately 700 occasions during that period on which your daughter was forced by you to submit to sexual intercourse. That is an average of twice a week.
…
34Turning to Count 5. In February 1990 you forced M to submit to sexual intercourse with you. As a result M became pregnant to you when she was then 25 years of age. You continued to physically abuse her during her pregnancy, often calling her a “slut” and a “worthless piece of shit”. You refused to admit the child she was carrying was yours. You got your friends to watch over her when she was outside the house, effectively to spy on her. M was in many respects your prisoner, despite the lack of bars or restraints.
35Her son, [X] was born on … November 1990. He suffers from an intellectual disability and currently attends a special educational facility.
36You ceased your abuse of your daughter for about a month after X was born, however, then resumed the abuse as before. You forced M to submit to sexual intercourse on a regular basis and this again developed into a daily occurrence at the family home. This forms part of Count 4, which is a “between date” offence up to 4 August 1991.
37In approximately 1992/1993 M commenced [voluntary work], which she did for six years. She was unable to move out of the home because you threatened you would kill her if she did. You prevented her dating other men and told her she was yours.
38Turning to Counts 6, 7 and 8 involving offending between 1 September 1997 and 30 April 1999, a period of approximately 20 months.
…
40In approximately January 1998 you forced M to submit to sexual intercourse and as a result she became pregnant. This is Count 7. You continued to sexually abuse her throughout her pregnancy. Her third son, [Y] , was born in November 1998. He was born with an enlarged liver and an unattached kidney and required surgery at the age of nine weeks to remove that kidney. He has an intellectual disability and an IQ of 55. He currently attends a special school.
41Two months after Y was born you, yet again, resumed your physical and emotional abuse of M. You continued to have sexual intercourse with her, including at times when her mother was present in the family home.
42In approximately April 1999 you forced M to submit to penile/vaginal intercourse and as a result of that offending your daughter again became pregnant to you. This is Count 8 on the presentment. You continued to have non-consensual sexual intercourse with her throughout that pregnancy. [Z], her fourth son, was born in January 2000. Although he does not have any significant health problems, he requires speech therapy at school and has some issues with his social interactions.
…
44Your daughter throughout this period suffered depression and had constant thoughts of suicide.
45Count 6 is representative of approximately 400 occasions upon which you had penile/vaginal sex with your daughter, who submitted because of duress and fear of you, an average of twice a week during that period.
46Count 9 referred to a period of one month in October 2000. Again you had non-consensual penile/vaginal intercourse with your daughter. Once again as a result M became pregnant. … [The baby] was born on … 2001 at 34 weeks. From the time of her birth she suffered extremely severe health difficulties and was immediately placed on a ventilator in the newborn Intensive Care Unit. She had respiratory failure, severe chronic lung disease, an abnormal airway, agenesis of the corpus callosum, hydrocephalus, lissencephaly and talemphany which is twisted feet. Tragically she died on 26 September 2001 at the age of 11 weeks. During [the baby’s] short life your daughter stayed at Ronald McDonald House. On a couple of occasions you also stayed at that house. Your daughter recalled that those occasions were the first occasions on which you “left her alone” and did not have sexual intercourse with her.
47Turning to Count 10. After [the baby’s] death your daughter moved back to the family home, now in Moe, and you again sexually abused M on a regular basis. Count 10 constituted the first occasion on which you forced her to submit to sexual intercourse with you at the family home after the death of [the baby]. Count 10 is representative of approximately 120 occasions on which you forced M to submit to sexual intercourse with you while she lived at the Moe address, that is approximately twice a week.
…
49In 2001 M told a counsellor, Ms ‘S’, from the Epilepsy Foundation about your conduct towards her. The counsellor assisted M to make an application for separate housing. You did not like that and told your daughter that it should be you and her and the children who were moving to a new house.
…
51In 2002 M attended CASA for help in relation to your offending conduct. As a result, a police officer and child-protection worker attended at your home. However, M did not make a formal statement in relation to your abuse of her at that time, and also denied you were the father of her children, as she was, understandably, frightened her children would be removed from her.
52Notwithstanding this, with the assistance of Ms ‘S’, M moved out of the family home in late 2002, early 2003, with her three youngest sons and her brother, to Morwell. You and your wife moved to Newborough.
53Not deterred by the separation of addresses, your offending continued.
