Sharman (a pseudonym) v The Queen
[2017] VSCA 241
•6 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0200
| CONNOR SHARMAN (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of certain persons, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant. The same pseudonym was adopted in the County Court.
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| JUDGES: | REDLICH and TATE JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 June 2017 |
| DATE OF ORDERS: | 13 June 2017 |
| DATE OF REASONS FOR JUDGMENT: | 6 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 241 |
| JUDGMENT APPEALED FROM: | DPP v Sharman (a Pseudonym) (Unreported, County Court of Victoria, Judge Douglas, 8 September 2016) |
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CRIMINAL LAW – Appeal – Sentence – Indecent act with child under 16 – Possession of child pornography – Weight to be given to full admissions – Doran discount – Complainant refusing to give statement – Offence known but proof of guilt dependent on confession – Need for transparency in applying discount to separate charges – Discount not apparent on both charges – Wrong maximum penalty considered – Appeal allowed – Appellant resentenced – R v Doran [2005] VSCA 271; Dawson v The Queen [2015] VSCA 166; Younan v The Queen [2017] VSCA 12 applied – JBM v The Queen [2013] VSCA 69; Latina v The Queen [2015] VSCA 102 discussed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J O’Connor | Yang & Vale Pty Ltd |
| For the Crown | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
TATE JA
CROUCHER AJA:
On 1 September 2016, the appellant pleaded guilty in the County Court at Melbourne to two charges of indecent act with a child under the age of 16 and one charge of possession of child pornography. He was sentenced on 8 September 2016 as follows:[2]
[2]DPP v Sharman (a Pseudonym) (Unreported, County Court of Victoria, Judge Douglas, 8 September 2016) [73]–[80] (‘Reasons’).
Charge
Offence
Maximum
Sentence
Cumulation
1 Indecent act with a child under the age of 16 [Crimes Act 1958 s 47(1) (‘CA’)] 10 years’ imprisonment 12 months’ imprisonment 5 months 2 Indecent act with a child under the age of 16 [CA s 47(1)] 10 years’ imprisonment 15 months’ imprisonment Base 3 Possession of child pornography [CA s 70(1)] 10 years’ imprisonment[3] 10 months’ imprisonment 2 months Total effective sentence 22 months’ imprisonment Non-parole period 15 months Pre-sentence detention declared 9 days 6AAA statement: 36 months’ imprisonment with a non-parole period of 20 months. Other relevant orders: Life registration under the Sex Offenders Registration Act 2004; forensic sample order; disposal order under the Confiscation Act 1997 relating to computer hard drives. [3]The appellant was sentenced on the basis that the maximum penalty was 10 years’ imprisonment. At the date of his offending, the maximum penalty was 5 years’ imprisonment. See below.
On 13 June 2017, this Court granted leave and allowed the appeal. We set aside the sentence of the court below and resentenced the appellant to 12 months’ imprisonment on charge 1, 12 months’ imprisonment on charge 2 (base sentence), and six months’ imprisonment on charge 3. We ordered that three months of the sentence on charge 1 and one month of the sentence on charge 3 be served cumulatively upon each other, and upon the sentence on charge 2, making a total effective sentence of 16 months’ imprisonment. We fixed a non-parole period of 10 months and declared 287 days of pre-sentence detention. Pursuant to s 6AAA of the Sentencing Act 1991 we declared that, but for the appellant’s plea of guilty, we would have imposed a total effective sentence of three years and six months’ imprisonment with a non-parole period of two years and six months.
We indicated, at the time of making those orders, that we would publish our reasons at a later date. These are those reasons.
Circumstances of the offending
The appellant committed two offences of an indecent act with a child under the age of 16 between 1 January 2013 and 31 December 2013 (charge 1) and 10 April 2015 and 11 April 2015 (charge 2). Those offences attract a maximum penalty of 10 years’ imprisonment.[4] The appellant also pleaded guilty to a charge of possession of child pornography (charge 3) between 1 January 2014 and 31 August 2015. That offence attracts a maximum penalty of five years’ imprisonment.
