Shawcross v The Queen
[2018] VSCA 295
•14 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0265
| RYAN SHAWCROSS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | McLEISH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 October 2018 |
| DATE OF JUDGMENT: | 14 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 295 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1757 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to persistent sexual abuse of child under 16 – Crimes Act s 47A – Complainant aged between 6 and 8 at time of offending – Complainant offender’s biological daughter – Whether sentencing judge erred in finding methamphetamine use was aggravating feature – Whether judge erred in holding DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 called for uplift in sentences for persistent sexual abuse of child – Appeal allowed – Sentence reduced to 9 years’ imprisonment with non-parole period of 6 years – DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Tony Hargreaves & Partners |
| For the Respondent | Ms E H Ruddle | Mr J Cain, Solicitor for Public Prosecutions |
McLEISH JA
T FORREST JA:
On 26 October 2017 the applicant (now aged 32), pleaded guilty to one charge of persistent sexual abuse of a child under 16.[2] The maximum sentence for that offence is 25 years’ imprisonment. Following a plea hearing, he was sentenced on 23 November 2017 to 11 years’ imprisonment with a non-parole period of 7 years. He seeks leave to appeal against that sentence.
Circumstances of the offending[3]
[2]Crimes Act 1958 s 47A as amended by the Crimes (Sexual Offences) Act 2006 (see now s 49J).
[3]See Reasons for Sentence, DPP v Ryan Shawcross (a Pseudonym) [2017] VCC 1757 (‘Sentencing remarks’).
The applicant was in a de facto relationship with the complainant’s mother. Between January 2014 and May 2016 when the applicant was aged between 27 and 29, he sexually offended against their daughter, who was aged between 6 and 8 at the time.
The complainant’s mother worked as a personal care assistant, which required her to do shift work, including overnight. When she was at work, the complainant and her two younger brothers were under the applicant’s care. The applicant regularly sexually abused the complainant when her mother was at work, out of the house or in another room of the house.
The offending which made out the charge of persistent sexual abuse involved five particularised incidents on four occasions, as follows:
(a) The first occasion was when the complainant was 6 years of age. While she was in bed, the applicant gave her a tummy rub, which progressed to touching her on the vagina. The applicant later told her not to tell anyone.
(b) The second occasion was when the complainant was in Grade 1, at around 6 or 7 years of age. Her mother was home watching television in another room while the applicant and complainant were in bed together in the complainant’s bedroom. The applicant gave the complainant a tummy rub, which prompted her to lift up her underwear. The applicant inserted his hand down her underwear and began rubbing her vagina with his middle finger, penetrating her labia. The complainant moved her body up and down whilst he was doing this and the applicant had an erection. The applicant stopped when the complainant told him to stop and he then left the room.
(c) The third occasion was also when the complainant was in Grade 1 and occurred when the complainant’s mother was at work. The complainant was in her mother’s bedroom, lying on the bed. The applicant came into the bedroom and lay on the bed with her. He placed his hand down her pyjama bottoms and began rubbing her vagina. The complainant recalled the applicant putting the top part of his fingers into her vagina. She ultimately asked the applicant to stop and he did.
(d) The fourth occasion took place on the evening of 15 May 2016. The applicant was driving the three children. The boys were asleep and the complainant was awake. The applicant stated in his interview to police that he had intended to kill himself and the children by driving into a lake. The applicant told the complainant they were all going swimming at ‘The Nook’. The complainant became frightened. The applicant had a change of heart when he saw how frightened she was, and instead took the children to McDonald’s before returning home. Once at home, the applicant put the complainant to bed before joining her under the covers. He pulled down her leggings and underwear and began rubbing her vagina. The applicant asked her to get on top of him and she complied. While they were cuddling, the applicant asked her ‘Would you like to feel this?’ and she said ‘no’. The applicant got upset and said, ‘Let’s get up’. They went to the lounge room where the applicant put his finger down her leggings and touched her vagina. The applicant then removed his finger and licked it.
The next morning, the complainant told her mother about the Nook incident but did not make any further disclosures. The police were contacted. The complainant disclosed the sexual offending to her mother some months later on 7 November 2016.
On 18 November 2016, the police interviewed the applicant and he made several admissions. He admitted offending against the complainant for 2 years, from the time when she was 5 or 6 years of age. The applicant described rubbing the complainant’s vagina and touching her clitoris area inside the outer labia. The applicant stated that on occasions, the complainant would request tummy rubs and the applicant would refuse, but on some occasions he could not control himself. The applicant told police he believed the complainant was starting to ‘enjoy it’ and that sometimes when he was working his hand in slow motion, the complainant would take hold of his hand and shake it faster. The applicant told police he continued to watch pornography, including ‘fantasy adult, father daughter pornography’.