54Count 11 referred to a period of approximately two years and one month, from 2003 to 2005, when M had left your home. You often visited her and even stayed on various pretexts at her house in Morwell. Alternatively, you asked her to come to your house with her children. On those occasions you would have sexual intercourse with her.
55Count 11 represented the first of the occasions on which you forcibly had penile/vaginal intercourse with her at M’s Morwell home.
56You persisted in your sexual offending against your daughter until and including January 2005. Count 11 represented approximately 25 occasions on which you forced M to submit to sexual intercourse with you, that is approximately once a month.
57Counts 12 and 13 referred to events in January 2005. In January 2005 you went to M’s home. On that occasion you were drunk. Your daughter’s sons and brother were asleep in the house. Your daughter was in her bedroom, putting away washing, wearing a nightie and underwear underneath. You entered her room and grabbed her breast. She pushed you away. You told her “I’ll teach you to knock me back”, and grabbed her around the throat, pushing her against a wall. You then punched her in the stomach three times with your right fist, which was clenched. M kneed you in the groin and you backed away. However, you came back at her again, not deterred, and this time overpowered her, at which point she submitted. You inserted your penis into her anus. This was very painful and your daughter told you that you were hurting her. You did not stop.
The following month, the complainant told her counsellor, Ms S, about this offending, and moved with her children to a secret address. She made a statement to the police in June 2005 but requested they not investigate the matter as she feared the appellant and his friends. The complainant took out an intervention order against the appellant in 2007. In 2008, she requested the police to investigate her allegations and a forensic sample was taken. The appellant was interviewed by police in July 2008. He denied the offending. Testing of the forensic sample supported the appellant being the father of the above three boys. When the police served the intervention order on the appellant in 2009, he made degrading remarks about the complainant and said that if he found her he would kill her.
Despite this attitude, the appellant pleaded guilty, indicating his intention to do so at committal on 14 July 2009, although he sought to minimise his role when discussing the matter with a psychologist and psychiatrist, including saying that the complainant effectively would not leave him alone.
Counsel on the plea did not seek to address the circumstances, or minimise the objective seriousness, of the offending. Rather, in seeking moderation in penalty he focussed on the appellant’s personal circumstances, which included his age, a history of alcoholism leading to alcohol-related brain injury, a significant personality disorder, depression, suicidal tendencies, and admission to psychiatric hospitals for electro-convulsive therapy in the 1970s, and a medical history including an operation in 2009 to remove a tumour from the lung. In seeking support for his submissions counsel called a clinical neuropsychologist, Jane Lofthouse, and a psychiatrist, Dr Danny Sullivan. No other evidence was called and no testimonial from any person was tendered. It is thus in the reports and evidence of Ms Lofthouse and Dr Sullivan that reference is made to matters personal to the appellant. The judge made extensive reference to these matters in her sentencing remarks and it is unnecessary to set out all that is referred to. The following will suffice.
Ms Lofthouse saw the appellant on 23 November 2009 and provided a report dated 29 November 2009. She was asked to ascertain the presence (or not) of intellectual impairment, and to comment on the appellant’s capacity to make reasoned decisions and understand the consequences of his actions. Subsequently, having been provided with further medical reports, including psychiatric reports from several institutions dated between 1969 and 1974, with a request for further comment on the appellant’s intellectual function, she provided a supplementary report dated 19 January 2010 as an attachment to her earlier report.
Dr Sullivan interviewed the appellant on 18 November 2009 and provided a report dated 23 December 2009. He had been provided with Ms Lofthouse’s report dated 23 November 2009.
In her sentencing remarks her Honour noted that the appellant’s counsel had submitted that the appellant had limitations regarding his memory, for the purpose of being able to provide a history. It was thus that counsel relied on that obtained by Ms Lofthouse and Dr Sullivan. Her Honour set out the appellant’s background as follows:
75You were born in Carlton and are one of six children, with three brothers and two sisters. Your father died in the 1970s. You described your father as “a bastard to me”. You were singled out by him for punishment including beatings, and that at five you believed you had been admitted to hospital in a coma following a beating by your father. Your mother died in 1956 of double pneumonia and you described her as “terrific”.
