Russell v The Queen
[2011] VSCA 147
•19 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 726 of 2009
| DEAN PAUL RUSSELL |
| v |
| THE QUEEN |
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| JUDGES | BUCHANAN and NEAVE JJA and KAYE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 2 May 2011 |
| DATE OF JUDGMENT | 19 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 147 |
| JUDGMENT APPEALED FROM | R v Russell (Unreported, County Court of Victoria, Judge Hannan, 30 June 2009) |
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CRIMINAL LAW – Sentence – Appellant pleaded guilty to two counts of sexual penetration of a child under 16 and three counts of indecent act with a child under 16 – Manifest excess – Relevance of sentencing statistics and comparable cases – Moderate/low risk of re-offending – Strong employment history – Severe depression – Serious predatory conduct – Breach of trust – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M D Stanton | Victoria Legal Aid |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Neave JA that the appeal should be dismissed. I also agree with the observation of Kaye AJA as to the proper role of sentencing statistics and so‑called comparable cases.
A sentencing judge is required to have regard to, inter alia, current sentencing practices[1] and accordingly will take into account in the instinctive synthesis of relevant sentencing considerations statistics relating to sentences imposed for the offence and the results in comparable cases.
[1]Section 5(2)(b) of the Sentencing Act 1991.
Counsel for the appellant in this case placed statistics at the forefront of his case and subjected a number of other sentencing decisions to a detailed analysis. Counsel pointed to aspects of other cases said to disclose more serious offending than the present case and relied upon lesser sentences in those cases to argue that the judge in the present case erred.
In my opinion, such an approach is misconceived. Cases said to be comparable can do no more than provide a general guide, impression or background.[2] They are not a benchmark that acts as a straightjacket. Further, such an approach runs the risk of adding or subtracting periods of time to reflect aggravating and mitigating factors present or absent in the cases being compared. As Kaye AJA has explained, statistics are an even rougher guide to an appropriate range.
[2]Hudson v The Queen [2010] VSCA 332, [31] (Ashley, Redlich and Harper JJA); Hili v The Queen (2010) 85 ALJR 195, 211 (Heydon J).
In the present case, I consider that, having regard to the circumstances of the offence and the offender, the sentence imposed upon the appellant was not one which a reasonable sentencing judge could not have imposed.
NEAVE JA:
The appellant, Dean Paul Russell, pleaded guilty to two counts of sexual penetration of a child under 16 (counts 1 and 5) and three counts of indecent act with a child under 16 (counts 2, 3 and 4). After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the appellant as follows:
Count
Description
Sentence
Cumulation
1
Sexual penetration of a child under 16
36 months’ imprisonment
Base sentence
2
Indecent act with a child under 16
18 months’ imprisonment
8 months
3
Indecent act with a child under 16
18 months’ imprisonment
8 months
4
Indecent act with a child under 16
18 months’ imprisonment
5
Sexual penetration of a child under 16
36 months’ imprisonment
12 months
The appellant was sentenced as a serious sexual offender on counts 3, 4 and 5, pursuant to Part 2A of the Sentencing Act 1991. The individual sentences and orders for cumulation amounted to a total effective sentence of 5 years and 4 months’ imprisonment. A non-parole period of 3 years and 8 months was ordered.
The appellant now appeals against sentence on the following ground:
In all the circumstances, the learned sentencing judge erred by imposing a total effective sentence and non parole period which:
(a) failed properly or at all to reflect current sentencing practices; and
(b) is manifestly excessive.
Background
The offences were committed between 30 December 2006 and 31 March 2007 against a single victim, DVK, who was then aged 13 years. The appellant had been in a relationship with CB, the victim’s mother, for 8 months and resided with her and her children intermittently during that period.
Count 1 related to an incident in which the appellant instructed the victim to perform oral sex on him ‘quickly before your mother comes in’. The victim was in the appellant’s room after he invited her to watch TV with him. Immediately prior to this, she had vomited because she had been drinking alcohol. The victim initially refused to engage in the activity, but eventually agreed to the appellant’s persistent demands and placed her mouth over his penis until he ejaculated in her mouth. The activity lasted about one minute.