The applicant did not have a prior criminal history, but had two prior Children’s Court appearances.[4] He pleaded guilty at an early stage of the proceeding, and expressed remorse for his conduct.[5]
[4]Ibid [33].
[5]Ibid [34].
Plea hearing
Defence submissions
Defence counsel described the applicant as a simple and unsophisticated thinker with cognitive functioning deficits that have impacted his circumstances generally. The applicant was educated up to year 10, then commenced a plastering apprenticeship and met the complainant’s mother at the age of 19 while undertaking further study. They eventually bought a house together and the applicant maintained stable and ongoing employment. They had three children, with the youngest born in 2015.
In 2015, the applicant was made redundant from a warehousing job he had held for about 10 years. He found similar employment six months later, but had more idle time. In 2015, the applicant and the complainant’s mother separated temporarily, and despite a reconciliation the relationship was never properly revived. The complainant’s mother became pregnant with a third child which was unplanned, and placed a strain on the relationship.
At around this time the applicant’s existing cannabis use extended to other drugs and became more frequent. He also increasingly viewed ‘improper material ’, namely pornography which the psychologist Mr Patrick Newton (mentioned further below) described as extending to a wide range of subjects, including heterosexual, homosexual and transsexual pornography, bestiality, necrophilia and fetish-related activities, but child pornography only ‘once or twice’.
The relationship came to an immediate end in May 2016, after the complainant disclosed the incident of driving to the lake to her mother. The applicant left the family home and his contact with the children was limited to supervised contact once a week at his aunt’s house where he was residing.
Defence counsel submitted that the applicant’s conduct after the offending came to light was significant. Counsel referred to a number of text exchanges between the applicant and the complainant’s mother, after the disclosure of the offending on 7 November 2016. That night, he admitted the offending and described himself as ‘sick’ and needing help. Within 24 hours, the applicant was admitted to a psychiatric unit as an inpatient. Counsel submitted the applicant was unique in admitting to sexually offending against the complainant. The applicant also made admissions to police in his record of interview, including admissions as to the second and third incidents that had not previously been known.
The applicant’s mother gave evidence about how the applicant had been emotionally impacted by the separation from his children as a result of the offending. She also gave evidence of his frequent expressions of shame and regret.
After discharge from hospital, the applicant continued to be under medical supervision and voluntarily attended seven treatment sessions as part of a sex offender treatment program.
Defence counsel submitted that the plea of guilty warranted a material discount, as it was entered at the earliest reasonable opportunity. The acceptance of responsibility and genuine remorse were said to augur well for the applicant’s future rehabilitation. The applicant also had strong family supports and a notable work history notwithstanding his intellectual challenges, and had commenced a stable relationship with a new partner.
The applicant had no relevant criminal record, but had two prior Children’s Court appearances for which he received a good behaviour bond. There was a subsequent matter in which he breached an intervention order by sending text messages to the complainant’s mother, for which he was fined $750 without conviction.
Counsel accepted that the applicant’s conduct was aggravated by its duration and frequency, as well as the complainant’s young age and her relationship with the applicant. However, there was no exposure to risk of pregnancy or sexually transmitted diseases. The offence could therefore be categorised as serious mid-range offending.
Counsel also relied on the psychological assessment of Mr Newton and a further psychological report of Dr Mathew Barth. Mr Newton diagnosed a major depressive disorder, currently in partial remission but requiring ongoing treatment. He described the applicant’s verbal reasoning skills as severely impaired and said that the applicant had a moderately severe learning disability. He was not psychotic. However, he had a history of substance abuse since his teenage years including ‘during the period of his offending’. Mr Newton said that it was likely that the applicant’s drug use ‘left him more impulsive and impaired his judgment to some extent’ but that he was always aware of the wrongfulness of his conduct and his intent to offend was ‘not obscured’. Mr Newton described the applicant as having ‘significant issues with his sexual adjustment’ and an unstable sexual identity. He met the criteria for a paedophilic disorder, non-exclusive type, as well as an unspecified paraphilic disorder. He considered him to be at a moderate to high risk of reoffending despite having commenced treatment with Dr Barth.
