S J N v The Queen
[2012] VSCA 239
•26 September 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0116
| SJN | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | BUCHANAN and NETTLE JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 26 September 2012 | ||
DATE OF JUDGMENT: | 26 September 2012 | ||
MEDIUM NEUTRAL CITATION: | [2012] VSCA 239 | ||
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Sexton, 26 April 2012) | ||
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CRIMINAL LAW – Sentence – Sexual penetration of a child under 16 – Remorse – Plea of guilty – Delay – Relevance of sentencing practices at time of offending – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A S Dickenson | Melasecca Kelly & Zayler |
| For the Crown | Mr C J Ryan SC | Mr C Hyland Solicitor for Public Prosecutions |
BUCHANAN JA:
The applicant seeks leave to appeal against a sentence of 4 years’ imprisonment with a non-parole period of 2 years’ imprisonment which was imposed upon him when he pleaded guilty in the County Court to one count of sexual penetration with a child aged between 10 and 16 years.
The offence consisted of one act of sexual intercourse in 1997 when the complainant was living at the applicant’s house at the invitation of the applicant’s daughter, who was the same age as the complainant. The applicant was then aged 37 years and the complainant was aged 15 years and 6 months. The applicant met the complainant after the complainant and the applicant’s daughter were staying in a women’s refuge. The sentencing judge described the complainant as ‘a vulnerable child, who began receiving psychiatric attention the year before you offended against her, and she was at some stage diagnosed with chronic schizoaffective disorder.’
As a result of the act of intercourse the complainant became pregnant and gave birth to a child. The applicant left his wife and commenced a relationship with the complainant over a period of some three years, during which the complainant gave birth to another child.
The complainant left the applicant in 2000. The complainant died at the age of 28 years as a result of a heart attack.
The applicant worked as a truck driver. There were six children of his marriage, whom the applicant was supporting financially when he was sentenced. At the conclusion of his relationship with the complainant, the applicant entered into a relationship with another woman, by whom the applicant has had two children.
The applicant has an extensive history of offending. Between 1977 and 1996 there were 13 court appearances for offences which included assault, drug offences and firearm offences. In 2008 the applicant conspired to traffic in methylamphetamine, for which he was sentenced to a term of imprisonment. Since 1997 the applicant has been convicted of assaults, drug offences and breaches of intervention orders.
The first ground of the application is that the sentencing judge erred in finding that the applicant’s plea of guilty to the charge did not reflect any remorse for his crime.
In the course of her sentencing remarks, her Honour said, ‘Your plea does not reflect any remorse for your crime.’
The applicant did not deny the act of intercourse but maintained that he believed the complainant was aged at least 16 years. The prosecution in turn relied upon the evidence of a social worker that the applicant told her that he knew the complainant was under 16. Before the jury was empanelled, a voir dire was conducted as to the admissibility of the evidence of the social worker. The evidence was ruled admissible, whereupon the applicant offered to plead guilty to the charge of sexual penetration of a child under the age of 16 years, and the prosecution agreed to withdraw the allegation that an aggravating circumstance was that the complainant was under the applicant’s care, supervision or authority at the time of the offence.
In the absence of any direct evidence of remorse on the part of the applicant, I consider that the sentencing judge’s conclusion that the circumstances in which the plea was made did not disclose remorse was open to her.
The second ground of the application is that the sentencing judge erred in finding that there was no undue delay in the case for the purpose of sentencing.
The sentencing judge dealt with the question of delay in these terms;
I note that 15 years have passed since you committed this crime. By your admission to the DHS [Department of Human Services] worker and your plea of guilty, you have always known that you broke the law with this act of sexual intercourse and so the effect of the passage of time is not as severe in your case.
Further, the law recognises that child victims of sex offences often take time to be able to be able to report the offending against them. [The complainant] made her statements to the police in 2009, although her allegations, including this offence, were known to DHS and the police, and to you, before then. Because of your knowledge of your crime, I find that there is no undue delay in this case.
In support of the last proposition, her Honour sited R v Nikodjevic[1] in which Ormiston JA said:
It would be preposterous for an offender who committed incest on a six year old child to claim some automatic discount 12 years later when the complainant had first felt safe to complain about her father’s conduct only at the age of 18 and the charge had come on promptly for sentencing.
[1][2004] VSCA 222, [21].
The present case was materially different from the example given by Ormiston JA. The commission of the offence was followed by a relationship of some years. Although the offending occurred in 1997, the first intimation to the applicant that the complainant intended to make a complaint about it was in July 2004 when social workers became involved. The complainant apparently was reluctant to make any complaint to the police.
Nevertheless, I do not think that the sentencing judge fell into error. Delay is relevant if the offender achieves reformation in the period of delay or is allowed to develop an expectation that he will not be charged and conducts his affairs accordingly. Consequences of that kind were not present in this case and I do not consider that her Honour erred in failing to find that delay was a mitigating factor. Her Honour’s remark that because of the applicant’s knowledge, there was no delay is not strictly correct, but in my view the judge probably meant no more than that the applicant was not in a position to contend that he had been lulled into a false sense of security. In any event, in all the circumstances, I consider her Honour was entitled to come to the conclusion that this delay was not undue in the sense that its consequences constituted a mitigating circumstance of significance.
The final ground of the application is that the sentencing judge erred in failing
to have regard to sentencing practices at the time of the offending.
In sentencing the applicant the judge said that ‘the offence falls towards the more serious end of the range, because of the aggravating factors outlined earlier.’
Although neither counsel at the plea referred to any sentencing statistics, it is now contended that the sentencing judge should have had regard to sentencing practices current when the offence was committed. At the hearing of this appeal, counsel for the applicant relied upon a sentencing snapshot published by the Sentencing Advisory Council analysing sentences for the offence of sexual penetration of a child aged between 10 and 16 in the period between 2001–02 and 2005–06. The statistics reveal that the sentence imposed upon the applicant was in excess of the average sentence imposed for the offence. The statistics do not reveal the average age of the offenders.
This Court has said on many occasions that statistics are of limited utility. The statistics relied upon by the applicant in this case do not reveal a marked increase in sentences for the offence in the period covered by the snapshot, merely that this sentence was above the average sentence in the period between 2001 and 2006. In the light of the particular vulnerability of the complainant, the age of the applicant and the consequence of pregnancy, I do not think that the sentence has been shown to be excessive by reason of current sentencing practices.
For the foregoing reasons, I would refuse leave to appeal.
NETTLE JA:
I agree.
BUCHANAN JA:
The order of the Court is the application for leave to appeal against sentence is dismissed.
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