76You attended Mordialloc State School and managed adequately, although struggled with some subjects. You grew up in Aspendale but in 1956 the family moved to West Ivanhoe and you then attended Heidelberg Technical College for a few months, but left because you “hated it”. You said you had never been able to mix and that this had persisted until your remand in custody on these matters. You said you were relating well with other prisoners at the Melbourne Remand Centre.
77After leaving school in the late 1950s you commenced work and did a number of odd jobs. Your most recent job was at the South Melbourne Council involved in garbage collection. This ended in 1991 when you left due to your problems with alcohol. Since that time you have only had occasional work.
78You married in 1964 and described that marriage in a negative way. You had been married for 45 years. You claimed you had never been able to argue with women and had not been able to assert yourself. You lost contact with the remainder of your family when you, your wife and children moved from the Heidelberg area.
79Since 1996 you had been on a Disability Support Pension as a result of your smoking and alcoholism. In your earlier life you said you enjoyed boxing but had no other hobbies.
80Turning to your medical history. You had recently undergone surgery in custody to have part of your lung removed for lung tumours. You further described that you have had blocked leg arteries and required three operations at the Alfred Hospital. You reported some concern about intermittent chest pains which had been present for many years, although stated you were unaware of any cardiac problems. You are not currently taking medication but in the past had been prescribed medication for cholesterol.
81You stated you were not taking medication because of despair about your future.
82Turning to your psychiatric history. You reported you had been hospitalised at Plenty Hospital and possibly also at Mont Park and Larundel Hospitals in the 1960s. You said that occurred a few times for periods of up to six months and you were treated with a range of medications, including Largactil and also with electro-convulsive therapy. You reported you tried to commit suicide a few times, taking overdoses and cutting your wrists. You reported that you recurrently suffered from depression. At the time of preparation of his report, Dr Sullivan had access to various hospital records pursuant to subpoenas issued in this matter.
83Turning to your substance-use history. You reported commencing alcohol use at the age of 17 and more regularly consuming from the age of 20. You, however, denied alcohol was a significant problem for you, stating you had never fallen over, nor behaved poorly when drunk. For a more accurate assessment of your drinking pattern in the 1960s and 1970s, Dr Sullivan had recourse to the records provided pursuant to subpoena.
84You denied ever using cannabis, stimulants, solvents, or other medications, although you said you may have used anabolic steroids whilst boxing in your youth.
85Dr Sullivan referred to your forensic history. You have admitted one prior court appearance in 1980 for the offences of exceeding prescribed concentration of alcohol and being an unlicensed driver. You were convicted and sentenced to pay a fine and disqualified from obtaining a licence for two years. I state for the purposes of sentencing you on the counts before me, I do not regard that appearance as relevant to sentence, although it confirms your alcohol use at that time.
86Whilst awaiting sentence for these matters you have been transferred from the Melbourne Remand Centre to Port Phillip Prison, where you are maintained in a protection unit within that prison. You were concerned other prisoners had made threats against you. You felt safer at the Melbourne Remand Centre.
87Turning to your psychosexual history. You reported that through your life you have had approximately twenty sexual partners, all female. You said you were uncertain how you commenced having sexual interaction with your daughter but said you always loved her. You stated, “She followed me around.” You said your marriage had been “not full of love”, and that in your 40s you commenced having sexual intercourse with your daughter.
88You stated your offending began during a time which you described as “bad years for me”.
89You stated that you tried recurrently “not to do this”, and had tried to stop, but “she said no”. I discussed these statements with your counsel during the course of the plea hearing and shall return to this later in these sentencing remarks.
90You said you were uncertain why your daughter had not reported your offending earlier. You denied you used any violence to stop her from telling other people. You told Dr Sullivan “I never said anything nasty.” You reported that most of the sexual intercourse was vaginal but it was possible on the last occasion you had attempted to have anal intercourse.
Her Honour then made extensive reference to Ms Lofthouse’s assessment, to the historic mental health records, to more recent medical records and Dr Sullivan’s opinion.
Ms Lofthouse assessed the appellant as being in the average range of pre-morbid intellectual functioning and his intellect in the borderline range. A pre-morbid assessment of average, compared to a current assessment of borderline indicated a decline in intellectual ability greater than would usually be expected. That was consistent with his history of alcohol abuse, that is, it indicated alcohol related brain injury.
