Smith v The Queen
[2018] VSCA 258
•12 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0061
| JENNI MARGARET SMITH |
| v |
| THE QUEEN |
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| JUDGES: | KAYE and T FORREST JJA and TAYLOR AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 October 2018 |
| DATE OF JUDGMENT: | 12 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 258 First Revision: 20 February 2019 |
| JUDGMENT APPEALED FROM: | DPP v Smith (Unreported, County Court of Victoria, Judge Stuart, 23 February 2018) |
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CRIMINAL LAW – Appeal against conviction – Applicant convicted of three charges of sexual penetration of a child under 16 years and two charges of indecent act with a child under 16 years – Whether verdicts of guilty unreasonable or cannot be supported by the evidence – Whether jury must have entertained a reasonable doubt as to the veracity of the complainant’s evidence – Whether substantial miscarriage of justice occurred – Whether note written by complainant outlining abuse admissible – Whether admitted by error - Application for leave to appeal against conviction refused.
CRIMINAL LAW – Appeal against sentence – Pleaded not-guilty – Applicant sentenced to six years nine months’ imprisonment with a non-parole period of three years nine months – Whether sentencing judge erred in making orders for cumulation that were manifestly excessive – Whether total effective sentence manifestly excessive – Whether sentencing judge treated lack of remorse and lack of regard by applicant for consequences of offending as aggravating factors.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Ginsbourg | Dribbin & Brown Criminal Lawyers |
| For the Respondent | Mr C B Boyce SC and Ms D Karamicov | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA
T FORREST JA
TAYLOR AJA:
Following a trial in the County Court, the applicant was convicted of three charges of sexual penetration of a child under 16 years and two charges of indecent act with a child under 16 years. She was sentenced to a total effective term of imprisonment of 6 years and 9 months, with a non-parole period of 3 years and 9 months. That sentence was constituted as follows:
| Charge on Indictment F13915986.2 | Offence | Maximum | Sentence | Cumulation |
| 1 | Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) | 15 years’[1] imprisonment [s 45(2) Crimes Act 1958 (Vic)] | 3 years and 6 months’ imprisonment | 18 months |
| 2 | Indecent Act with Child Under 16 | 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] | 1 year imprisonment | 3 months |
| 3 | Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) | 15 years’1 imprisonment [s 45(2) Crimes Act 1958 (Vic)] | 3 years and 6 months’ imprisonment | 18 months |
| 4 | Indecent Act with Child Under 16 | 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] | 6 months’ imprisonment | Nil |
| 5 | Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) | 15 years’1 imprisonment [s 45(2) Crimes Act 1958 (Vic)] | 3 years and 6 months | Base sentence |
| Total Effective Sentence: | 6 years and 9 months’ imprisonment | |||
| Non-Parole Period: | 3 years and 9 months | |||
| Pre-sentence Detention Declared: | 11 days | |||
| 6AAA Statement: | Not Applicable | |||
| Other orders: - Forensic Sample Order; - Registered on the Sex Offenders Registration Act 2004 (Vic) for a period of 15 years; and - Sentenced as a Serious Sexual Offender on charges 3, 4 and 5. | ||||
[1]Since the publication of these reasons, it has been noted that the sentencing table in paragraph 1 incorrectly states the
applicable maximum sentence to be 15 years imprisonment. The prescribed maximum sentence was 10 years imprisonment.
The applicant seeks leave to appeal against her conviction and sentence.
Application for leave to appeal conviction
The application for leave to appeal the conviction is based on two grounds, namely:
1.The verdicts of guilty is unreasonable or cannot be supported having regards to the evidence led at the applicant’s trial as the jury must have entertained a reasonable doubt as to the veracity of the complainant’s evidence.
2.A substantial miscarriage of justice occurred because of the prejudicial and irrelevant material was placed before the jury through the tender of Exhibit 4.
The prosecution case
The offences are alleged to have been committed by the applicant with Jesse Deacon[2] on a date between 1 September 2010 and 31 December 2011. Originally the applicant was jointly charged with Deacon in respect of those offences. In addition, Deacon was also charged with other sexual offences committed by him against the same complainant between January 2004 and December 2011. However, ultimately it was decided that the trial against the applicant should proceed separately to the trial against Deacon.
[2]A pseudonym. To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant and the complainant’s mother.
The applicant was born in July 1978. At the time of the offences she was in a relationship with Deacon, who was then residing in a bungalow at the rear of premises in Frankston occupied by his sister TD and her four children. The complainant, who was born in January 1999, is the second youngest of the children.
At the time of the incident that was the subject of the charges against the applicant, the complainant was 11 or 12 years of age. On one occasion she was sleeping overnight in Deacon’s bedroom in the bungalow. Deacon and the applicant were in the lounge room of the bungalow. It was alleged that they entered the bedroom, removed their clothes, and removed the complainant’s clothes. Deacon then got on top of the complainant and penetrated her vagina with his penis. While he was doing so, the applicant touched the complainant’s hair and kissed her. She also told the complainant to be quiet as she was crying. That conduct was the subject of charge 1 (sexual penetration of a child under 16 years).
After Deacon had penetrated the complainant, Deacon and the applicant had sexual intercourse together on the same bed in front of the complainant. That conduct was the subject of charge 2 (indecent act with a child under 16 years). Deacon then, for a second time, penetrated the complainant’s vagina with his penis while she was lying on her back. While Deacon was doing so, the applicant touched the back of his head and back. That conduct was alleged to be the subject of charge 3 (sexual penetration of a child under 16 years). At the same time, the applicant also touched the complainant’s breast. That action by her was the conduct alleged in charge 4 (indecent act with a child under 16 years).
A short time later, while the applicant was asleep, Deacon again penetrated the complainant’s vagina with his penis for a third time. Subsequently, and at some point during the night, while Deacon and the applicant were kissing each other, the applicant inserted her fingers into the complainant’s vagina, that conduct being the subject of charge 5 (sexual penetration of a child under 16 years).
On 6 November 2013, the complainant contacted Kids Helpline about emotional difficulties that she was experiencing. During that contact, she disclosed the offending involving Deacon. As a result Kids Helpline contacted the Department of Health and Human Services (DHHS). On the following day, a Victoria Police officer and a DHHS officer attended the complainant’s school, and a disclosure interview was conducted with the complainant. Subsequently, the complainant participated in a visual and audio recorded evidence (VARE) statement at Frankston Police Station on 7 November 2013. In the course of that interview, the complainant produced a short handwritten note which was tendered in the trial as Exhibit 3. In that note she accused Deacon of having raped her, and she said that she had ‘covered it up’ for some years.