Count 2 concerned an occasion in which the victim fondled the appellant’s exposed penis at his request. The victim had been sleeping in her bed and was woken by the appellant asking her whether she wanted him to ‘jump in bed’ with her. She acquiesced and the appellant began hugging her and moving his hand over her crotch, before asking the complainant to touch his penis.
Count 3 related to offending which took place in the appellant’s home.[3] He began masturbating in the presence of the victim, who was seated on a couch, and ejaculated on the victim’s bottom after asking her to pull down her pants for that purpose.
[3]R v Russell (Unreported, County Court of Victoria, Judge Hannan, 30 June 2009) (‘Reasons’), [7].
Counts 4 and 5 were comprised of a single episode of offending. The victim was watching television while seated on a couch, when the appellant sat down beside her. He then removed her underwear and penetrated her vagina with his tongue. She then asked him to stop. Those facts constitute count 5. Count 4 related to the appellant’s subsequent conduct of masturbating and ejaculating on the victim’s exposed breasts.
The appellant was interviewed by police on 9 July 2008 and exercised his right not to answer the questions asked.
The appellant was aged between 39 and 40 years during the period of offending and aged 42 years at the date of sentence.
He admitted nine prior convictions arising from five court appearances, and two prior findings of guilt. Most of this offending arose following the break up of the appellant’s marriage. In 2006 and 2007, the appellant was convicted on two separate occasions of breaching an intervention order. The earlier conviction was sustained together with convictions on two counts each of making a threat to kill and using a carriage service to menace or harass. The threats were made against the then employer of the appellant’s wife, with whom the appellant believed she had an intimate relationship. His most recent prior conviction was for an assault committed in January 2007, of which no details were provided. None of the offences involved sexual offending.[4]
[4]Ibid [20].
The appellant was brought up with three other siblings and lived in Gippsland till the age of 5, when the family moved to Melbourne. He then spent 6 months in the United Kingdom, before returning to Mornington. His father was a violent alcoholic, and left the family when the appellant was aged 10. His mother worked as a bartender to support the family but finances were limited.
The judge remarked that the appellant’s employment history was ‘strong’ and that he had shown ‘considerable endeavour’.[5] The appellant worked for various tyre service companies for about 15 years, before working in his father-in-law’s irrigation business for 6 years until his father-in-law died. He then worked as a car salesman and most recently, on a fishing trawler in New South Wales. An offer of re‑employment has been made by his most recent employer.
[5]Ibid [22].
The appellant’s marriage lasted 16 years. He had two children from the marriage, aged 11 and 12 years at the date of sentence, and during their relationship also helped take care of his step-son, who was aged 21 at the date of sentence. In 2005, he believed that his wife was having an affair. His wife and children moved out after he confronted her about it, and after discovering that they had left, he burned down the house and attempted suicide. He was admitted into psychiatric care for short periods of time and drank heavily.
About 24 cans of beer per day were consumed by the appellant for a period of 2 years. After this, he reduced his consumption to 12 cans per day mainly because he could not afford to drink as much as he had previously done. His employment on the fishing trawler helped him to withdraw from alcohol consumption. At the date of sentencing, the appellant did not complain of any substantial withdrawal symptoms.
A number of psychological and psychiatric reports were tendered on the appellant’s behalf. Their contents were described by the judge as follows:
A report from Mr David Bruce, forensic psychologist date 7 July 2006 was tendered as Exhibit A. You saw Mr Bruce for the purposes of assessment and report on 6 July that year, in the context of the then outstanding criminal proceedings in relation to breach an intervention order. It was Mr Bruce’s opinion that you were suffering depression at that time, exacerbated by excessive alcohol use. Mr Bruce describes you as suffering from a major reactive depression.
Tendered as Exhibit C, is a report from Dr Keith Adley, consultant psychiatrist, with La Trobe Regional Hospital. He has seen you personally on two occasions, and is familiar with the contact you have had with his service commencing on 31 March 2005. He says you have always presented with severe depression and suicidal intent. He says your history of attempting suicide has been severe and included overdoses, jumping in front of a moving train, the ingestion of poison and setting your house alight with you in it.
Dr Adley says that your diagnosis has varied and included adjustment disorder, depression, alcohol use and relationship problems. He says that you have been difficult to manage and non compliant as regards attendance and medication.