In her sentencing remarks her Honour referred to Dr Sullivan’s evidence as follows:
106In his opinion and recommendations Dr Sullivan noted that your childhood was marked by paternal alcohol abuse and violence. The death of your mother in childhood, and your overall upbringing, was later considered responsible for some maladjustment by psychiatrists who had seen you over your early years. In his opinion you had a significant personality disorder. You had a history of chronically depressed mood, aggression, truculence, self harm, longstanding relationship difficulties, impulsivity and substance abuse. This disorder had attenuated over time but had been relatively persistent and in the opinion of Dr Sullivan would continue to be so.
107Dr Sullivan further noted you had a long history of alcohol abuse or dependence and that you exhibited significant cognitive impairment consistent with long-term alcohol abuse. There was, however, no indication you had a pre-existing cognitive impairment. He stated, “There are no features of the alleged offending suggesting that cognitive impairment was causally associated with his sexual abuse of his daughter.”
108The degree of executive dysfunction described would not, in his opinion, constitute the sort of lack of control relevant to this offending. Nor could Dr Sullivan find any evidence of intellectual or cognitive functioning which so impaired your understanding of your actions that might be seen by the court as having somehow reduced culpability. Nor was there evidence of signature cognitive impairment apparent at the time of offending which could have accounted for it.
109Dr Sullivan noted that some of your offending was likely to have occurred when you were intoxicated, that your intoxication may have impaired your judgment but “certainly would not have prevented him being aware of the wrongfulness of his actions as alleged.”
110In his opinion it was probable that you had also experienced recurrent depression, although it was not clear that there was any causal association between your depression and your offending. However, in prison your mood had worsened and Dr Sullivan considered such was likely to render your incarceration more onerous than for an ordinary person.
111Dr Sullivan stated there was no indication your depression would be associated with the sexual offending as described.
112Dr Sullivan stated the persistence of your offending was indicative of the primal causal association being your personality structure. This, however, he said, had not resulted in dis-inhibition but may have impeded your ability to make calmed, reasoned decisions.
113Dr Sullivan noted there was no history of sustained treatment for mental disorder or personality dysfunction since the mid-1970s. There was no indication of psychotic illnesses at any stage in your life and there was also no indication you had features of a paraphilia. No other information suggested you had sexual arousal to children, or other forms of sexual deviance.
114In his report he concluded you had a range of physical illnesses which would impact upon your mortality and wellbeing. It was beyond his expertise to prognosticate on those. However, he considered that the conditions were likely to restrict your lifespan and may result in debility and possibly reduce your independence in the future. In addition, you appeared hopeless abut the future and reluctant to take medications.
115In his opinion you presented as low-risk of further offending. Again he noted, however, that you had minimised your offending and denied you threatened your daughter. You appeared surprised and angry that she had sought criminal charges. Those cognitive distortions, he considered, would be addressed in treatment through the Sex Offender Program whilst you were in custody. In addition, you would benefit from an ongoing opportunity for psychological support and if returned to the community you should be abstinent from alcohol.
116Dr Sullivan further elaborated in his evidence that in his opinion your personality disorder was not really a mental illness but reflected poor coping throughout your life over various facets of it. That your significant alcohol use had resulted in a degree of cognitive impairment. That your life reflected a pattern of poor coping, psychiatric admissions, substance abuse, and threats of harm to yourself and to others. That your offending was, he thought, associated with your personality disorder, the causal association was not a direct link to your offending. Your personality structure was central and your depression and alcohol were related issues. With reference to dis-inhibition, which may have impeded your ability to make calm reasoned decisions, he stated it was difficult to say at what time your difficulty to make such decisions existed when they were present and when they were not. He was unable to link these to any of the episodes of your offending.
117In cross-examination Dr Sullivan stated the nature of your personality disorder would, at times, make it difficult for your to make calm, reasoned decisions, and at times not so, but he could not tell which of those times historically were times when you were impaired and when you were not. That there may have been episodes over the 27 to 28 year period of offending at which your decision-making was more impaired than at other times but it would not have accounted for totality of your offending.
118Turning to your minimisation of your sexual offending against your daughter. Your minimisation regarding your alcohol abuse, and further, attributing fault to your daughter was, in his opinion, a fairly typical sort of cognitive distortion. Self-deceptions were not unusual. Such may have allowed you to continue with your behaviour, even if you knew it was wrong.