Dr Barth described the applicant having attended seven treatment sessions as part of the sex offender treatment program. He said that treatment had focused on ‘psychoeducation regarding the noxious impact of the sexual abuse of children’ and developing a relapse prevention plan. The applicant had been able to demonstrate a degree of empathy for the destructive impact of his offending upon the complainant, and remorse for his behaviour, but Dr Barth considered that his general understanding of the impact of sexual abuse on children remained underdeveloped. Dr Barth stated that the applicant ‘was educated on the consequences of heavy drug use’ and encouraged to reduce his usage, but he regarded his motivation to do so as equivocal. Dr Barth considered that the applicant required sustained mental health treatment and intensive substance abuse treatment.
Based on this material, defence counsel relied on Verdins principle 5.[6] It was submitted that an immediate custodial sentence was warranted, but that the court should fix a lower non-parole period than would otherwise be the case. Counsel submitted that this was because of the length of treatment the applicant required and because his intellectual disability would add to the burden of imprisonment.
[6]Verdins v The Queen (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Counsel acknowledged that the offending attracted a sentencing adjustment as a result of the decisions of this Court,[7] and the High Court,[8] in Dalgliesh. He relied on written submissions regarding the extent of the uplift required, referring to sentences for incest and sexual penetration and indecent assault of a child.
Prosecution submissions
[7]DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148.
[8]DPP v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063.
The prosecutor submitted that the incestuous nature of the offending was an aggravating feature. She accepted that the plea of guilty was entered at the earliest possible time and had significant utilitarian value. It was submitted that the court should take a more guarded view on remorse and rehabilitation, given the entrenched nature of the sexual behaviour detailed in the reports. Mr Newton indicated that the applicant had limited insight into his behaviour and continued to attribute responsibility to his daughter for initiating sexual contact. As such, the applicant’s attitudinal issues undermined his remorse and were problematic to his rehabilitation.
The prosecutor provided authorities to the judge as instances of more serious and prolonged sexual abuse, not as comparator cases but to articulate the principles of sentencing and the abhorrent nature of sexual offending against children. She submitted that the objective seriousness of the offending and the moral culpability of the applicant were high. An immediate custodial sentence was warranted to achieve the sentencing objectives of general deterrence, just punishment and denunciation, and specific deterrence.
Sentencing remarks
The judge referred to the circumstances of the applicant’s offending and the admissions made by him in his record of interview. He also referred to a letter from the Gatehouse Centre for the Treatment and Assessment of Child Abuse at the Royal Children’s Hospital confirming that the complainant commenced treatment on 2 March 2017 following a clinical assessment and that this was a weekly treatment which would continue into the foreseeable future. The judge noted that the complainant exhibited symptoms indicative of post-traumatic stress disorder, as well as general anxiety and sadness which left her alternately subject to anger and so despondent that she had had thoughts of self-harm. The judge also referred to a victim impact statement written by the complainant’s mother and confirming that the complainant had thoughts of self-harm, which she had attempted to enact before being dissuaded. The complainant had fallen behind in her education and had her trust undermined. She often wakes up crying and screaming for help. Her mother is plagued by feelings of guilt and now battles with depression and often cannot comfort the complainant by a simple hug because the complainant is now hypersensitive to people’s touch.
The judge stated that the applicant’s offending had changed the lives of the complainant, her mother and probably his other children forever. He had breached ‘the most fundamental and sacrosanct of trust, that between a daughter and her father’.[9] The judge described the offending as repulsive and abhorrent and undertaken for the applicant’s own debauched sexual gratification, brazenly in the home and sometimes while his partner was at home. The judge described the incident following the driving of the car as particularly grave offending in which, knowing how scared his daughter must have been, he continued to sexually abuse her.
[9]Sentencing remarks [27].
The judge referred to other aspects of aggravation including the inherently threatening demand that the complainant not tell anyone about the abuse. The judge noted that the applicant had sought to place some of the responsibility for the offending on his own child.
The judge then turned to the circumstances and background of the applicant. He noted that he had no prior conviction except for two Children’s Court appearances, one for arson when aged 16 and one for theft, both of which were dealt with by way of a good behaviour bond. The judge stated that he took into account the applicant’s guilty plea which was entered at an early stage. He accepted that the plea had significant utilitarian value as a result of having avoided a trial, and in particular, having made evidence by the complainant unnecessary. The judge accepted that the applicant had demonstrated his regret and remorse for his conduct by his plea and by statements he had made to family members and professionals.
Next, the judge referred to the psychological report of Mr Newton. He noted that the applicant was described as a simple and unsophisticated thinker, challenged by a learning disability with remedial literacy and limited capacity for abstract thought, with severe impairment in his verbal skills but reasoning skills in the average age range. The applicant’s schooling ended in year 10 after various behavioural outbursts including fire setting. The judge described the applicant’s work history as ‘reasonable’.[10]
[10]Ibid [38].