A report from David Ball, a forensic psychologist is Exhibit B. You saw Mr Ball for the purposes of assessment and report on 15 June this year at the Melbourne Remand Centre. Unfortunately the process of assessment led to an invalid profile being obtained on the MCMI-111, and thus assessment was necessarily based upon clinical assessment.
Mr Ball found no evidence of frank mental illness. He noted that your memory was in tact [sic] and you were orientated in place time and person. He did however, note a history of serious and determined suicide attempts. He estimated your IQ to be in the ‘dull normal’ range. It is Mr Ball’s opinion that you have shown minimal insight as regards your offending. He says you impressed as an individual prone to poor judgement, particularly when alcohol affected.
Mr Ball assessed you as satisfying the criteria for a diagnosis of alcohol dependence with psychological dependence, in early remission in a controlled environment. He says that you do not meet the criteria for a diagnosis of paedophilia, and that your offending is best explained in terms of impaired judgement stemming from severe and long standing depression and alcohol abuse.
Mr Ball remains concerned about your suicide risk and says that you need to be monitored in custody and will require supervision, intensive and structure treatment, monitoring and support upon your release. Specifically, he says you will need treatment to prevent alcohol relapse and that you would benefit from participation in the Sex Offender Program having regard to your lack of insight.[6]
[6]Ibid [29]-[36].
Counsel’s submissions
Counsel for the appellant argued that the learned sentencing judge had been led astray by the submissions on sentencing range made by counsel at the plea hearing. The prosecutor had submitted that a total effective sentence in the range of 5 to 6 years would be appropriate and defence counsel had referred to a range of about 4 to 6 years. Neither of these submissions, it was said, could be substantiated by reference to the sentencing statistics prepared by the Sentencing Advisory Council or to the sentences imposed in a number of comparable cases.[7] The fact that the total effective sentence imposed fell within the range put by counsel did not, it was said, cure any error of law or waive the appellant’s right to be sentenced according to current sentencing practice.[8]
[7]As to the need for substitution of a submission or range see R v MacNeil-Brown (2008) 20 VR 677, [41]-[45]. As to the importance of consistency in sentencing, see 679.
[8]R v Yacoub [2006] VSCA 203, [19] (Eames JA).
At the hearing of the appeal, counsel for the appellant focussed on the 36 month base sentence, which was said to be emblematic of the judge’s failure to have regard to current sentencing practices, as disclosed by sentencing statistics and the sentences imposed in comparable cases.
According to counsel for the appellant, Sentencing Snapshots published by the Sentencing Advisory Council[9] relating to the offence of sexual penetration of a child under 16 indicated that:
[9]Sentencing Advisory Council, Snapshot 88: Sentencing Trends for Sexual Penetration of a Child Aged 10 to 16 in the Higher Courts of Victoria (June 2009); Sentencing Advisory Council, Snapshot 89: Sentencing Trends for Sexual Penetration of a Child Aged 10 to 16 Under Care Supervision or Authority in the Higher Courts of Victoria (June 2009).
(a) sentences of imprisonment imposed between 2003-4 to 2007-8 ranged from 6 months’ imprisonment to 5 years’ imprisonment, with a median of 2 years’ imprisonment;
(b) the median term of imprisonment imposed where the offender was in a position of care, supervision and authority over the child was 3 years;
(c) during the relevant period, 71 per cent of sentences of imprisonment imposed for the offence of sexual penetration of a child, where the offender was not in a position of care, supervision or authority over the child, were less than 3 years;
(d) total effective terms of imprisonment imposed on persons sentenced for sexual penetration of a child during the period surveyed ranged from 6 months to 9 years and 2 months. The median total effective term of imprisonment was 3 years; and
(e) 77 per cent of total effective sentences were below 5 years’ imprisonment.
Counsel for the appellant also referred to the table of comparable cases annexed to the reasons of Maxwell P in granting leave to appeal. He relied particularly on Director of Public Prosecutions v Ellis,[10] R v Howell,[11] R v Cleary,[12] R v Bradey[13] and PDA v The Queen[14] as examples of cases where lesser sentences were imposed for offences of similar or greater gravity.
[10](2005) 11 VR 287.
[11](2007) 16 VR 349.
[12][2004] VSCA 14.
[13][2009] VSCA 169.