[4]Crimes Act 1958 s 47(1).
The appellant was aged in his early 60s at the time of offending. The victim of the first offence was the appellant’s granddaughter. The victim of the second was his grand-niece.
Charge 1 concerned an indecent act with the appellant’s granddaughter when she was aged seven to eight years old. The complainant and her brother were sleeping over at her grandparents’ house. While she was asleep, the appellant went into her room, pulled her pyjama pants down and rubbed her vagina. When she woke up, he left the room.
Charge 2 related to offending when the appellant’s grand-niece and her three siblings were staying at the appellant’s house. The complainant was six years old at the time. After his wife had gone to sleep, the appellant was sitting on the couch when the complainant ran into the room and jumped on his lap. He then pulled her underpants down, rubbed her vagina and kissed her on the vagina.
Charge 3 relates to images found on the appellant’s computer hard drives. These included 356 images, of which 330 were classified as category 6, 13 as category 1 and 13 as category 7 as per the Australian National Victim Image Library (ANVIL) schema.[5]
[5]Also known as CETS categories.
The offending behaviour came to be disclosed after the complainant the subject of charge 2 told a classmate at school that a man had licked her vagina. When her mother asked her about this, she told her mother that it had happened at the appellant’s house the night they stayed there. Her mother consequently reported the matter to the Knox Sexual Offence Unit on 14 October 2015. The complainant refused to say any more about the incident and became visibly distressed when questioned. She was too distressed to give a VARE.
The appellant was interviewed in relation to the allegations on 20 October 2015. He denied them.
The complainant the subject of charge 1 then disclosed the offending constituting that charge on 22 October 2015. She gave a VARE interview on 6 November 2016 in which she described the appellant as ‘touching my butt’ and that it was ‘sort of like a rub’ while her pants were down.
Meanwhile, the appellant had fled to Ararat, where he was admitted to hospital after attempting to overdose on heart medication pills.
On 8 November 2015, his family voluntarily handed over his computer hard drives.
On 27 January 2016, upon return to his home address, the appellant was arrested and interviewed by police. At the second record of interview, he gave a full account of the offending behaviour. He admitted to details beyond the statements of the complainant to charge 1, including that he had touched the vagina of the complainant the subject of charge 1, rather than the ‘butt’ as she had described. He made a full confession as to the events the subject of charge 2.
The judge’s reasons
After describing the circumstances of the offending, the judge considered victim impact statements tendered by the complainant the subject of charge 1, as well as her father, mother and brother. The father and mother of the complainant the subject of charge 2 also provided victim impact statements, as did the wife of the appellant.
The judge categorised charges 1 and 2 as serious, aggravated by the gross breach of trust of the families of the children. Her Honour referred to the potentially destructive impact of the sexual abuse of children, discussed in Director of Public Prosecutions v DJK.[6] The judge stated that ‘sentencing judges must recognise the personal damage that is occasioned by such offending; and secondly, the rehabilitation of the victim may be far more difficult to accomplish than that of the perpetrator’.[7]
[6][2003] VSCA 109.
[7]Reasons [41].
The judge referred to the fact that the appellant ‘was confident he would not be detected, as he knew each of these children and their families trusted him’.[8] Further, her Honour found that the offending conduct the subject of charge 2 had escalated from the offending the subject of charge 1. However, she accepted defence counsel’s submission that the indecent act charges were both limited to discrete occasions, which were of short duration.[9]
[8]Ibid [42].
[9]Ibid [43].
In relation to the record of interview, the judge accepted the submission that:
the prosecution relies on the details given by [the appellant] in the second record of interview in relation to the offence committed which is the subject of Charge 1, as the Complainant in Charge 1’s account was very limited as to detail. She was six[10] years of age at the time it happened and then she was recalling it later … I take into account in his favour that in the record of interview he provided further detail, as he then said he touched her on the vaginal area.[11]
[10]The complainant on charge 1 was actually aged either seven or eight at the time of the incident.