The judge described the applicant’s relationship with his other family members and the deterioration of his relationship with his partner. The latter was contributed to both by his redundancy and by substance abuse issues, in particular cannabis use. The applicant continued to use drugs despite his partner wishing that he would not do so.
The judge noted that the applicant had been admitted to Sunbury Hospital to deal with depressive symptoms as a result of his arrest. He was discharged after a week with a prescription for antipsychotic mood stabilisers and an antidepressant. However, his compliance with these prescriptions had been poor. He noted that the applicant had experienced depression in the past, at school and in the workplace and that in the time of his consultations with Dr Barth, the applicant had necessitated ongoing safety planning to ensure that he was protected from impulsive acts of self-harm.
The judge noted the applicant’s current major depressive disorder in light of Verdins and said that he took that matter into account.
Relevantly to proposed ground 1, below, the judge stated that the applicant had a significantly problematic history of drinking and drug use. He had a physical dependence on cannabis which he began to smoke at the age of 13. He used speed at age 15 and graduated to ice when aged 17 and had used it ‘on a semi-regular basis for fun’ and because such drugs induced a state of hyper-sexuality.[11] The judge stated that the applicant had ‘told Mr Newton that a significant proportion of the abuse perpetrated against [the complainant] had taken place when you had used methamphetamine, although not on every occasion’.[12]
[11]Ibid [46].
[12]Ibid.
The judge described this as an aggravating feature. He continued:
After years of use and knowing its effect on you, particularly the inducement of a state of hyper-sexuality at a time of sexual frustration with your partner, your continued use of the drug and the abuse of your daughter in that state must have been well-known to you. In spite of which, you continued.[13]
[13]Ibid [47].
The judge went on to state that the applicant had also induced sexual excitement by his use of LSD, various synthetic drugs and psychoactive mushrooms, and had continued to use cannabis daily. He had used hallucinogenic drugs and stimulants after his arrest and used cannabis immediately before being interviewed by Mr Newton.
Next, the judge described the applicant’s explanation to Mr Newton of his offending. The applicant had told Mr Newton that he was using large amounts of alcohol and other drugs and had been viewing extensive amounts of pornography every day. He had told Mr Newton that the complainant ‘initiated the sexualised conduct between us because she seemed to like it’.[14] He said that he had told her that it was wrong but ‘she’s continued to initiate the behaviour’ and the applicant had ‘given into her requests’ because he found it hard to say no to people.[15] The judge continued:
This lack of insight on your part is breathtaking. You suffer neither from mental retardation, nor intellectual impairment, thought disorders or symptoms of psychosis, and have a clear appreciation of right and wrong. I agree with Mr Newton’s opinion that you were always aware of the wrongfulness of your conduct and could always appreciate its nature and likely consequences. Your sexual adjustment is characterised by what he describes [as] a psychosexual pathology and deviance. You found the offending committed upon your daughter sexually gratifying.[16]
[14]Ibid [49].
[15]Ibid.
[16]Ibid [50].
The judge stated that the applicant had found treatment consultations between June and October 2017 hard to engage with and his progress had been slow. He described the applicant’s insight as limited and stated that he continued to attribute responsibility to his daughter for initiating the sexual conduct. Mr Newton had concluded that the applicant was at a moderate to high risk of reoffending, somewhat higher than that of a typical sex offender in the community. He had stated that long-term engagement with treatment and the deterrent aspect of sentencing should confer some further protective containment in the case of the applicant.
The judge took account of the co-operation of the applicant by way of admissions against interest in his police record of interview. In particular, the terms of particularisation of two incidents were contained in answers given by the applicant during that interview. He admitted to the period of offending, the complainant’s age and the frequency of abuse. The judge described these answers as being to the credit of the applicant and stated that he would have regard to this assistance.
Further, the judge found that the applicant’s attendance at treatment pursuant to a mental health plan and counselling were also to his credit. However, he regarded the applicant’s prospects for rehabilitation as ‘guarded’.[17] He stated that, despite family support, a current relationship and the lack of relevant prior convictions, the applicant’s psychosexual assessment and his limited intellectual capacity outweighed the ‘protective’ factors.[18] Although the applicant had demonstrated some degree of empathy and remorse, the deficits in his ability to understand the basic elements of the psychological interventions, his poor concentration and insight and learning problems did not all ‘go well’ for his future.[19] The judge stated that the applicant had not demonstrated hostility or unwillingness to receive treatment, which he described as a positive sign. He concluded that there were some aspects which drew the present offending into the middle range of offending but that it was at the high end of that range.
[17]Ibid [57].
[18]Ibid.