[14][2010] VSCA 94.
Counsel for the appellant submitted that the sentences imposed on the sexual penetration counts and the total effective sentence substantially exceeded the sentences imposed in Ellis and in Howell, although the offenders in both those cases were in a position of care, supervision and authority over the complainants. A maximum term of 15 years’ imprisonment applied in those circumstances, compared with the 10 year maximum sentence which applied to the offences committed by the appellant.
Counsel contended that the circumstances of the offending and the offender in this case did not justify the imposition of sentences of imprisonment on the sexual penetration counts, which exceeded the median sentence imposed for this offence by a year. The appellant:
(a) pleaded guilty plea at the committal hearing prior to any evidence being called;[15]
[15]Reasons, [38].
(b) did not have a history of sexual offending;
(c) had a strong employment history;[16] and
(d) had a moderate to low risk of sexual re-offending.[17]
[16]Ibid [23].
[17]Ibid [36].
Reliance was also placed on the fact that the victim was not a pre-pubescent child but aged 13 years old, and the absence of evidence that she had been threatened or assaulted. It was also said that the appellant had attempted to disclose the abuse to the victim’s mother.
Although the appellant had to be sentenced as a serious sexual offender on counts 3, 4 and 5, the judge found that it was not necessary to impose sentences longer than those proportionate to the gravity of the offences, in order to protect the community.[18]
[18]Ibid [45].
The judge had also held that the appellant was entitled to rely on Verdins principles.[19] She found that the appellant’s moral culpability was reduced because he was severely depressed and that imprisonment would be more burdensome than for other offenders.[20] Counsel submitted that her Honour should have given greater weight to these matters and should also have moderated the weight given to general deterrence as a consequence of the appellant’s severe depression.
[19]Ibid [41].
[20]Ibid [40].
In reply, counsel for the Crown relied on comments made by Maxwell P in granting leave to appeal. His Honour had said that this was very serious offending, that the sentencing reasons were of outstanding quality and that the sentences were within the range put forward by the defence. Although this did not foreclose an appeal on the grounds of manifest excess, it was an unusual circumstance which ‘must be said to count against the likelihood of success on appeal’.
Counsel for the Crown submitted that the gravity of the sexual penetration offences (counts 1 and 5) justified the imposition of sentences which were above the median. The sentences imposed on counts 2, 3 and 4 (indecent act with a child under 16) were consistent with the median term of imprisonment imposed for this offence between 2003-4 and 2007-8, and the 8 months cumulation ordered in relation to counts 2 and 3 was quite modest. In failing to order cumulation of the sentence imposed on count 4, her Honour had taken account of the fact that this offence occurred on the same occasion as count 5.
The offending was objectively serious because:
(a) the appellant was a mature man and the victim only 13 years old;
(b) count 1 occurred when the victim was particularly vulnerable, having vomited after getting drunk;
(c) the victim was subjected to multiple sexual offences;
(d) counts 1, 3 and 5 involved the appellant ejaculating on the victim;
(e) all counts except count 3 occurred in the complainant’s home, where she was entitled to feel safe;
(f) the offending was particularly audacious because it occurred when the mother and siblings of the complainant were in another part of the house;
(g) the appellant breached the trust of the complainant’s mother (his sexual partner) and the complainant; and
(h) the complainant had been seriously harmed by the offending.[21]
[21]Ibid [17].
Her Honour referred to defence counsel’s submission that the appellant had made ‘veiled attempts … to bring the matter into the open and stop [his] abuse’.[22] She was unable to form a concluded view as to whether this was his intention.
[22]Ibid [12].
The judge was guarded about the likelihood of the appellant re-offending. She was entitled to give some emphasis to community protection in sentencing the appellant because the appellant had persisted in his view that the complainant had pursued him, that he had had a relationship with her, and had been unable to accept that his conduct was wrong. This made it necessary for her Honour to give weight to specific deterrence, as well as to denunciation and general deterrence.
Counsel for the Crown also submitted that neither the sentencing statistics relied upon by the appellant nor the comparison between the sentences imposed in this case and in other cases necessarily indicated that the sentences fell outside the range of appropriate sentences open to her Honour. In that respect, he relied on the reference in this Court’s decision in Hasan v The Queen[23] to Hudson v The Queen:[24]
‘The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.
Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the SentencingAct 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this Court. They may however be used in search of unifying principles.’
In summary it may be said, therefore, that consistency in sentencing is not to be achieved by a search for the matching case or cases. It requires the placement of the sentence within the correct range. That task is a matter for objective determination, leavened only to the extent that the process of instinctive synthesis is properly employed at that stage, and by the application of the relevant principles. Once the correct range has been determined, however, the fixing of an appropriate sentence within that range is within the discretion of the sentencing judge. There is no ‘right’ or ‘wrong’ sentence so long as the proper boundaries are observed. Reasonable minds will differ on what precise sentence should be delivered. Accordingly, even if the offence under consideration were in its material facts to be matched with precision by another or others, the sentencing judge would still be bound to exercise his or her own discretion.[25] That might result in a matching sentence, or it might not: both former and present sentence being (on this hypothesis) within the range, any difference would be unimpeachable. There would, to adapt the words of Mason CJ in Lowe v The Queen,[26] be no ‘badge of unfairness’, and no ‘unequal treatment under the law’.[27]
[23][2010] VSCA 352, [52]-[54] (Maxwell P, Redlich and Harper JJA).
[24][2010] VSCA 332, [27]–[29] (Ashley, Redlich and Harper JJA).
[25]The search for a case matching precisely in all material particulars with that under sentencing consideration is often likely to be fruitless. Even if such a match exists, finding it would be enormously burdensome. And it cannot be that if, by chance, two matching cases were heard at the same time, and two sentences – both within the objectively determined range, but otherwise different – were subsequently handed down, the offender upon whom the more severe sentence is imposed would have a good ground of appeal.
[26](1984) 154 CLR 606, 611.
[27]See also Hiliv The Queen (2010) 85 ALJR 195; DPP v CPD (2009) 22 VR 533, 552 [77]-[78] (Maxwell P, Redlich JA and Robson AJA).
Counsel submitted that the orders for cumulation resulted in a total effective sentence that fell within the upper range of the range of 4 to 6 years put by defence counsel, which was, it was said, not an inappropriate range in the circumstances of this case. In short, the appellant had not established that the judge ‘went so badly wrong … that this Court should be satisfied that the discretion was not properly exercised at law’.[28]
[28]R v Studdard [2006] VSCA 112, [26] (Maxwell P).
In further support of that submission, counsel for the Crown cited PDA v The Queen,[29] which Maxwell P mentioned in his reasons for granting leave to appeal. In that case, the appellant was sentenced on two counts of indecent act with a child under 16 and four counts of sexual penetration of a child under 16, one of which was penile/vaginal penetration. All the offences occurred over approximately 6 months. The appellant was 37 and the complainant was a 15 year old girl. The appellant was not found to be remorseful for his conduct and this Court held that the sentences ranging from 2 to 4 years imposed on the rolled up sexual penetration counts and the total effective sentence of 7 years and 3 months’ imprisonment were moderate in the circumstances.
[29][2010] VSCA 94.
Conclusion
In my opinion, the appeal against sentence should be dismissed.
Even if I had accepted that the Crown submissions on sentencing range were wrong (which I do not), this would not necessarily establish that the ground of manifest excess is made out. As this Court said in R v MacNeil-Brown,[30] Crown submissions on sentencing range are an aspect of the prosecutor’s duty to assist the Court. However, the sentencing judge is not bound to accept them and must reject them if the circumstances of the offending and the offender call for the imposition of a sentence outside that range.[31] Further, although the appellant is not prevented from arguing that the sentence was manifestly excessive because it fell within the sentencing range put forward by defence counsel, this must necessarily make it more difficult for the appellant to succeed on the ground of manifest excess.[32]
[30](2008) 20 VR 677, 684 [20]-[21] (Maxwell P, Vincent and Redlich JJA).
[31]Ibid 691 [44]-[45].
[32]The relevance of a range put forward by defence counsel was left open by the Court in MacNeil–Brown (at 696 [62]-[63]).
As I have said, the appellant argued that sentencing statistics showed that the sentences imposed on counts 1 and 4 and the total effective sentence were outside the range of sentences which could be imposed by her Honour in the exercise of her sentencing discretion.