Subsequently, on about 12 April 2014, the complainant prepared a second note, that was tendered as exhibit 4 in the trial. In that note, she said that she had left things out of her police statement due to ‘anxiety and being scared and feeling intimidated’. She then said that the applicant had been involved in sexually assaulting her by forcing her fingers inside the complainant’s vagina, licking her vagina, frequently grabbing her breast, and kissing her a lot. She also said that she had sat on the bed while her uncle and the applicant had intercourse. It is that note that is the subject of ground 2. As a consequence of that note, a second VARE statement was taken from the complainant on 24 July 2014. Subsequently, a record of interview was conducted by police with the applicant on 2 September 2014.
At the trial, the evidence of the complainant consisted of the second VARE statement dated 24 July 2014, and recorded evidence that had been taken from her at a special hearing in which she was cross-examined, and which was played to the jury. The complainant’s mother TD participated in a special hearing before the trial, and a recording of her evidence in chief (but not the cross-examination) was tendered as her evidence in the trial. The other witness was the informant, Detective Leading Senior Constable Meyer, who produced the record of interview conducted with the applicant.
Summary of evidence
In the VARE statement, that stood as her evidence in chief, the complainant commenced by stating that she had been raped by her uncle from the age of about 5 to about the age of 12 years, and that she had also been sexually assaulted by her uncle’s girlfriend. She said the last occasion, on which she was assaulted, occurred either on a weekend or in the school holidays. The weather was really cold, and she could remember that she was not wearing socks, and she was walking through the grass and her feet were cold. On the evening of the incident, she was staying overnight in the bungalow. After she had gone to bed in the bedroom, the applicant and Deacon walked into the room, removed their clothes, and removed her clothes. They were then on the mattress together. Deacon lay on top of her, and raped her. While he was doing that, the applicant kissed the complainant and touched her hair. The complainant was crying and screaming at the time, and the applicant told her to be quiet. After that, Deacon again lay on top of her and again raped her. While he was doing so, the applicant was touching Deacon on his back and on his head. Then later in the evening, Deacon again got on top of her and penetrated her. On that occasion the applicant was asleep.
The complainant said that on the second and third occasion, when the applicant penetrated her, it felt uncomfortable and hurt, and his penis felt hard. She also said that at one stage during the evening, Deacon was kissing and touching the applicant. While he did so, the applicant put her fingers in the complainant’s private part, and he also touched her breasts. She also said that at one point Deacon had sex with the applicant who was lying on her back, while the complainant was sitting next to the applicant. The complainant said that that was the only occasion on which Deacon and the applicant had sex in front of her.
The complainant said that the applicant had touched on other occasions by putting her fingers in the complainant’s private part. She said that Deacon often raped her, and he did so three or four times per week. When asked how often the applicant would touch her, she responded that it was ‘the same amount of times’ that Deacon did so. She also stated that, on one occasion, Deacon induced her to put a corset over her denim skirt, and he took a photograph of her wearing it and sent it to the applicant.
When asked who was the first person that she had told about the abuse, the complainant said that when she was in Grade 4 she told her best friend Brooke Fox that her uncle had raped her. She said that she subsequently told her friend Imogen Quelch the same thing, that her uncle had raped her, when she was in Year 7. During the next year, when she was in Year 8, she had a fight with her friend Cassie Wallace at high school. When Cassie asked her why she was ‘such a bitch’ and so angry all the time, the complainant explained that her uncle had raped her when she was younger and so she became frustrated. She said that finally, when she reached 12 years of age, she became really uncomfortable with what her uncle was doing, and she began to be ‘mean and cranky’ whenever he was around.
In further evidence in chief at the special hearing, the complainant described how she contacted Kids Helpline on 6 November 2013, and how on the next day police officers came to her school and spoke to her there. The initial note made by her on that day was tendered (and became Exhibit 3 in the trial).
In cross-examination, the complainant said that when she was between the age of 10 years and 11 years, she was watching the television show Neighbours with her mother. There was a scene on the show about a man who raped a woman. The complainant said to her mother that her uncle had done that to her. She told her mother that it was no longer going on, and that it had stopped one or two years earlier. However, in fact the sexual abuse of her by her uncle had not ceased at that stage. Nevertheless, after the complainant told her mother about it, the sexual abuse ceased, because at that time she changed her attitude to her uncle.
The complainant confirmed that she had also told a number of her friends at school that she had been raped by her uncle. They included Brooke Fox when she was in Year 3, Alexia Kennedy when she was in Year 7, Imogen Quelch, and Cassandra Wallace when she was in Year 8. She agreed that in none of those discussions had she told her friends anything about the applicant sexually abusing her. The complainant agreed that when she contacted Kids Helpline on 6 November 2013, she told the counsellor that she had been raped by her uncle over a period of time. Again, she made no mention about the applicant during that conversation. The complainant further agreed that in the handwritten note that she handed to the police on the next day (Exhibit 3), she had referred to her uncle sexually abusing her, but she did not mention the applicant at all. Similarly, when she was interviewed at Frankston Police Station on that first occasion, she told the police about what her uncle did to her, but she did not say anything about the applicant.
The complainant in cross-examination also said that the applicant stayed at the bungalow on most weekends from Friday to Sunday. She said that, at that time, she also stayed over on sleepovers on almost each occasion that the applicant was there. She agreed that in the second handwritten note (which became Exhibit 4 in the trial), she had alleged that the applicant had licked her vagina. The complainant agreed that she had not made that allegation in the police interview with her. She said that the applicant abused her on almost every occasion on which she stayed at the bungalow when the applicant was there. When it was put to her that that could mean that she was sexually abused by the applicant on 50 or 100 occasions, she responded, ‘Yeah that’s possible’.
In respect of her description of the events that constituted the five charges against the applicant, the complainant confirmed that, in the course of the evening, Deacon had penetrated her on three occasions, that he had penetrated the applicant on one occasion, and that his private part was hard. The complainant confirmed that she complained to her mother about the sexual abuse by her uncle when she was either 10 or 11 years of age, so that she must have made that complaint in 2009 or early 2010. Counsel then put to the complainant that the applicant did not meet Deacon until September 2010. However, she disagreed with the proposition, put by counsel, that the events described by her did not occur.