[11]Reasons [44].
The judge went on to differentiate the offending before her from the decisions of this Court in R v Doran,[12] and JBM v The Queen,[13] which the appellant had sought to rely upon during his plea.
[12][2005] VSCA 271 (‘Doran’) (Buchanan JA, Eames and Nettle JJA agreeing).
[13][2013] VSCA 69 (‘JBM’) (Weinberg JA, Priest JA agreeing).
In Doran, the offender voluntarily contacted police and confessed to committing indecent acts, sexual penetration of children and possession of child pornography after having been investigated only for possession of child pornography. Specifically, the offender telephoned the officer who had conducted the record of interview and told him that he had committed a number of other offences against children. He said that he had sought psychological assistance and had been told by the psychologist that an essential step in his rehabilitation would be to admit that he had committed the crimes. The offender made full and frank admissions. He was then charged with a further 12 offences. The sentencing judge concluded that, but for the offender’s admissions, it was ‘most unlikely’ that his other offending would have been discovered.[14]
[14]Doran [2005] VSCA 271 [4].
In JBM, the complainant was three years old at the time of the complaint and so, for obvious reasons, was unable to provide particulars of each incident. The offender in that case immediately admitted to the offending when interviewed by police. Weinberg JA (with whom Priest JA agreed) observed that his admissions occurred in circumstances where ‘he must have been well aware of the fact that the complainant would hardly have been able to put together a coherent account of anything that had been done to her’.[15]
[15]JBM [2013] VSCA 69 [8].
Further, the judge took several mitigating factors into account, including the appellant’s lack of prior convictions, lack of subsequent convictions, and his plea of guilty, which had avoided for the community the cost of a trial, and saved the complainants from the ordeal of giving evidence.
The judge made specific reference to the appellant’s full and frank admissions. Her Honour stated in her sentencing reasons that:
I take into account in his favour that although he denied the allegations in the first record of interview in relation to the Complainant in Charge 2, when interviewed the second time, he made full admissions in relation to each complainant and it was clear at the time that second record of interview was conducted that the case would not proceed by way of trial.[16]
[16]Reasons [48].
The judge then took into account his early plea of guilty:
I take into account in his favour that the plea of guilty was indicated at an early stage … I take into account in his favour that he provided important details in relation to the offending alleged on Charge 1 on the indictment. However, I disagree that the matter could not have been proceeded with in court.[17]
[17]Ibid [49].
Her Honour also considered the personal circumstances of the appellant, including his marital difficulties, his heart condition and a psychiatrist’s report diagnosing him with ‘major depressive disorder’. The report indicated that his depression had worsened since the charges had been laid.[18]
[18]Ibid [51]–[53].
The judge dealt with the psychologist’s report in detail. That report stated that the appellant attributed his interest in paedophilia to the breakdown of his marriage and that he was motivated to persevere with specific treatment. The report stated that the arrests had had a significant impact on the appellant and that his risk of reoffending was low to moderate. The importance of offence specific treatment was emphasised. Further, the report noted that if he were to be incarcerated, prison authorities should be notified of his previous suicide attempts.[19]
[19]Reasons [54]–[58].
No submissions were made that the appellant’s depression contributed to his commission of the offences. The judge, however, accepted that imprisonment would weigh more heavily on him than on another offender and that there was a serious risk that it would adversely affect his mental health.[20] The impact of his family no longer wishing to associate with him was also taken into account.
[20]Ibid [59]–[60] citing R v Verdins (2007) 16 VR 269, 276 [32].
The appellant’s record of interview, his comments to the psychologist and the submissions made on his behalf were found by the judge to reflect regret. Her Honour further observed that they indicated that the appellant was focused on his own position with limited insight into his offending behaviour.[21]
[21]Reasons [62]–[63].