119Regarding your history of depression, Dr Sullivan considered your type of personality disorder would be predisposed to depression.
Her Honour noted that the appellant’s counsel conceded that on the evidence it was difficult to find a causal link between diagnosis and the offending. There was ‘not much by way of expert evidence to assist me’, counsel said.[5] In essence, however, by reference to the appellant’s personality disorder, depression and alcoholism being features of the appellant’s life, although not causing the offending, counsel sought to avoid ‘an over finding of a knowing and able man conducting these offences’.[6] That is, counsel submitted that the appellant’s above features should be seen as ‘to some extent leading [him] to not making calm and rational decisions’.[7] Counsel submitted that this bore on the appellant’s moral culpability and that there should be ‘some moderation’ of general and specific deterrence. Referring to R v Howell[8] on which the appellant’s counsel relied, her Honour concluded however that the evidence did not support a finding that the appellant was deprived of rational judgment at the time of the offending.
[5]Reasons [140].
[6]Reasons [144].
[7]Reasons [141].
[8](2007) 16 VR 349, 354-5 [17] and 356 [20].
Her Honour made the following further findings:
1.As conceded by the Crown, proposition 5 in Verdins was engaged.
2.However, the evidence did not support moderation of the appellant’s moral culpability, general or specific deterrence.
Her Honour found:
165The difficulty in my opinion based on the material, is that your offending given the frequency and duration of it, cannot be explained or attributed to any particular personality disorder or the combination. That whilst your disorder, depression and alcohol use may, I stress may, have on occasions been present, such did not explain the totality of your offending.
166I am unable on the material to do more than speculate on the possibility that you may have been unstable at the time of your offending, such a conclusion is far from conclusive.
167In my opinion, putting aside proposition 5 of R v Verdins, a reduction in your moral culpability, general or specific deterrence does not apply when sentencing you.
Her Honour then dealt with submissions that the sentence should allow the appellant some prospect of life after prison, and as to his health and ongoing depression. Her Honour noted that the appellant conceded that he could be managed appropriately in custody. Her Honour said that she took the appellant’s age into account ‘to some extent in his favour’ in determining the appropriate sentence. But given the objective seriousness of the offending, she did ‘not give this great weight’.[9]
[9]Reasons [177].
Her Honour then referred to the appellant being in protective custody, as he then was. While the future prospect of such detention was a factor relevant to sentence,[10] it was, her Honour noted, unclear what his status would be following sentence. Thus it was not a factor of significant weight in arriving at the sentence.
[10]R v Males [2007] VSCA 302.
Her Honour did however accept that the appellant had not previously been in custody and that given his health difficulties custody ‘will be arguably more difficult for you than younger and more able prisoners’.[11]
[11]Reasons [181].
As to the effect of the guilty plea and remorse, her Honour found as follows. She took into account the fact of the plea and when it was made or indicated, the consequent saving of time and the cost of a trial and in particular that he had avoided a situation where his daughter would have to give evidence.
Her Honour further accepted that the appellant’s preparedness to plead guilty indicated ‘some remorse’ for his actions, but there were ‘troubling aspects’ which gave cause for concern as to whether the appellant had remorse for his offending.[12] They were the denials in his record of interview and that he minimised his offending to Dr Sullivan.
[12]Reasons [187].
Then, as to prospects of rehabilitation, her Honour considered it was difficult to be optimistic. While Dr Sullivan had considered the appellant to be at low risk of reoffending, he had also noted that the appellant had minimised his offending and denied threatening the complainant. Her Honour stated that in fixing the sentence she sought to maximise such chances of rehabilitation as there may be, but a number of issues needed to be addressed, and the reports of Ms Lofthouse and Dr Sullivan would be provided to the Parole Board.
Her Honour then referred to aggravating features of the offending, to the representative counts, and to the totality principle. She then referred to the age and health of the appellant as mitigating factors bearing on general deterrence and the burden of imprisonment.
Then, after referring to ss 6B, 6D and 6E of the Sentencing Act and stating that she would not impose a disproportionate sentence, her Honour passed sentence. It should be mentioned that in the course of her reasons her Honour also made reference to a victim impact statement provided by the complainant.
Shortly stated, her Honour’s reasons, extensively expressed, reflect a careful and thorough consideration of the appellant’s submissions and of the matters otherwise relevant to sentence.