[19]Ibid [58].
The judge accepted that there was no exposure to pregnancy or sexually transmitted diseases and that full penetration was not achieved. He also accepted that the instruction not to tell anyone was not accompanied by a clear threat of violence. However, the complainant’s age, the relationship between the complainant and the applicant, the gross breach of trust, the frequency of the offending and the plan to drive the vehicle containing the children into a body of water lifted the objective seriousness of the offending ‘well into the highest level’ of the middle range.[20]
[20]Ibid [60].
The judge described the offences as ‘penetrative’ and ‘of an incestuous nature of high moral culpability’.[21] He stated that ‘condign just punishment’ was required in order to express: condemnation and denunciation of the applicant’s behaviour and the damage which had been caused; specific deterrence relevant to the applicant’s psychosexual state; and, most significantly, general deterrence to address and deter others minded to offend in such a manner, in order to protect the community from such conduct.[22]
[21]Ibid [61].
[22]Ibid.
Finally, and relevantly to proposed ground 2, the judge made reference to the maximum penalty available for the offence and to the decision of the High Court in Dalgliesh:[23]
I have read the authorities which were referred to me during your plea submissions in order to ascertain current sentencing principles. My starting point must be the maximum penalty available, and that is 25 years’ imprisonment. I have also looked at a number of other cases which deal with different but somewhat similar types of offending, particularly those past the High Court case of Dalgliesh which was referred to.
Dalgliesh dealt with incest and the High Court concluded that current sentencing practices were inadequate as to that offence and that such practice should only be one of the elements that is taken into consideration. Such practice was said to not be a proportionate response to the objective gravity of the offence, or to be sufficiently reflective of the moral culpability of the offender.
The mid-range sentences should, the court said, as a consequence, be adjusted upwards. I have regard to this gradual uplift in seeking to impose a proportionate sentence.[24]
[23]DPP v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063.
[24]Sentencing remarks [62]–[64].
Proposed grounds of appeal
The applicant seeks leave to appeal on the following proposed grounds:
1.The learned sentencing judge erred in finding that it was an aggravating feature that ‘a significant proportion of the abuse perpetrated against [the complainant] had taken place when [the applicant] has used methamphetamine.’
PARTICULARS
(a)The finding was made without affording procedural fairness; and
(b)The finding was not open on the material before the learned sentencing judge.
2.The learned sentencing judge erred by taking into account an irrelevant consideration, namely that the High Court concluded that sentences for incest ought be gradually uplifted.
3. The sentence is manifestly excessive.
Proposed ground 1 — Methamphetamine as an aggravating factor
The first proposed ground concerned the manner in which the sentencing judge relied upon evidence of the applicant’s use of methamphetamine. In his sentencing remarks, the judge had stated that it was an aggravating feature of the offending that, as he said the applicant had told Mr Newton, ‘a significant proportion of the abuse’ perpetrated against the complainant had taken place when the applicant had used methamphetamine ‘although not on every occasion’.[25] The judge said that, after years of use of methamphetamine and knowing its effect, especially ‘the inducement of a state of hyper-sexuality’, the applicant’s ‘continued use of the drug and the abuse of [his] daughter in that state must have been well known’ to him yet he had continued in spite of this.[26]
[25]Ibid [46].
[26]Ibid [47].
Counsel raised three related matters. First, it was submitted that the applicant had been denied procedural fairness because it had not been argued by the prosecutor or foreshadowed by the judge that methamphetamine use might be treated as an aggravating factor for sentencing purposes. Counsel pointed out that the judge had raised another potential aggravating factor at the plea hearing but not the applicant’s drug use. It was submitted that, had he been put on notice, defence counsel could have approached Mr Newton and Dr Barth for clarification of the extent to which the offending had been related to drug use.
Secondly, it was submitted that Mr Newton’s observation as to intoxication through drug use was expressed in general terms and not linked to the five incidents which formed the basis for the offence. There was no evidence that the applicant had been affected by drugs during any of those incidents. Given that Mr Newton reported that the applicant had an impaired recollection of events when he had been intoxicated, it was more likely that he had not used methamphetamine in connection with the offending he recalled.
Thirdly, it was argued that drug use of itself would not be aggravating unless the applicant could be shown to have known that use of methamphetamine would have the effect on him identified by the judge. It was submitted that there was no basis for finding such knowledge beyond reasonable doubt. Although Mr Newton recorded the applicant stating that the drugs he used induced a state of heightened sexual excitement, it was possible that this awareness had been acquired after the offending through consultations with Dr Barth, who had educated him about the consequences of heavy drug use.