Sentencing statistics are a useful guide on the range of sentences which may be imposed for a particular offence. But, as this Court has frequently observed, statistics must be used with caution because they do not indicate the precise nature of the offence or the mitigating factors which have been taken into account in fixing the sentences giving rise to those statistics. The fact that the challenged sentence is above the median of sentences imposed for the relevant offence is insufficient, of itself, to show that the judge had insufficient regard to current sentencing practices or that the sentence is manifestly excessive.
I have also had regard to the cases in the table annexed to Maxwell P’s reasons and the cases on which the appellant relied to demonstrate that the sentences were manifestly excessive. In Ellis,[33] the respondent was a female school teacher aged 36 and the complainant was her 15 year old male pupil. The respondent pleaded guilty to six counts of taking part in an act of sexual penetration with a child under the age of 16. After taking account of double jeopardy, this Court held that the 12 month individual sentences and the wholly suspended sentence of 22 months’ imprisonment imposed by the sentencing judge were manifestly inadequate and that the respondent should be re-sentenced to 2 years’ imprisonment on each count. The orders for cumulation resulted in the offender serving a total effective sentence of 2 years and 8 months’ imprisonment, of which all except 6 months was suspended for an operational period of 3 years.
[33](2005) 11 VR 287.
In Howell, the appellant, a female integration-aide teacher, aged 36, pleaded guilty to one count of maintaining a sexual relationship with a 15 year old boy under her supervision. Some of the sexual offences occurred when the offender was staying in the home of the complainant, who had become a friend of his mother. The appellant in that case had a history of depressive symptoms which were mild to moderate in severity, and her marriage had recently broken down. This Court held that the sentencing judge had failed to take account of the effect of her mental condition in reducing her moral culpability and re-sentenced the appellant to 3 years’ imprisonment with a non-parole period of 20 months.
The circumstances of the offender and the offending in those cases clearly differ from those present in this appeal. In both cases, the offender lost her career as a teacher as a result of the offending. Both offenders had been of good character prior to the offending and the offender in Howell was deeply remorseful. Neither of the women was likely to re-offend, making specific deterrence an irrelevant sentencing consideration. The sentencing judge accepted that the complainant in Ellis had initiated the sexual activity. The complainant denied that the offence had had any ill effects upon him.
The offender in Cleary was a 29 year old surf captain who pleaded guilty to four counts of sexual penetration of a 14 year old surf club member. The first three counts were representative counts. Again, this court found that there was specific sentencing error. The offender, who was found to be ‘extremely remorseful’, was re‑sentenced to 2 years’ imprisonment on each of the four counts, which with orders for cumulation amounted to a total effective sentence of 2 years and 8 months’ imprisonment. It was relevant also in that case that the appellant was found to have been ‘full and frank in his admissions and concessions throughout the investigation of the relationship’. Unlike the appellant, Cleary was not in a position of trust vis‑à‑vis the complainant.
In Bradey,[34] it was held that sentences of 30 months’ imprisonment for each of two counts of sexual penetration of a child under 16 under the care, custody and control of the offender were not manifestly excessive. In that case, the offender had also pleaded guilty to a count of indecent act with a child, for which he was sentenced to 12 months’ imprisonment. The total effective sentence imposed was 43 months’ imprisonment. The appellant had no prior convictions and was remorseful.[35]
[34][2009] VSCA 169.
[35]Reference was also made to DPP v CPD [2009] VSCA 114, where the respondent, who had pleaded guilty, was re-sentenced on a Director’s appeal to a total effective sentence of 6 years’ imprisonment for offences which included two counts of sexual penetration of a six year old child and two counts of sexual penetration of a three year old child. The Court indicated that current sentencing practices for this offence might require revision because of the increase in the maximum sentence for this offence from 20 to 25 years. Reference was also made by counsel for the appellant to DPP v Wightley [2011] VSCA 74, where the respondent was re‑sentenced to a total effective sentence of 5 years and 9 months’ imprisonment. It was pointed out the sentences imposed on a single count of sexual penetration was 2 years’ imprisonment.
I am not persuaded by the statistical material or the cases relied upon by the appellant that the sentences imposed on the sexual penetration counts or the total effective sentence fell outside the range of sentences which could be reasonably imposed in the exercise of the sentencing discretion.