The judge then proceeded to consider the appropriate sentence. Her Honour rejected the submission that a community correction order would be appropriate. The judge stated that:
the seriousness of the offending is such that it can only be reflected in a term of imprisonment to be imposed immediately, notwithstanding that the offending was of short duration on two discrete episodes and that the accused provided further details as to Charge 1. I also refer to the context of committing Charge 3, the child pornography charge.[22]
[22]Ibid [65].
The judge concluded that, as a result of the ‘gross breach of trust’ occasioned by the appellant’s offending, ‘much weight’ should be given to general deterrence, just punishment and denunciation, while only limited weight should be given to specific deterrence.[23] The appellant’s insight was judged as limited, with his ‘main concern [being] his predicament’, although some weight was given to his rehabilitation and participation in treatment.[24] His age and physical condition were taken into account as mitigating factors.
[23]Ibid [67]–[68].
[24]Ibid [68].
Grounds of appeal
The appellant relied on three grounds of appeal:
(i) The learned sentencing judge erred by not applying the principle in R v Doran [2005] VSCA 271;
(ii) The learned sentencing judge erred by taking into account an incorrect maximum penalty on Charge 3; and
(iii) The sentences imposed on each charge, the total effective sentence and the non-parole period are manifestly excessive.
Ground 1: the learned sentencing judge erred by not applying the principle in R v Doran [2005] VSCA 271
As we have said, the sentencing judge referred to the Doran principles (although this appears to have been in the context of charge 1). In Doran,[25] Buchanan JA (with whom Eames and Nettle JJA agreed) said:
the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant’s admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.[26]
[25]See [19] above.
[26][2005] VSCA 271 [14].
The appellant submitted that no such ‘demonstrable’ discount was given with respect to charge 2. The appellant relied upon the fact that the victim the subject of charge 2 refused, or was unable, to give a VARE. There was no realistic prospect that the appellant could have been prosecuted without his confession. The appellant submitted that a substantial discount was therefore warranted as the only evidence that could establish the commission of the offence came from the appellant’s own admissions in his second record of interview. The appellant pointed towards the fact that, in both Latina v The Queen[27] and Dawson v The Queen,[28] failure to give a ‘demonstrable’ Doran discount was treated as specific error.
[27][2015] VSCA 102 [22] (‘Latina’).
[28][2015] VSCA 166 [56] (‘Dawson’).
During the hearing of the appeal the Crown acknowledged that the prosecutor did not respond during the plea to the Doran submissions which the appellant’s counsel had made at some length. It was also conceded that the judge failed to make apparent in the sentencing reasons exactly how the Doran discount was applied to each charge. The Crown nevertheless submitted that the sentences were appropriate given the features of this case distinguished it from other comparable cases.[29] With respect to charge 2 it was submitted that, if there was to be an application of the Doran discount, it would have to be substantially moderated as the offence was known and the complainant had the capacity to provide evidence of the offence. It was said that JBM was distinguishable because the complainant did not have the capacity to give evidence and so there was no prospect of prosecution without the admission of the offender. Similarly, with respect to Doran, the fact that the offences were unknown before the offender made his confession was said to be distinguishable. The Crown submitted that, if any discount was applicable to the appellant’s sentence, it should not be of the same order as in those cases. The complaints were known and the complainant to charge 2 had the capacity to give a detailed statement as to the offending conduct. Accordingly, the Crown submitted, the sentences imposed adequately reflected any applicable discounts.
[29]See also Ryan v The Queen (2001) 206 CLR 267, 295 (Kirby J) (‘Ryan’); Doran [2005] VSCA 271 [15] (Buchanan JA); SJ v The Queen [2012] VSCA 237 [64] (Osborn JA, Nettle and Redlich JJA agreeing) (‘SJ’); Latina [2015] VSCA 102 [17].