In our view, this ground should not be accepted. The observations of Mr Newton, on which the judge placed reliance, were that ‘a significant proportion of the abuse … had taken place when [the applicant] had used methamphetamine’, which ‘typically’ induced a state of hyper-sexuality for him. Mr Newton said that the applicant had also said that he ‘had often been under the influence of methamphetamine and other drugs when the offending occurred’ and that ‘during the period of the offending he had been viewing extensive amounts of pornography each day as well as consuming large amounts of alcohol and other drugs’.
While counsel for the applicant correctly pointed out that this evidence did not go specifically to any of the five particularised incidents, that did not make it irrelevant. While proof of at least three of those incidents was essential to the charge under s 47A, the offence is persistent sexual abuse of a child under 16 and it is the persistence of the sexual relationship over time which is at its heart.[27] Consistently with s 47A, the indictment charged the applicant with persistently sexually abusing the complainant between 28 January 2014 and 16 May 2016, in that ‘on at least three occasions’ during that period he took part in acts of a given description. The five incidents therefore did not exhaust the factual scope of the offending. The influence of drugs during offending behaviour involving other incidents was therefore capable of being an aggravating feature of the overall offending.
[27]DPP v DJJ (2009) 22 VR 444, 452 [32] (Maxwell P, Vincent and Neave JJA).
Further, it was well open to the judge to conclude beyond reasonable doubt that the applicant was aware of the likely impact of his drug use on his behaviour. The hypothesis that the applicant learned that drug use heightens his sexual excitement through discussion with Dr Barth rather than from his own experience strikes us as far-fetched and we think that the judge was quite entitled to rely on the applicant’s knowledge as he did.
Finally, we would not uphold the argument as to procedural fairness. The defence was aware of the observations of Mr Newton and mentioned them during the plea hearing. In this Court, counsel for the respondent accepted that the judge ought to have raised with defence counsel the possibility that the applicant’s drug use was an aggravating factor. However, it was submitted that this did not prevent defence counsel from addressing the point. We agree. This is not a case like Portelli v The Queen, in which the judge proceeded on the basis that the offending was premeditated even though both counsel at the plea hearing had contended to the contrary.[28] The potentially aggravating matter was in plain sight and defence counsel could have chosen to confront it but did not do so. No criticism is to be made of him on that account, but nor does the circumstance give rise to a lack of procedural fairness.
Proposed ground 2 — Dalgliesh uplift
[28][2015] VSCA 159 [37]–[38], [46] (Maxwell ACJ, Redlich and Kyrou JJA).
As has been seen, the judge had regard to the ‘gradual uplift’ which he considered was required for sentences for incestuous offending as a result of the decision of the High Court in Dalgliesh.[29] The applicant submitted that this involved two errors. The first was that the judge had applied case law concerning sentencing for a different offence (incest), which was an impermissible distraction. Secondly, Dalgliesh had concerned the inadequacy of current sentencing practices regarding mid-range incest and had not considered at all the offence of persistent sexual abuse of a child, even though the judge had characterised the present case as being in the middle range of offending for that offence. Counsel accepted that defence counsel at the plea had contended that an uplift was appropriate by reason of Dalgliesh but it was submitted that this was a simple error of law, inexplicable as a deliberate forensic decision.
[29]Sentencing remarks [62]–[64].
Counsel for the respondent submitted that the judge was entitled to proceed on the basis that the decisions in Dalgliesh revealed that sentences for incestuous conduct should be increased to reflect the inadequacy of sentencing practices before Dalgliesh. It was submitted that, in any event, no different sentence should be imposed.[30]
[30]Criminal Procedure Act 2009 s 281(1)(b).
As the applicant’s written case pointed out, the adequacy of current sentencing practices for incest did not strictly arise for consideration in the High Court’s decision in Dalgliesh. However, Kiefel CJ, Bell and Keane JJ accepted as correct this Court’s statement that current sentencing practices for incest did not reflect the objective gravity of the offending.[31]
[31]DPP v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063, 1073 [53].
It is not necessary to refer at any length to the analysis of this Court in Dalgliesh. In large measure, the Court’s conclusion that sentences for incest of mid-range seriousness must be adjusted upwards was derived from a review of recent sentences for incest.[32] Although the Court referred earlier in its reasons to one case of maintaining a sexual relationship with a child, this was in connection with the aggravating feature of pregnancy, rather than current sentencing practices for incest.[33] The Court did refer, in the course of evaluating current sentencing practices for incest, to the harm done by sexual offending against children generally,[34] and to community values in respect of that matter,[35] but the subject matter of the exercise was the adequacy of current sentencing practices for incest of mid-range seriousness, not current sentencing practices for other offences of an incestuous character against children.