In re-examination, the complainant said that when she told her friend Brooke Fox about the sexual abuse of her by her uncle, she was 8 or 9 years of age, and when she told her friends at Mount Erin School of the abuse, she was in Year 7. She said that she first contacted the Kids Helpline, because she was scared for her mental health and for her wellbeing, and she told the lady on the telephone that she was motivated to commit suicide. When the lady asked her why she felt that way, the complainant told her about the sexual assault.
At the conclusion of the re-examination, the prosecutor asked the complainant why she did not mention the applicant in any of the complaints about her uncle’s abuse of her until 2014, when she wrote the note that became Exhibit 4 in the proceeding. The complainant responded as follows:
Um, I thought that at some stage she was going to save me, if you will, say something about it, um, confront him about what he was doing, and um when it didn’t arise, I assumed that she was as scared as him ― as scared of him as I was.
In her evidence, TD said that her brother, Deacon, had been diagnosed with diabetes when he was 24 years of age, and over the years it became progressively worse. In late 2003, he came to live with TD and her family in Frankston because his eyesight was then deteriorating. Initially, he moved into the master bedroom in the house. Subsequently, the Ministry of Housing built a bungalow at the rear of the premises where Deacon lived.
TD stated that on one occasion, when she was watching a television program with the complainant which was concerned with sexual abuse, the complainant said to her that Deacon had ‘done that’. TD said that she responded that it was a serious thing to say and that it was really important that it definitely happened otherwise it could ruin someone just to say it. The complainant said that she knew that. In her evidence, TD said that she did not do anything as a result of the complainant telling her about the abuse, and she did not speak to the complainant about it again. She said that her brother was legally blind and insulin dependent, and he had told her that he was impotent, so she did not think anything more about what her daughter had said to her.
TD said that at one stage Deacon had a relationship with the applicant. At that time, TD was busy undertaking a childcare course to enable her to return to work. She also had four children at four different schools. During that time, the complainant and her sister used to get paid money by Deacon and the applicant to do small tasks for them. TD said that, during that time, the applicant would visit Deacon a lot. When she did so, she would sleep over in the bungalow. The longest period of time that she stayed for was for one week. TD said that her children, and in particular the complainant, liked going out and spending time with the applicant, and there were a few times when her children would sleep over in the bungalow. Sometimes both girls would go, but if the youngest daughter did not want to go, then the complainant went on her own.
In her interview with the police, the applicant said that she first met Deacon in late September or early October 2010. Their friendship continued until shortly after Deacon’s arrest in November 2013. During their relationship Deacon was very ill. She would take him shopping and also take him to appointments at the hospital. She said that on a couple of occasions she stayed overnight in Deacon’s unit in the rear of his sister’s premises. She would sleep in the bed and Deacon would sleep on the fold out couch.
The applicant said that she first met Deacon’s nieces and nephews a couple of months after their relationship started. The children would come out to the unit and watch television and then go back to the house at dinner time. The applicant said that she hardly ever saw the complainant. If the complainant came to the unit, she would be sitting with her sister watching television. The applicant said that she only saw the complainant on four or five occasions during that period.
The applicant said that there was not anything ‘really sexual’ in her relationship with Deacon, it was just a good friendship. They would kiss and hug, but at an early stage in the relationship, he told her that he could not get an erection. Accordingly, there was nothing more physical than kissing or hugging. She said that she did send photographs of herself to Deacon, including photographs of her breasts, and a photograph of herself in a bubble bath. She denied that Deacon sent her a photograph of the complainant dressed in a corset. She agreed that the photographs, that she had sent to Deacon, would be classified as sexual. She said that at one stage, although Deacon had told her that he was impotent, she did ‘test that theory out’ with her hand, but there was no reaction. She also said that on one occasion, when she stayed in the bedroom, Deacon attempted to have sexual intercourse with her by lying on top of her, but she did not get any enjoyment from it and she told him to stop. She said that Deacon liked to think that he had a high sex drive, and she agreed that she herself was sexually attracted to Deacon. When pressed further by the police in the interview, she said that when she went back home she was frustrated, and she said, ‘I’ve come back home and fixed myself up …’.
In the course of the interview, the police put to the applicant the specific allegations made by the complainant that were the subject of the five charges against her. The applicant vehemently denied each of the allegations and described them as a lie.
Ground 1 ― submissions
Counsel for the applicant commenced his submissions, in support of ground 1, by noting that the evidence of the complainant was the only evidence of the offences alleged against the applicant. He contended that, in the circumstances of the case, no reasonable jury could have been satisfied, beyond reasonable doubt, of the truthfulness and reliability of the evidence given by the complainant implicating the applicant in the offences with which she was charged.
In support of that submission, counsel focused on the fact that the complainant did not implicate the applicant in the offending, alleged against Deacon, until she compiled the second handwritten note in about April 2014. Counsel contended that no reasonable jury could conclude that the failure of the complainant, to implicate the applicant in the offending alleged against Deacon, until 2014, was consistent with an acceptance of the evidence of the complainant in respect of the offending alleged against the applicant.
Counsel based that submission on four sequential propositions. First, in the second VARE interview, and in her evidence at the special hearing, the complainant consistently and invariably intertwined the allegations that she made against the applicant with the offending that she alleged had been committed against her by Deacon. In particular, on each occasion that the complainant implicated the applicant in alleged abuse of her, she also implicated Deacon as an active participant in the same conduct. Thus, counsel contended, the involvement of Deacon was part and parcel of the conduct alleged against the applicant that was the subject of each of the charges against her.
The second proposition, in the submissions made by counsel for the applicant, was that the first occasion, upon which the complainant made any allegations against the applicant, was in the second note made by her in about April 2014. At the trial, the informant gave evidence that after the complainant had participated in the first VARE statement on 7 November 2013, she engaged in sexual assault counselling with the South Eastern Centre Against Sexual Assault (SECASA). On 12 April 2014, the informant was contacted by a SECASA counsellor and told that the complainant was making further allegations and that they related to the applicant. On 15 April 2014, the counsellor provided the second note, made by the complainant, to the informant, and, as a result, the second VARE statement was taken from the complainant on 24 July 2014. Counsel for the applicant noted that the SECASA counsellor was not called as a witness in the trial, and no evidence was given at the trial as to the circumstances in which the applicant made the second note (Exhibit 4).