As Heydon J said in Hili:
The difficulty which the principles in House v The King create for appellants in sentencing appeals – whether defendants complaining of ‘manifest excessiveness’ or the prosecution complaining of ‘manifest inadequacy’ – is that they give sentencing judges ‘a wide measure of latitude which will be respected by appellate courts’.[36] But it does not follow that, when a sentencing judge in one case looks back on the reasons for judgment of an earlier sentencing judge in a similar case, the later judge should give the earlier one ‘a wide measure of latitude’ in the sense of not departing from the outcome unless it is plainly wrong.
Sentences must be reasonably consistent. But it does not follow that disparities between them may not exist. Within the boundaries of reason, and leaving aside the special instance of co-offenders, where marked disparity renders sentences vulnerable on appeal,[37] it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate. Indeed, even within a single jurisdiction, one court, while bound by whatever this Court or the intermediate appellate court for that jurisdiction has held to be the correct legal principles (statutory or common law), may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for ‘error’ merely because of those differences.[38]
[36]Postiglione v The Queen (1997) 189 CLR 295, 336 (Kirby J).
[37]Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295.
[38](2010) 85 ALJR 195, 211 [76]-[77].
I would accept the Crown submission that the offending in this case involved serious predatory conduct and required sentences which gave considerable emphasis to denunciation. The complainant was only 13 years old and was placed in a position where she could not avoid contact with the appellant, who was her mother’s boyfriend. She has suffered greatly from the appellant’s breach of trust.
Unfortunately, the appellant lacks insight into the consequences of his wrongdoing. As her Honour said, ‘[t]he fact that you still think that you are in a relationship with a 13 year old child is concerning and must moderate, what would otherwise be a positive prognosis as regards your rehabilitation’. In these
circumstances, denunciation and both specific and general deterrence were important sentencing considerations.
As this Court has frequently said, it is difficult to sustain a ground of appeal alleging that a sentence is manifestly excessive.[39] Her Honour’s sentencing reasons were impeccable. She took account of all relevant mitigating factors, including the early guilty plea, the effect of the appellant’s mental condition on his moral culpability and the burden which imprisonment would impose on him.
[39]R v Abbott (2007) 170 A Crim R 306, 309-10 [13]-[15] (Maxwell P); R v Langdon (2004) 11 VR 18, 30-2 [67]-[75] (Gillard AJA).
For these reasons, I am not satisfied that the sentences imposed by her Honour fell outside the scope of her sentencing discretion.
KAYE AJA:
I agree that the appeal against sentence should be dismissed.
The primary submission made by counsel on behalf of the appellant was that, as a result of the estimates of appropriate sentencing ranges given to her by counsel, the learned sentencing judge was diverted from a proper consideration of sentences in ‘comparable’ cases, and of the sentencing statistics relevant to the offences in respect of which the appellant had pleaded guilty.
The difficulty with that submission is that it places undue and excessive emphasis on the relevance and value of comparable cases and statistics, and, in doing so, it obscures the limitations involved in the utility of either of those considerations in the exercise of a sentencing judge’s discretion.
At best, what might be described as ‘current sentencing practices’ is but one of many factors which are relevant in the exercise of that discretion. However, the content of that phrase is somewhat elusive. It is trite, but nonetheless fundamental, that each case is different, and not just in matters of detail. The facts and
circumstances relating to the offending in each case are quite unique. No two cases are alike, except in that they may, in a broad sense, each possess certain common characteristics. The assessment of the gravity of the offending in each case is, of necessity, different. The relevant factors relating to the prisoner – such as age, health, background, antecedents and character – are all necessarily different. The sentencing judge’s assessment of culpability, remorse and rehabilitation will vary with each particular case. So, too, will the sentencing judge’s assessment as to the extent to which a term of incarceration may operate harshly on a particular prisoner. In the same way, the sentencing judge’s assessment of the relative importance of specific deterrence, general deterrence and denunciation will vary for each case.
All of those factors, and more, are, in each case, factored into the judge’s discretionary judgment as to the appropriate sentence, determined by a process of ‘instinctive synthesis’. That phrase is not an arcane jurisprudential mantra. Rather, it accurately describes the manner in which a sentence is determined in each case. It is for that reason that reasonable minds can, and regularly do, differ as to the appropriate sentence, sometimes to a marked degree. For, there can be no ‘right’ sentence in any particular case.