[32]DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 [93]–[122], [128] (Maxwell ACJ, Redlich and Beach JJA).
[33]Ibid [32], referring to DPP v WJW (2000) 2 VR 497.
[34]Ibid [85], [92], [123].
[35]Ibid [123]–[125].
It follows that Dalgliesh did not call for an uplift in sentences for offences other than incest. The Court did not examine the adequacy of current sentencing practices for persistent sexual abuse of a child. It cannot be inferred that the Court regarded current sentencing practices for that offence as inadequate or calling for an uplift. In submitting to the contrary, defence counsel at the plea led the sentencing judge into error. This ground must be upheld.
The applicant’s separate argument that reference to Dalgliesh in the circumstances of this case was a ‘distraction’ amounting to appealable error does not need to be considered. However, it may be doubted whether the judge was relevantly distracted. In Elias v The Queen,[36] the High Court held that reference to less serious offences with which an offender could have been charged was a ‘distraction’ which detracted from the prosecutor’s discretion as to which offence to charge. Here, the offences of incest and persistent sexual abuse of a child under 16 both carried the same penalty. It is not obvious that consideration of sentences for incest, without more, would carry the same vice. Nor does Elias stand for the proposition that sentences on comparable offences, taking proper account of the applicable maximum penalties, are always irrelevant.
[36](2013) 248 CLR 483, 497 [34], 498 [36] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
Moreover, the observations of this Court in Dalgliesh, endorsed by the High Court, as to the seriousness of sexual offending against children and community values in that context are directly relevant to sentencing for all offences of that nature. The error here lay, not in being distracted by having regard to such matters, but in misinterpreting the holding of Dalgliesh.
We therefore uphold proposed ground 2.
Proposed ground 3 — Manifest excess
In the circumstances, the sentencing discretion is reopened and it is not necessary to consider the ground of manifest excess. We shall instead proceed directly to the appropriate sentence.
Disposition
Under the cover of the manifest excess ground, counsel for the applicant accepted that the offence was of considerable gravity, including because of the complainant’s very young age, the relationship of trust that was breached, the significant impact of the offending and its duration. However, it was submitted that the applicant had pleaded guilty at an early stage and made extensive admissions, that he was remorseful and had voluntarily undertaken treatment with Dr Barth, that he had significant family support and also that he had cognitive incapacities attracting the fifth limb of Verdins.[37] Although he had been assessed as being at a risk of offending somewhat higher than the typical sex offender in the community, he had taken steps towards treatment and a long period of eligibility for parole was warranted. Counsel submitted that the applicant’s limited comprehension of the impact of his offending lessened his moral culpability and allowance should be made for his cognitive limitations.
[37]Verdins v The Queen (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Reference was also made to decisions relied on by the Crown at the plea, which the Crown submitted constituted ‘more serious and prolonged’ instances of the offence, yet which attracted sentences similar to or less than the present sentence.
The respondent submitted that the sentence that the judge imposed was stern but within the available range for what was extremely serious offending. Counsel accepted that the applicant had reduced moral culpability by reason of his cognitive limitations but argued that it was clear that he knew that what he was doing was wrong, as he had told the complainant not to tell anyone about the offending. The respondent’s written case referred to the offending as ‘exceptionally serious’ and supported the sentence imposed by the judge.
In our opinion there can be no question that this was extremely serious offending. The breach of trust on the part of the applicant to his young daughter, persisting for over two years, aggravates considerably what would in any event have been very grave offending. We agree with the sentencing judge that this places the offending at the higher end of the middle range of seriousness for this offence. Sexual offences against children call for just punishment, public denunciation and general deterrence.[38] This was also a case demanding specific deterrence.
[38]DPP v VH (2004) 10 VR 234, 237–8 [11] (Callaway JA); DPP v Riddle [2002] VSCA 153 [34]–[35] (Vincent JA).
On the other hand, it is to the applicant’s credit that he pleaded guilty at the earliest opportunity and made extensive admissions to police, including to incidents about which no complaint had been made. It is also to his credit that he has made some limited progress towards treatment and has given clear indications of remorse for his actions. His family supports and his remorse enhance his prospects of rehabilitation, although the difficulties he will face in pursuing treatment are plainly considerable. In that regard, we agree with the judge that there are real concerns about the level of insight the applicant really has into the gravity of his offending. Mr Newton saw the applicant’s risk of reoffending as higher than that of the ordinary sex offender. Overall, his prospects of rehabilitation must be seen as guarded.