The third proposition, relied on by counsel for the applicant, was that, before she compiled that note, the complainant had, on at least eight occasions, made complaints to more than eight separate persons about being sexually abused by Deacon, but on none of those occasions did the complainant mention the applicant or implicate her in that abuse. In particular, the complainant had complained to her friend Brooke Fox when she was aged 8 or 9 years, to three school friends when she was in Year 7 or Year 8 at school, to her mother when she was aged 10 or 11 years, and to the Kids Helpline on 6 November 2013, without disclosing or mentioning the offending that she subsequently alleged against the applicant. In addition, and, counsel submitted, significantly, in the first VARE interview conducted on 7 November 2013, the complainant did not inform the police, at all, about the involvement of the applicant in the abuse of her by Deacon. The statement was taken over a period of one hour and ten minutes. The complainant and the informant each gave evidence as to the manner in which the interview was conducted. At the commencement of the interview, she was told to tell the interviewer everything that she came to talk about, and she was asked to provide as much detail as she could. The complainant was told not to leave anything out, even if she thought it might not be important. In cross-examination, the complainant agreed that she told the interviewer everything that she remembered that was important, that at the end of the interview she was again asked if there was anything else that she wished to tell the police, and that at no time during that first interview did she make any mention of the applicant.
The fourth proposition, in the argument of counsel for the applicant, was that the complainant, in her evidence, did not provide any adequate explanation why she did implicate the applicant in any of the complaints she made about the abuse perpetrated by Deacon, until she wrote the second note in April 2014. Counsel submitted that when the complainant was asked by the prosecutor why she had not mentioned the applicant in the complaints she had made about her uncle’s abuse until 2014, the answer given by the complainant did not respond to that question, and did not provide any explanation for the omission by her of any reference to the applicant in any of the complaints made by her about Deacon’s abuse of her until April 2014.
In those circumstances, counsel submitted, a jury could not reasonably conclude that the failure of the complainant to implicate the applicant in her complaints of abuse by Deacon until 2014, was consistent with the truthfulness of the evidence that she gave, in the second VARE statement, and in the special hearing, as to the commission by the applicant of the offences charged against her. Accordingly, it was submitted, the jury’s verdicts were unreasonable and cannot be supported having regard to the evidence led at the applicant’s trial.
In response, senior counsel for the respondent pointed to the evidence given by the complainant at the special hearing, in which she explained that she did not mention the applicant in her complaints about her uncle’s abuse until 2014, because she considered that the applicant, like her, was also a victim, and that the applicant would save her from her uncle’s abuse. Counsel also referred to the evidence given by the complainant, in re-examination in the special hearing, that at the time that she contacted Kids Helpline, she was scared for her own mental health and well-being and was motivated to commit suicide. Thus, when she first spoke to the police, on the following day, she was in an emotionally distraught state. In the second note, written by the complainant in April 2014, she explained that she had omitted matters from her first police statement due to her anxiety and because she felt scared and intimidated. Counsel for the respondent contended that it was open to the jury to accept the explanation given by the complainant why she did not refer to the applicant on any of the occasions upon which she had either complained, or spoken to the police, about the sexual abuse to which she had been subjected by Deacon.
Analysis and conclusions on ground 1
The first ground of appeal, relied on by the applicant, is based on s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), which requires that the Court allow an appeal if it is satisfied that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.
The principles, that are applicable to that ground of appeal, have been restated by the High Court on a number of occasions during the last two decades since its decision in M v The Queen.[3] In Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) stated the test in the following terms:
But the question for an appellate court is whether it was ‘open’ to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury ‘must’, as distinct from might have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[4]
[3](1994) 181 CLR 487.
[4]Ibid 596–7. See also SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ).
In R v Klamo,[5] this Court summarised the relevant principles in the following terms:
The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[6]
[5](2008) 18 VR 644. See also Badem v The Queen [2016] VSCA 200 [40]–[47] (Warren CJ, Weinberg and Priest JJA).
[6]Ibid 653–4 [38] (Maxwell P, Vincent and Neave JJA). See also O’Reilly v The Queen [2015] VSCA 19 [22]; Meade v The Queen [2015] VSCA 171 [11].
In its recent decision in R v Baden-Clay,[7] the High Court emphasised the stringent nature of the test which is applicable to the ground relied on by the applicant. The Court stated:
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[8]
[7](2016) 258 CLR 308.
[8]Ibid 329 [65].
In determining ground 1 of the application, it is necessary to consider the issues, raised by the applicant, in the context of the trial as a whole. In particular, counsel for the applicant did not contend, on this application, that the jury was not entitled to conclude, beyond reasonable doubt, that the complainant had been subjected to sexual abuse by Deacon. The complainant’s evidence to that effect, as contained in the second VARE interview, was not the subject of any challenge by counsel for the applicant in the special hearing. Further, in the special hearing, and at the trial, counsel did not challenge the evidence given by the applicant that, on a number of occasions, she had complained to school friends of the abuse committed against her by Deacon. The complainant’s evidence, that she complained to her mother (TD) about that abuse, was supported by the unchallenged evidence of her mother that was part of the evidence in the trial. Indeed, counsel for the applicant, in the special hearing, relied on the evidence of the complaints in order to make the point that, when the complainant made each such complaint, she did not refer to or mention the applicant at all.
The only evidence, that put the question of the abuse by Deacon in issue in respect, was the statement by the applicant, in her police interview, that Deacon was impotent, and evidence by TD that she had been told by her brother that he was impotent. In his final address to the jury, counsel for the applicant brushed lightly over that issue. On two separate occasions, he referred to the assertions by the applicant, and the evidence by TD, as to the lack of Deacon’s sexual capacity. However, in doing so, he did not put in issue the question whether Deacon had engaged in sexual abuse of the complainant.
In those circumstances, the jury was entitled to accept that the complainant’s evidence, that her uncle had sexually abused her over a lengthy period of time, was honest and credible evidence.