It is now convenient to turn to the grounds of appeal, commencing with ground 3.
As to this, counsel commenced by referring to her Honour’s summary of the evidence and submissions relating to whether the appellant’s moral culpability and the weight to be accorded general and specific deterrence were reduced by reason of his impaired mental functioning;[13] her Honour’s findings are set out above. Counsel complained that in so finding her Honour failed to refer to evidence of Dr Sullivan about the connection between cognitive distortions characteristic of personality disorders of the type suffered by the appellant and persistence in wrongful conduct.
[13]Reasons [156]-[167].
The evidence on which this submission was based was given in cross-examination concerning the appellant having attributed fault to the complainant. Dr Sullivan was asked if that was significant minimisation of his offending, and he said:
Yes, it’s a fairly typical sort of cognitive distortion that we see in sexual offenders, and those cognitive distortions involve aberrant ways of thinking which one could regard as self-deceptions, which might permit a person to continue with a course of action despite an awareness of its wrongfulness, and those sort of self-deceptions include deceptions abut the sexual nature of children, or that something is permissible, or that the other person appears to be enjoying it, so I have put those into the report, because to me they are indicative of the thinking processes which may have permitted [the appellant] to continue a course of action despite an awareness of its wrongfulness.
They are separate from a cognitive impairment? --- They are not part of a cognitive impairment. When I describe a cognitive distortion it is a, we all exhibit cognitive distortions, when we drink too much we think we are managing sufficiently, despite the fact that our friends might think otherwise. We all have varying degrees of self-deceptions which are adaptive and useful.
Counsel submitted that the persistence of the appellant’s conduct in the face of the complainant’s protests was important and marked this case out from other serious incest cases. In that circumstance the presence of mental impairment which obscured the appellant’s own perception of his conduct was an important matter to consider. It was further submitted that her Honour gave no weight to the inescapable conclusion that at least at some times during the offending period the appellant’s mental functioning would have been seriously compromised. It was thus an error to find that impairment had no relevance to sentencing.
The submission must be rejected. The first thing to note is that it does not question the evidence, and findings, as to a lack of a causal link between the appellant’s diagnosis and the offending. Secondly, in addition to the very extensive references to the evidence of Dr Sullivan and Ms Lofthouse, which reflected careful attention to all that they had said, her Honour made specific reference to the above evidence of Dr Sullivan,[14] and counsel did not suggest that her Honour mis-stated the evidence. Further, I do not accept that in later summarising Dr Sullivan’s evidence her Honour overlooked or disregarded this evidence. Thirdly, it is to be noted that Dr Sullivan said only that the appellant’s thinking processes may have permitted him to continue a course of action despite an awareness of its wrongfulness. Fourthly, her Honour considered the application of, and made findings as to, the first four propositions in Verdins in light of the evidence. Those findings were open on the evidence and correct in my view. Fifthly, the evidence of Dr Sullivan showed that it was entirely speculative whether at the time of any of the offending the appellant’s ‘mental functioning’ was so ‘seriously compromised’ as to qualify her Honour’s findings.[15]
[14]Reasons [118].
[15]Transcript 24-5, 29 and 30.
Having regard to all of these matters it cannot be said that her Honour failed to deal with the aspect of delusion and thus fell into specific error. Accordingly, ground 3 is not made out.
That leaves for consideration grounds 1 and 2. As mentioned earlier, they were argued together and may conveniently be dealt with together.
A few observations may be made at the outset. First, ground 1 contends that the total effective sentence and the non-parole period offend the principle of totality. The ground does not question the individual sentences. Further, the appellant’s written and oral submissions concentrated on the total effective sentence rather than the non-parole period, doubtless on the basis that any reduction in the total effective sentence would result in a reduction of the non-parole period.
Secondly, grounds 1 and 2 identify several matters — age, ill-health, life expectancy and the burden of imprisonment — which were relevant to, and were considered by her Honour in arriving at, the instinctive synthesis. It is axiomatic that the weight to be given to these, and other relevant, matters was a matter for her Honour in the light of the evidence.
Counsel first addressed the age of the appellant, which was 66 at the time of sentence. This was to be considered with his ‘health problems which limited his life expectancy and currently impacted on his quality of life’.[16] Further, imprisonment would be more burdensome for him. It was submitted that despite these matters the sentence imposed was substantially longer than any imposed on an offender of the appellant’s age and ill-health for sexual offending, even offending in the worst category of case.