Current sentencing practices are of course a factor to be taken into account.[39] However, as Dalgliesh makes clear, they are not a controlling factor and an offender pleading guilty has no legitimate expectation that he or she will be sentenced consistently with current sentencing practices rather than being sentenced justly according to law.[40] Here, reference was made to three cases, all involving the particular offender’s daughter.
[39]Sentencing Act 1989 s 5(2)(b).
[40]DPP v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063, 1075 [64]–[68] (Kiefel CJ, Bell and Keane JJ).
In BM v The Queen, the offender pleaded guilty to one count of maintaining a sexual relationship with a child under 16 and was sentenced to 12 years’ imprisonment with a non-parole period of 9 years.[41] The offending commenced when the complainant was 4 years old and continued for 10 years, including digital and penile penetration; it continued after the offender was given a suspended sentence for possessing child pornography.[42] There was no relevant mental impairment on the part of the offender but there was strong evidence of remorse and acknowledgement of wrongdoing, and the offender had support from family and his employer.[43]
[41][2013] VSCA 3 [1] (Maxwell P and Whelan JA).
[42]Ibid [9], [14]–[15].
[43]Ibid [29].
Maxwell P observed in BM v The Queen that this Court had examined a number of decisions in DPP v DDJ,[44] and concluded that a sentence above 10 years for the offence of maintaining a sexual relationship with a child under 16 (now persistent sexual abuse of a child under 16) was ‘quite exceptional’, expressing the view that there was a serious question whether current sentencing practices for the offence were adequate.[45] He rejected a ground of manifest excess. Whelan JA agreed with the President, adding that the sentence in that case was ‘at the top of the permissible range’.[46]
[44](2009) 22 VR 444.
[45][2013] VSCA 3 [31].
[46]Ibid [40].
The second case is Bussell v The Queen.[47] Also following a guilty plea, this offender was sentenced to 9 years’ imprisonment for persistent sexual abuse.[48] The offending commenced when his daughter was 7 years old and continued until she was 16.[49] It included forceful penile-vaginal penetration. Again, this Court regarded the sentence as being at the upper end of the permissible range.[50]
[47][2014] VSCA 310 (Weinberg and Beach JJA).
[48]Ibid [1].
[49]Ibid [3].
[50]Ibid [25]–[26].
Finally, in R v GMT, the Court upheld a sentence of 9 years’ imprisonment for maintaining a sexual relationship with a child.[51] Again, the offender pleaded guilty to a variety of offending, over a 7 or 8 year period from when his daughter was 3 years old.[52] The offending included oral sex and masturbation. Charles JA, with whom Vincent JA and Mandie AJA agreed, described the sentence as ‘well within the range’.[53]
[51][2006] VSCA 13 [1] (Charles JA with Vincent JA and Mandie JA agreeing).
[52]Ibid [4].
[53]Ibid [21].
In our opinion, these cases must bear on the appropriate sentence to be imposed. Although, as already mentioned, they are no more than one factor to be taken into account, they do suggest that the sentence imposed in the present case was very high (perhaps reflecting the ‘uplift’ to which the judge referred). The Director did not take up the Court’s invitation, noted earlier, to ask the Court to review current sentencing practices in relation to the offence of persistent sexual abuse of a child in the manner in which it reviewed sentences for incest in Dalgliesh. As the High Court’s decision in Dalgliesh reveals, current sentencing practices do not in any event require the Court to impose a sentence other than one that is just according to law. The Court is free to ‘depart’ from established current sentencing practices if the justice of the case demands it. Although, again, the respondent did not specifically urge us to do so, it was implicit in the respondent’s submissions in support of the sentence in the present case that the sentences in the earlier cases we have referred to, which involved more serious offending, do not constrain the Court. Equally, references in the cases to the ‘permissible range’ must not be applied to later cases in a way that wrongly treats current sentencing practices as imposing a limit.
As we have said, we agree that this offending was at the higher end of the middle range of seriousness for this offence. As such, it called for a substantial term of imprisonment. In our opinion, the sentence must also give due weight to the applicant’s significant cooperation with the authorities, his remorse and his somewhat reduced moral culpability by virtue of his cognitive limitations. After considering the other cases to which we have referred, we do not think that using them as a yardstick would lead to a just sentence recognising the seriousness of the present offending. In all the circumstances, we think that an appropriate sentence is imprisonment for 9 years with a non-parole period of 6 years.
If the applicant had not pleaded guilty, many of the mitigating features of this case would have been absent. For the purposes of s 6AAA of the Sentencing Act 1989, we would have sentenced him to 12 years’ imprisonment with a non-parole period of 8 years.
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