That proposition, of course, does not resolve the issues raised under ground 1. However, it does provide a relevant starting point in respect of them. The critical question, which must be addressed, is whether it was reasonably open to the jury to be satisfied, beyond reasonable doubt, that the applicant had been involved in the abuse of the complainant that had been engaged in by Deacon, notwithstanding that the complainant did not mention or refer to the applicant in any of the complaints that she made about that abuse until she compiled the second note in April 2014.
It can be accepted that if the complainant had not put forward a credible explanation as to her failure to refer to or mention the applicant in the complaints that she made about the abuse until that date, the submission made on behalf of the applicant would be of substantial force in the determination of ground 1. In short, if there were no explanation, that could be reasonably accepted by the jury, as to why the complainant did not mention the applicant in any of those complaints, it might be accepted, on this application, that the jury could not have reasonably come to the conclusion, beyond reasonable doubt, that the applicant was a truthful and reliable witness in implicating the applicant in the abuse perpetrated upon her by Deacon.
In considering that question, it is important to bear in mind that the specific issue, that is so raised by this application, is whether the jury could be reasonably satisfied that the complainant gave a reason or explanation, which was truthful, as to why she did not mention the applicant in any of the complaints that she made about Deacon’s abuse of her, in circumstances in which, as a matter of ordinary human experience, it would be expected that she would have done so. Expressed in that way, the critical question for the jury was not whether any explanation given by the complainant, for her failure to mention the applicant in the complaints, was reasonable or logical. Of course, the reasonableness of the explanation given by the complainant might be relevant to the determination of whether she had an honest reason for her omission of any such mention of the applicant in her complaints of abuse. However, ultimately, the critical question, that the jury had to resolve, was concerned with the actual state of mind of the complainant when she made the complaints about Deacon.
In addressing that question, it was relevant and indeed necessary for the jury to take into account the particular subjective circumstances in which the complainant found herself at the times at which she made the complaints that were the subject of the evidence. In that respect, the complainant gave important evidence, both in the second VARE interview, and in the special hearing, concerning the circumstances in which she found herself at that time, and as to the matters that were operating on her that were relevant to the issue that must now be determined. In the VARE interview, the complainant said that she was scared of Deacon, because when he got angry with her he would ‘shout and swear and, like, run at me’. She said that on those occasions Deacon said to her ‘… if I told anyone no-one could prove it or no-one would believe me because I’m so young’. In the second note written by her, the complainant said that Deacon had told her that what had occurred between them was ‘our little secret’.
It is in that context that the complainant, eventually, revealed to her mother that Deacon had been abusing her. The unchallenged evidence was that her mother responded to that disclosure by not believing her daughter. In re-examination in the special hearing, when asked about how she felt when her mother did not believe her, the complainant said that she became upset. She said:
I felt frustrated that he had ― my uncle hadn’t (sic) mentioned before that I was a child and that if I had put it to any adult, that that was what happened, that no-one would listen to me and I was ― I thought he was wrong and that had sort of proved that he was right and that had frustrated me.
The complainant was then asked (in re-examination) what did she do as a result of the conversation she had with her mother, and she responded that she ‘just stopped talking to everyone completely … completely isolated myself in my room’.
Pausing there, based on that evidence, the jury was entitled to accept that the complainant had a good reason to be diffident about disclosing at all, let alone in full, the nature of the sexual abuse to which she had been subjected by Deacon. Certainly, she did mention the abuse to her school friends, in circumstances in which she did not implicate the applicant in it. However, the jury was entitled to take into account the complainant’s evidence that she had been admonished by Deacon, that no-one would believe her account, so that when she did bring herself to reveal the abuse, both to her friends and to her mother, she may well not have been inclined to reveal the totality of it. In that respect, it is relevant that the complainant’s evidence is that, on each occasion, she did no more than reveal to her friends, and then to her mother, that she had been raped by her uncle. There was no evidence that she gave any details to any of those people about the nature, extent or circumstances of the abuse.
Counsel for the applicant placed substantial weight, in his submissions, on the failure of the complainant to reveal to the Kids Helpline, or to the police, in the first VARE statement of 7 November 2013, the involvement of the applicant in the abuse committed against her by Deacon. However, again, the evidence as to the subjective circumstances of the complainant, at that time, was important. First, as just mentioned, the complainant had made a complaint to her mother as to the abuse of her by her uncle. The complainant’s mother’s response bore out, in full measure, Deacon’s admonition that no-one would believe her. Secondly, the jury was entitled to accept that, by the time when the complainant made contact with the Kids Helpline, she had, over a number of years, from her early childhood, been subjected to repeated sexual abuse by her uncle. In re-examination in the special hearing, the complainant was asked to describe the circumstances in which she engaged with the Kids Helpline. She said:
… I was scared for my mental health and for my wellbeing and wanted to speak to someone that would make me feel secure within myself … It [the contact with the hotline] started with um me telling the lady on the phone that um I was feeling motivated to commit suicide and that I would appreciate someone talking me out of it. … [S]he had asked me um why I was feeling that way and that’s how the sexual assault had come out.
Two important points emerge from that evidence. First, the focus of the contact with the Kids Helpline was not to implicate the complainant’s uncle in the abuse; rather, it was an urgent cry for help by a troubled adolescent who was contemplating ending her own life. That was the mental state of the complainant at the time. It was that matter that was the focus of her contact with the hotline. In those circumstances, the jury would be well justified in understanding why, at that particular point, the complainant did not then mention the involvement of her uncle’s girlfriend in the abuse. Rather, on the evidence, the focus of the discussion was on the complainant’s mental health, and her need for help, and the cause of that need.
Secondly and importantly, it is in that context that the complainant was contacted, on the next day, by police and a member of the Department of Health and Human Services, concerning the communication that she had had with the Kids Helpline on the previous evening. In her second note in April 2014, the complainant commenced by stating:
Things I left out of my police statement due to anxiety and being scared and feeling intimidated.
Thus, while the evidence indicated that in the course of the first VARE, the police gave the complainant every opportunity to reveal the totality of the abuse to which she had been subjected, the jury was entitled to take into account the explanation by the complainant that at that time she was in a difficult emotional state, being affected by anxiety, fear and a feeling of being intimidated.