As to charge 1, the Crown accepted the appellant was entitled to a degree of leniency, since the further information provided by him rendered his offending more serious. As this Court said in Latina:
We entertain no doubt that the [Doran] principle may also have application where the disclosures made by the offender do not relate to a new charge but show that the offence committed was of a more serious order than was known by or would have been discoverable by the investigators. It is clear from the consideration of the authority to which we have referred that it is entirely consistent with the policy underlying the principle that it may have application even though investigators may be able to establish that an offender has committed a specific offence. If admissions are made as to facts concerning the commission of that offence that are unknown by the investigators which materially elevate the gravity of the offence, such voluntary disclosures entitle the offender to a discount on the sentence that would otherwise be imposed for the offence of that gravity.[30]
[30][2015] VSCA 102 [17].
As to charge 2, the Crown’s contentions must be rejected. The public interest that attaches to a plea of guilty which rests upon a confession,[31] and the right to considerable leniency in such circumstances, is not confined to cases where the crime is unknown to investigators before the confession is made or the complainant does not have the ‘capacity’ to give admissible evidence.[32]
[31]Ryan (2001) 206 CLR 267, 295 (Kirby J); Doran [2005] VSCA 271 [15]; SJ [2012] VSCA 237 [64].
[32]DPP v Clunie (a Pseudonym) [2016] VSCA 216 [32]; R v BF [2007] VSCA 217 [55].
In R v Ellis[33] the NSW Court of Criminal Appeal recognised that the weight to be given to an admission rests on the likelihood of not only the offence being discovered but also guilt being established against an offender in the absence of an admission. Street CJ, with whom Hunt and Allen JJ agreed, said:
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge.[34]
[33](1986) 6 NSWLR 603.
[34]Ibid 604.
In Dawson it was recognised that the law was settled that, even in relation to crimes known to the investigators, the offender has a right to a ‘significant discount’ where by his admissions he ‘provides proof of an offence which the prosecution could not otherwise have established.’[35] Subsequently, in Younan v The Queen,[36] Redlich and Ferguson JJA stated that leniency will ordinarily be called for where an offender by his confession provides the sole basis upon which a prosecution for a known offence can proceed:
The right to a significant discount where an offender, by his admissions, provides proof as to his guilt of an offence which the prosecution could not otherwise have established is now well settled. Street CJ recognised in R v Ellis that a significant added element of leniency arises from a confession of guilt in such circumstances. The principle rests upon the policy of the criminal law to encourage a guilty person to come forward and make a confession of guilt to his offending. The principle and its rationale was affirmed by McHugh J in Ryan v The Queen. Subsequently, in R v Doran, Buchanan JA (with whom Eames and Nettle JJA agreed) observed that the appellant had voluntarily provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. His Honour considered it necessary that ‘the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions’. The principle is now often described in Victorian courts as the ‘Doran discount’. The principle was enlivened in JBM v The Queen, as the offences could not have been proved in the absence of the appellant’s co-operation and admissions. Weinberg JA, with whom Priest JA agreed, observed, citing Doran, that public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed. In order to facilitate their successful prosecution, public policy requires that offenders should be encouraged to admit their crimes by granting them transparently substantial reductions in sentence where that occurs.[37]
[35][2015] VSCA 166 [53].
[36][2017] VSCA 12 [39].
[37]Ibid [39] (citations omitted).
In Latina it was held that, even though the offender only made his confession after being confronted with evidence discovered upon the execution of a search warrant, that did not affect the application of the Doran principle. This Court said that:
Those circumstances [i.e. of the offender’s confession] may have borne upon the [offender’s] remorse, his prospects for rehabilitation or the need for special deterrence but his reason for making such disclosures did not alter the fact that the gravity of the offending could only be established as a consequence of his voluntary disclosures.[38]
[38][2015] VSCA 102 [18].