It is for that reason that this Court has recognised that “‘like’ cases can only, at best, provide a general guide or impression as to the appropriate ranges of sentences” and that, as such, they can “only provide limited assistance” in the sentencing process.[40] In particular, as this Court cautioned in Hudson v The Queen:[41]
To undertake and utilise a comparative analysis, whether at first instance or on an appeal, in an attempt to identify a sentence in a ‘like’ case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis …
It is no part of the sentencing task, or of the assessment of the sentence on appeal, to embark on that level of analysis of comparative cases … Accordingly one must be wary of attempts to examine a comparable case in ‘micro detail’, as such an approach will ordinarily be indicative of an intent to use the cases providing something more than a guide to a range.
[40]Hudson v The Queen [2010] VSCA 332, [20] (Ashley, Redlich and Harper JJA); Hasan v The Queen [2010] VSCA 352, [52] (Maxwell P, Redlich and Harper JJA).
[41][2010] VSCA 332, [32]-[33].
It is for those reasons that the ‘comparable’ cases relied upon by counsel for the appellant, and which Neave JA has discussed, are of limited utility in determining whether the sentencing judge, in this case, erred in the exercise of her discretion in determining the sentences to be imposed upon the appellant. Inevitably, there are differences between those cases and the present case. Furthermore, the reference to a limited number of such cases would not, ordinarily, assist in the determination of an appropriate ‘sentencing range’ in a given case.[42]
[42]R v F [2002] NSWCCA 332, [39] (Simpson J).
A fortiori, sentencing statistics are of even less assistance to a sentencing judge. They are, at best, only a very crude guide as to the appropriate sentence in a case. The only information, on which such statistics are based, are, firstly, the relevant offence, and, secondly, the sentence. The statistics do not reveal anything about the underlying factors influencing the sentences in the cases comprised in the statistics, including the gravity of the offending, and the nature of the mitigating circumstances. In that way, the median statistic is, at best, a particularly rough cross check for a sentencing judge, in the event that a sentence determined by that judge might be significantly more, or less, than the median figure. To give statistics any greater weight than that would, necessarily, compromise the proper exercise of the instinctive synthesis, which lies at the heart of just and fair sentencing.
For those reasons, I am not persuaded that the previous cases, to which counsel referred, nor the statistics upon which he relied, demonstrate that the sentencing judge in this case erred in the exercise of her discretion, in determining the individual sentences, the total effective sentence, and the non-parole period, in the manner contended for on behalf of the appellant.
Nor do I consider that the sentence in this case has been demonstrated to be manifestly excessive. The offending in this case was most serious, involving a mature man taking advantage of a young and vulnerable adolescent girl. The offending was aggravated by the circumstance that the appellant, by virtue of his then relationship with the victim’s mother, was in a position of trust, in relation to the victim and her mother. He had, to some extent at least, joined the household, of which the victim was a member. In doing so, he was placed in a position of responsibility and trust, which he breached in a most egregious manner.
There were a number of mitigating circumstances in the case, as properly recognised by the learned sentencing judge. In particular, the appellant pleaded guilty at a particularly early stage, he had no previous convictions for sexual offending, and he had a good employment record. The sentencing judge, correctly, also took into account that the appellant’s long standing severe depression and serious history of attempted suicide reduced his culpability for his offending to a limited extent. Taking those factors into account, I do not consider that a total sentence of 5 years and 4 months, with a minimum sentence of 3 years and 8 months, for the five offences in respect of which the appellant pleaded guilty, could be demonstrated to be manifestly excessive. Nor were the individual sentences for each of the five counts demonstrably excessive.
It is clear that the sentencing judge was well acquainted with the circumstances of the offending, and with the relevant mitigating circumstances which were relied on before her, and on this appeal. Her Honour’s reasons for sentence are detailed and thorough. Her Honour gave careful consideration to the relevant facts in the case, to the appellant’s circumstances, and to the salient sentencing considerations, such as specific deterrence, general deterrence, denunciation, and rehabilitation. The appellant has failed to identify any material error in the exercise of her Honour’s sentencing discretion.
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