Further, and in that context, at the conclusion of her re-examination, the complainant was asked by the prosecutor why she did not mention the applicant in any of the complaints about the abuse of her by her uncle until she wrote the second note in 2014. The complainant’s response, which we have set out earlier,[9] was that, at that stage, she thought that the applicant was going to save her and confront Deacon about what he was doing, and that when the applicant did not do so, she realised that the applicant was as scared of Deacon as she was.
[9]See [22] above.
In that way, the complainant explained that, throughout that time, she had considered that the applicant could be her saviour from the abuse to which she had been subjected by Deacon. If that explanation had been given to a jury by an adult complainant, it might readily be rejected. However, the jury had before it a complainant who, at the time that was relevant, was a young adolescent, who had been subjected to the trauma of repeated abuse by her uncle since she was five years of age, and who, by late 2013, was in a poor emotional and psychological state.
The explanations given by the complainant, and to which we have just referred, were not the subject of cross-examination. In the special hearing, counsel for the applicant, in cross-examination did not ask the complainant, at any stage, why she had not implicated the applicant in any of the complaints that she had made about the offending. That method of cross-examination was a forensic choice by counsel for the applicant at trial. However, it left that critical question unasked, so that the explanations given by the complainant, in re-examination, were not the subject of any challenge or cross-examination.
Taking all those matters into account, in our view the jury was entitled to be satisfied, beyond reasonable doubt, of the truthfulness of the explanations given by the complainant for her failure to implicate the applicant in the offending, perpetrated on her by her uncle, until 2014. While, as discussed, the complainant’s explanations may not have been reasonable or logical, from the perspective of an adult, nevertheless that was not the question that the jury had to consider. Rather, it was for the jury to assess whether it was satisfied that the complainant had a genuine reason for not referring to the applicant when she made her complaints about the abuse of her by her uncle. Taking into account the matters to which we have just referred, we are not persuaded that the jury could not have been reasonably satisfied, beyond reasonable doubt, that the complainant subjectively had such a reason for not disclosing those matters in the complaints that she made of abuse until she wrote the second note in April 2014.
In those circumstances, the applicant has failed to make out the fourth, and critical, premise in his submission in support of ground 4. Although in the written case previous counsel had sought to rely on other matters, in support of ground 1, counsel for the applicant, in the hearing before us, disavowed reliance on those matters. In our view, he was correct in doing so, as none of those matters, either collectively, or individually, would add any support to the ground of appeal relied on.
During oral submissions, counsel for the respondent invited us to view the VARE interview of the complainant, and the recording of the special hearing. Counsel for the applicant opposed that course. He submitted that the point that was to be determined, on this application, could not be resolved by the Court’s assessment of the manner in which the complainant had conducted herself in the VARE interview and in the special hearing.
We have refrained from viewing the VARE interview or the recording of the special hearing. For the reasons we have set out, we are not persuaded by the submissions made by counsel for the applicant under ground 1. In circumstances in which counsel for the applicant did not contend that the applicant’s case under ground 1 would in any way be enhanced by a viewing of evidence given by the complainant, we do not consider that it would be appropriate, in the circumstances of this application, for us to engage in our own subjective assessments of the presentation of evidence by the complainant at the trial.
For the foregoing reasons, the applicant has failed to make out ground 1.
Ground 2 – submissions
Ground 2 concerns the admission into evidence (as Exhibit 4) of the second note compiled by the complainant in April 2014. In particular, counsel for the applicant submitted that the note was tendered at the trial under the mistaken belief by counsel that it had been tendered in evidence at the special hearing, and that it contained material that was prejudicial to the applicant. Accordingly, it was contended, the admission of the document into evidence resulted in a substantial miscarriage of justice pursuant to s 276(1)(b) of the Criminal Procedure Act.
When the complainant gave evidence at the special hearing that was conducted in August 2016, the prosecutor read to her, and she adopted, the first paragraph of the note. In cross-examination, counsel, who was then acting for the applicant, confined his cross-examination to the content of the note that had been read to the complainant by the prosecutor, in order to elicit from the complainant that the note was the first occasion on which she had referred to the applicant in the context of sexual abuse that had been committed against her. Counsel also put to the complainant, in cross-examination, that the complainant had said in the note that the applicant had practised oral sex on her, which was an allegation that she had not made in the VARE statement taken by the police from her.
Based on those passages in the special hearing, counsel submitted, on this application, that the parties on each side had made confined and specific use of the note during the special hearing, and the note itself was not tendered in evidence at that hearing.
Counsel noted that, when the trial commenced in February 2018, the applicant was represented by a different member of counsel. On this application, counsel submitted that counsel, who acted on behalf of the applicant at the trial, was under a misapprehension that the note had been tendered in the special hearing, and therefore he felt precluded from objecting to its tender as an exhibit in the trial. Counsel then referred to two aspects of the note which, he submitted, were particularly prejudicial to the applicant. First, the allegation in the note that the applicant had tried to convince Deacon to permit her 16 year old son to have sex with the complainant. Secondly, the note contained some detailed descriptions of other abuse perpetrated by Deacon against her. Counsel contended that those parts of the note were unfairly prejudicial to the case of the applicant, and there was no potential forensic advantage to the applicant in having those passages of the note retained in the document that was tendered into evidence. Accordingly, it contended that the note had been wrongly introduced into evidence, and that as such it had resulted in a substantial miscarriage of justice to the applicant.
In response, counsel for the respondent contended that counsel for the applicant at trial had not acted under any misapprehension or mistake in not opposing the tender of the note in the form containing the two matters relied on by counsel for the applicant in this application. Counsel for the respondent noted that, in his final address to the jury, counsel for the applicant, at the trial, had made the point that the complainant had been prepared to add new allegations against Deacon, on each occasion on which she recounted the complaints of abuse by him. In particular, counsel at the trial had contended to the jury that the applicant had continually added new allegations to the complaints that she made in respect of abuse of her, and that accordingly her evidence should not be accepted.
In our view, the submissions made on behalf of the respondent are correct.