Intermediate appellate courts in other states and territories have also consistently applied an Ellis discount to a plea of guilty, which rests upon a confession with respect to a known crime, where the guilt of the offender could not otherwise be established.[39]
[39]See, eg, R v McCabe (Unreported, NSWCCA, 14 October 1991); R v Baldacchino [1998] NSWSC 723; R v JSK [2004] NSWSC 470; Raad v The Queen (2011) 220 A Crim R 471; MRM v The Queen [2015] NSWCCA 195; Panetta v The Queen [2016] NSWCCA 85; R v Saunders [2016] QCA 221 [10]; Hill v The State of Western Australia [2014] WASCA 150 [33]; Atkinson v The State of Western Australia [2017] WASCA 154 [60]–[67]; R v Wyatt [No 2] [2017] ACTSC 151 [30]; Wilson v Police [2013] SASC 48; Nona v The Queen (2012) 31 NTLR 84.
The capacity of the complainant the subject of charge 2, who was aged six at the time of the offending and seven at the time she refused to make a statement or participate in a VARE, did not affect the appellant’s right to leniency arising from his confession. No suggestion was made on the plea that there was any prospect that the complainant would have provided evidence to enable a prosecution of the appellant or that the appellant believed that to be so when he confessed. It was only the appellant’s confession that provided the basis for the laying of the charge.
The discount for a confession will generally be more substantial where it is a confession to an unknown crime rather than to a known offence but less so where the confession only provides more specific detail of existing allegations. That said, when proof of guilt depends entirely upon the offender’s confession, leniency is usually required. The amount of any discount will be a matter of degree and fact depending upon the circumstances of the case.
We have concluded that, in this case, the appellant was entitled to leniency on both charges as a result of his full and frank admissions. It was necessary that some discount be given for the admission of more serious offending with respect to charge 1 and a more significant discount with respect to charge 2.
Where the circumstances require the grant of considerable leniency, transparency dictates that these circumstances should ordinarily be identified in the judge’s reasons, together with some explanation as to how they have been taken into account. Save for where it is the inescapable inference from the sentence imposed that the discount was applied, the sentencing remarks must reveal that the Doran discount has been allowed.[40] A specific discount on charge 2 in relation to the appellant’s voluntary admissions was not discernible from the judge’s sentencing reasons. Her Honour did not refer to the fact that the complainant the subject of charge 2 had refused to provide evidence of the offence, nor that proof of the appellant’s guilt on charge 2 depended upon his confession. It was important that there be some express reference to these matters if her Honour accepted the need for leniency on charge 2.
[40]Latina [2015] VSCA 102 [20]–[21].
The appellant’s voluntary admissions in relation to both charge 1 and charge 2, required a ‘demonstrable’ discount should have been applied to both charges. As no reference was made by the judge in the sentencing remarks or during the plea to the need for such leniency with respect to charge 2, we were not satisfied that such a discount was applied.[41] We therefore found error in the imposition of the sentence on charge 2.
Ground 2: the learned sentencing judge erred by taking into account an incorrect maximum penalty on charge 3
[41]R v Gallagher (1991) 23 NSWLR 220, 234 (Hunt J).
The appellant was sentenced on the basis that the maximum penalty for possession of child pornography (charge 3) was 10 years’ imprisonment.[42] Importantly, however, that maximum only commenced on 1 December 2015.[43] The offending in question occurred between 1 January 2014 and 31 August 2015 and so should have been subject to the earlier maximum penalty of five years’ imprisonment. Counsel for the Crown on appeal conceded that this was an error but submitted that leave should be refused as there was no reasonable prospect that the Court would impose a less severe sentence. As the offending spanned 20 months it was said the sentence was of a modest order.[44]
[42]Reasons [2].
[43]The Crimes Amendment (Child Pornography and Other Matters) Act 2015 s 4 increased the maximum penalty that applies to s 70 of the Crimes Act 1958 for offences against that section committed on or after 1 December 2015.
[44]Criminal Procedure Act 2009 s 281(1)(b).
We accepted the appellant’s submission that error in the maximum penalty was material given that the judge had considered a maximum period of imprisonment that was twice as lengthy as the one she was required to take into account. Accordingly, we considered it necessary to resentence the appellant on charge 3 to a lesser sentence.
Finally, as the appellant had made out the specific errors the subject of grounds 1 and 2, it was not necessary to consider ground 3.
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