[16]Appellant’s written case, para 28.
As that submission indicates, counsel accepted that the appellant’s offending was in the worst category.
Further, counsel accepted that comparison to other cases was of no or limited assistance, bearing in mind the altogether shocking nature of the present offending, and that in truth there was no like case.
Under cover of ground 2 the appellant submitted that her Honour fell into error in relation to the matters mentioned, as follows.
First, it was submitted that her Honour wrongly approached the consideration of age, health and life expectancy. While her Honour had regard to the decision of this Court in R v RLP,[17] it was submitted that she had overlooked the propositions stated in paragraph [39] of the Court’s judgment. It was further submitted that her conclusion not to afford the appellant’s age ‘great weight’ was inconsistent with those propositions.
[17][2009] VSCA 271.
I reject this submission. In her sentencing remarks her Honour said that she had read and took into account the reference in RLP to the relevance of age and ill-health when sentencing, and in particular paragraphs [32]-[38]. It is those paragraphs where the Court discussed, by reference to authority, the approach to age and ill health of an offender in relation to general deterrence and the possible mitigation of sentence. The paragraph to which counsel refers is the next and final paragraph in that section. In essence, if not completely, it summarises or reflects the prior discussion, which doubtless may have led her Honour’s reference to stop at the prior paragraph. Strictly speaking, it was not essential that her Honour refer to that final paragraph, and I certainly do not accept that her Honour overlooked it. The suggestion that she did is fatuous, in my view. Moreover, the discussion in the paragraphs her Honour identified was reflected in her approach to the considerations and effect of age and ill-health. I do not accept that her Honour approached the consideration of those matters on an erroneous basis. In my view in the circumstances her conclusion that the appellant’s age not be given great weight was not merely open, but correct, in light of the objective seriousness of the offending.
Counsel also specifically attacked her Honour’s finding as to the appellant’s health. Her Honour found[18] that the appellant was not ‘currently suffering physical health problems’. It was open on the evidence for her Honour to be so satisfied. It will be noted that her Honour there referred to ‘current’ and ‘physical’. Hence, the earlier reference[19] to ‘health difficulties’ in relation to the burden of custody was not inconsistent and reflected that her Honour did take the appellant’s state of health into account in mitigation of sentence. Further, elsewhere in her reasons her Honour referred to the appellant’s health, and she is to be taken as having borne in mind the relevant evidence in formulating her reasons.
[18]Reasons [220].
[19]Reasons [181].
The appellant’s submissions on these matters, and the matter of the burden of imprisonment, really come down to a contention of a failure to afford due weight to relevant matters. The submission is without substance. It was essentially a matter for her Honour to determine the weight to be given to the relevant sentencing considerations in passing sentence and arriving at the total effective sentence to be imposed. As to that, her Honour was required to impose the sentence that represented that which was just and appropriate in the circumstances.
Of course, as mentioned, this case fell in the worst category of case. Further, the appellant was sentenced as a serious sexual offender and the protection of the community was the principal purpose for which sentence was imposed.[20] Then, s 6E required that unless otherwise directed by the court, every term of imprisonment be served cumulatively on the other. In the orders for cumulation her Honour moderated the operation of this provision. Nevertheless the requirements and policy of ss 6D and 6E must be observed,[21] as her Honour noted. These provisions have the effect of modifying, but not excluding, the application of the totality principle.
[20]Sentencing Act 1991 s 6D.
[21]R H McL v The Queen (2000) 203 CLR 452, 476-7 [76].
In my view, regarding all the circumstances of this case, the total effective sentence arrived at by the orders for cumulation was open to be imposed by her Honour in a sound exercise of the sentencing discretion. Indeed, even if error had been established in the sentencing process, I am of the view that no different sentence (and non-parole period) should be passed.
For these reasons, the appeal should be dismissed.
Before parting with the case it is necessary to refer to one further matter. That concerns the circumstances of protective custody in which the appellant is presently serving his sentence. They are circumstances of significant confinement. While management in the prison system is a matter for the authorities, the present arrangements are concerning and would not seem justly sustainable over time, particularly bearing in mind that the appellant will be aged in his 80s when he will be eligible for parole.
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