It is clear that exhibit 4 was not specifically tendered in the special hearing, although it was used, by both parties, in evidence in chief and in cross-examination. At the commencement of the trial, before the jury was empanelled, counsel for the applicant, in discussions with the judge, observed that the document had been ‘tendered at the previous special hearing at the relevant portion when concerning these notes’. The judge then asked the prosecutor whether it was proposed that the document would be ‘tendered again’. The prosecutor responded that he did intend to tender the document at trial. The judge then asked defence counsel if he wished to make any submission about it. Counsel for the applicant responded that he might have taken a different course with respect to the document if he ‘wasn’t bound by what had happened in the special hearing’. The judge immediately disabused counsel on that notion, by stating ‘you’re not bound by anything’. Counsel then said:
Well, I am in the sense that forensically it’s been elicited and dealt with in the special hearing. My hands are tied to a degree with how I have to conduct the case with respect to this document. So I sought and it’s been agreed that the two amendments of the document occur.
Counsel then confirmed to the judge that the amendments to the document constituted the redactions, that are evident in the document that was ultimately tendered at trial as Exhibit 4. Those redactions had been requested by counsel for the applicant. They consisted of editing out any reference to another girlfriend of Deacon who had been alleged to have participated in abuse of the complainant by Deacon. Counsel noted that ‘that woman won’t be raised at all in the course of this trial‘.
Thus, although counsel for the applicant at trial was initially of the understanding that the document, that had been used at the special hearing, would need to be tendered in some form, he was informed by the judge, and understood, that he was not bound by what had occurred at that hearing. Further, at the request of counsel for the applicant, certain passages in the document were edited out of it by redacting them. In that way, it is abundantly clear that counsel for the applicant made a conscious decision as to the aspects of the document that needed to be deleted from it, and as to what parts of the document should be tendered in evidence.
On this application, counsel for the applicant contended that there could not have been any feasible forensic purpose for the inclusion in the document of the two aspects to which he now takes exception. However, as counsel for the respondent has pointed out, in his final address, counsel for the applicant, while not specifically adverting to those passages, made use of them, in order to endeavour to impugn the credibility and reliability of the evidence of the complainant. In particular, in the course of his final address to the jury, he said:
What about the next question I asked you, is the complainant’s account unchanging or does TD continue to make new allegations and add to the allegations as time goes on. She does continue to add to them, doesn’t she? She does continue to make new allegations. There’s the note, without specific allegation. There’s then an allegation or allegations made in the VARE, and then there’s a bunch of new allegations that had come out in the special hearing, none of which have been referred to before, just added to constantly, new allegations.
In those circumstances, it is clear that trial counsel made a forensic judgment that the note be admitted into evidence containing the passages, which counsel on this application has contended were prejudicial to the case of the applicant. It is not for this Court to second guess forensic decisions made by counsel at trial, except where it is evident, on the materials, that such decisions were fundamentally flawed.[10] In the present case, the decision by counsel at the trial could not be so described. There was a clear potential advantage to be derived by the applicant from the retention in the note of the two aspects on which counsel for the applicant now seeks to rely. It was a matter for the judgment of trial counsel whether that potential advantage outweighed any possible disadvantage arising from the inclusion of those aspects in the document that was tendered as Exhibit 4 in the trial. In the circumstances of this case, it could not be said to have resulted in a miscarriage of justice.
[10]See, eg, Cavanagh v The Queen [2016] VSCA 305 [100]–[102]; Arico v The Queen [2018] VSCA 135.
Further, we doubt that, in any event, the passages in the note on which counsel for the applicant now relies, were as prejudicial as counsel has maintained. Ultimately, the outcome of the trial was to be determined by the jury’s assessment of the credibility and reliability of the evidence of the complainant. The sections of the note, referred to by counsel on this appeal, did not of themselves, in any relevant way, enhance the credibility of the complainant; rather, as discussed, counsel for the applicant at trial sought to rely on them as a means to undermine the credibility of the complainant as a witness.
For those reasons, the applicant has failed to make out ground 2 of the application for leave to appeal against conviction.
Application for leave to appeal sentence
The applicant relied on three proposed grounds of appeal against sentence. Ground 2 has subsequently been abandoned. The remaining grounds are:
1.The learned sentencing judge erred in making orders for cumulation as between charges 1, 3 and 5, that in all the circumstances were manifestly excessive and resulted in a total effective sentence that is manifestly excessive.
3.The learned sentencing judge erred in considering as an aggravating feature an absence of insight or remorse.
For reasons which we will outline below, we consider Ground 3 is made out, so that leave to appeal should be granted in respect of that ground, the appeal allowed and the applicant resentenced. Accordingly, it is not necessary for us to consider Ground 1.
Ground 3
In thorough and carefully considered reasons for sentence, the judge outlined the circumstances of the offending in respect of each charge. His Honour appropriately noted the depraved conduct in which the applicant participated.
At paragraph 39 of the sentencing reasons, his Honour then set out ‘the aggravating features’ of the applicant’s offending. We shall reproduce them.
1.Your victim was well known to you as a result of your numerous visits to Mr [Deacon]’s granny flat. At the time of the offending you were a mature aged woman aged between 32 and 33 and had two children of your own.
2.As such your victim, when she came to the granny flat, ought to have expected you to be a responsible adult. You were not. You had an obligation to protect her, you did the opposite.
3.You did so by your active participation in depraved sexual conduct, the subject of the charges on indictment in relation to you. This involved a gross breach of trust in relation to a 12 year old girl.
4.This offending occurred in the granny flat but metres away from the main home of the complainant.
5.This offending was brazen occurring at night when her family were in the main home with the following morning her mother and one of the siblings coming to the granny flat to find her still there.
6.You joined with Mr [Deacon] to commit these offences on the last occasion as if a team.
7.You actively participated in acts of depravity as exampled by your digital penetration of your victim, Charge 5.
8.You have no regard to the consequences of your offending.
9.The consequences have been profound, if not catastrophic, and finally;
10.You too have no insight and demonstrated no remorse.[11]
[11]Emphasis added.
Items 8 and 10 repeated features of aggravation that his Honour had already found against the applicant’s co-accused. The applicant contended that in so characterising this lack of insight and/or remorse, his Honour fell into error, as the features found by his Honour constituted an absence of factors that may tend to mitigate sentence, rather than aggravating factors.
The respondent contended that, in the paragraph of the reasons on which the applicant relied, the judge did not intend to use the phrase ‘aggravating features’ in its technical legal sense. Rather, he submitted, in that paragraph the judge did no more than indicate each of the factors that negatived any submissions made on behalf of the applicant in mitigation of sentence. Counsel noted that the trial judge is a most experienced trial judge who well understands the principles of sentencing and who would not, accordingly, have been using the term ‘aggravating features’ to denote factors that added to or aggravated the moral culpability of the applicant.
Notwithstanding the force of these submissions, we consider that, on a plain reading of the reasons for sentence, the judge must be understood to have been referring to circumstances of aggravation when he enumerated the 12 ‘aggravating features’ to be found in paragraph 39 of the sentence. ‘Aggravating features’ is a commonly employed term of art in sentencing jurisprudence. Further ‘aggravating features’ 1 to 7 and 9 are orthodox circumstances of aggravation, ordinarily understood to be so. Accordingly, we accept the submission made on behalf of the applicant that the section of the judge’s reasons that is in issue must be understood as denoting factors that the judge regarded as aggravating the applicant’s offending.
It is well understood that while remorse and associated concepts, such as insight, are treated by sentencing courts as factors that may tend to mitigate sentence,[12] their absence does not constitute a feature of aggravation. Callaway JA put the proposition succinctly:
[W]hilst remorse is a circumstance of mitigation, its absence is not an aggravating factor.[13]
[12]See for example Mune v The Queen [2011] VSCA 231; R v Duncan [1998] 3 VR 208; R v Kumar [2002] VSCA 139.
[13]R v Duncan [1998] 3 VR 208, 215.
We consider that by treating lack of remorse, insight or regard for the consequences of the offending as aggravating features, his Honour’s sentencing discretion has miscarried and Ground 3 has been made out. We should add that in all other respects, this very difficult sentencing task is a model of clarity and industry.
As it will be necessary to re-sentence the applicant it is unnecessary to consider the manifest excess ground.
Re-sentence
In his sentencing remarks his Honour set out a brief factual summary of the offending and then characterised the overall consequences of the offending (including the co-accused’s offending) as profound or catastrophic. His Honour noted that ‘the depravity of the conduct of both of you in the last incident is breathtaking.’
We consider his Honour was correct in characterising the applicant’s conduct in those terms. The complainant was just 11 or perhaps 12 years of age at the time of the offending. While her uncle was penetrating her vagina with his penis, the applicant stroked her hair, kissed her and told her to be silent. The applicant then had sexual intercourse with her co-accused in the presence of the child. The co-accused then inserted his penis into the complainant’s vagina a second time. While this was happening the applicant touched the child’s head and back. The applicant then touched the complainant’s breasts and later that night she inserted her fingers into the complainant’s vagina. This was indeed serious offending.
Other uncharged sexual misconduct was alleged against the applicant. His Honour correctly noted that that misconduct would not form any part of his sentence but its presence meant the applicant was precluded from developing a submission that this was an isolated aberration.
His Honour, again correctly, considered that the primary sentencing consideration was general deterrence. He noted that the applicant at 40 years of age had no criminal history, was a mother of two young adults and was from a solid family background. He further noted that she married in 2002. She separated in 2009 but remained living under the same roof as her husband who continued to care for the children in the applicant’s absence. His Honour considered that, in his view, the applicant was, in effect, less morally culpable than her co-accused. She did not have a familial relationship with the complainant and her breach of trust was less than that exhibited by the co-accused. Correctly, in our view, his Honour considered that there ought be disparity in sentencing between the applicant and the co-accused. His Honour considered there to be a need for just punishment and denunciation by the court for offending of high moral and legal culpability. We agree with this approach and also agree with his Honour that the principle of totality had application in both sentences he imposed. In applying the principle of parity in the present case, it is necessary to take into account, first, that due to his serious health issues, the sentences imposed in Deacon (a pseudonym) v The Queen[14] are to be moderated as the sentence will be more burdensome on him. In addition, as the total sentence to be imposed in Deacon will be substantial, the issue of totality has more application. As Redlich JA observed in Azzopardi v The Queen,[15] the severity of a sentence increases exponentially as it increases in length.
[14][2018] VSCA 257 (‘Deacon’).
[15][2011] VSCA 372 [62].
As we said in the appeal of Deacon, the High Court recently has reminded us of the profound and destructive consequences of this type of offending. The consequences to this complainant answer that description and include suicide attempts, drug and alcohol abuse, homelessness, eating disorders, insomnia and social anxiety. Not all of these consequences can be attributed to the applicant but nor can she be totally absolved. Her conduct, like that of her co-offender, was reprehensible. To borrow the sentencing judge’s word, it was ‘despicable’.
We shall re-sentence the applicant as follows:
| Charge on Indictment F13915986.2 | Offence | Maximum | Sentence | Cumulation |
| 1 | Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) | 15 years’ imprisonment [s 45(2) Crimes Act 1958 (Vic)] | 3 years’ imprisonment | 9 months |
| 2 | Indecent Act with Child Under 16 | 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] | 1 year’s imprisonment | Nil |
| 3 | Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) | 15 years’ imprisonment [s 45(2) Crimes Act 1958 (Vic)] | 3 years’ imprisonment | 9 months |
| 4 | Indecent Act with Child Under 16 | 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] | 6 months’ imprisonment | Nil |
| 5 | Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) | 15 years’ imprisonment [s 45(2) Crimes Act 1958 (Vic)] | 3 years and 6 months’ imprisonment | Base sentence |
| Total Effective Sentence: | 5 years’ imprisonment | |||
| Non-Parole Period: | 3 years | |||
| Pre-sentence Detention Declared: | 243 days | |||
| 6AAA Statement: | Not Applicable | |||
| Other orders: - Forensic Sample Order; - Registered on the Sex Offenders Registration Act 2004 (Vic) for a period of 15 years; and - Sentenced as a Serious Sexual Offender on charges 3, 4 and 5. | ||||
It will be apparent that we have made orders for significant but not total cumulation. We have adopted the usual practice[16] of selecting, in our view, the sentence imposed on the most serious offence as the base sentence. We note that the applicant falls to be sentenced as a serious sexual offender on counts 3, 4 and 5. We do not impose orders for total cumulation (as is available under s 6E of the Sentencing Act 1991 (Vic)) as, in our view, to do so would infringe the principle of totality and be unjust in all the circumstances. We have moderated the impact of that consideration. however in deference to the counterveiling serious sex offender legislation.[17]
[16]See for example Djordjic v The Queen [2018] VSCA 227.
[17]Sentencing Act 1991 (Vic) ss 6B, 6C, 6D and 6E.
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