Soo v The Queen
[2014] VSCA 304
•25 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0047
| LIN SENG SOO |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | WEINBERG, WHELAN and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 November 2014 |
| DATE OF JUDGMENT: | 25 November 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 304 |
| JUDGMENT APPEALED FROM: | DPP v SLS [2014] VCC 109 (Judge Cannon) |
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CRIMINAL LAW – Appeal against sentence – Indecent acts with child under 16 years – Common assault –Production of child pornography – Total effective sentence of 5 years – Non-parole period of 3 years – Appellant caring for complainant – Great age disparity – Gross breach of trust - Significance of ‘comparable cases’ – Sentence not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr John McLoughlin | Victoria Legal Aid |
| For the Crown | Mr D Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I have had the advantage of reading in draft the reasons for judgment prepared by Santamaria JA. I agree with his Honour that this appeal should be dismissed.
WHELAN JA:
I agree with Santamaria JA.
SANTAMARIA JA:
In October 2013, the appellant (now aged 61), was found guilty of five charges related to sexual offending against a child under 16. Following a plea, the appellant was sentenced on 21 February 2014 as follows:[1]
[1]DPP (Vic) v SLS [2014] VCC 109 (‘Reasons’).
| Charge | Offence | Maximum Penalty | Sentence | Cumulation |
| 1 | Indecent act with a child under 16 [s47(1) of the Crimes Act 1958] | 10 years | 14 months | + 3 months |
| 2 | Common assault [Common Law] | 5 years | 1 month | - |
| 3 | Indecent act with a child under 16 [s47(1) of the Crimes Act 1958] | 10 years | 4 years 6 months | Base |
| 4 | Produce child pornography [s68(1) of the Crimes Act 1958] | 10 years | 8 months | + 1½ months |
| 5 | Produce child pornography [s68(1) of the Crimes Act 1958] | 10 years | 8 months | + 1½ months |
| Total Effective sentence: | 5 years’ imprisonment | |||
| Non-Parole Period: | 3 years | |||
| Pre-sentence detention declared: | 114 days | |||
| Other orders:
| ||||
Ground of Appeal
On 23 July 2014, Osborn JA granted leave to appeal on the following ground:
1.The sentence imposed on Charge 3 and the total effective sentence are manifestly excessive having regard to:
a.The limited nature of the offending;
b.The [appellant’s] age, previous good character and good prospects of rehabilitation;
c. His poor physical health;
d. His strong sense of shame for disgracing his family;
e.The findings that he would find imprisonment more onerous than an ordinary prisoner and that prison would have a deleterious effect on his mental health; and
f. Current sentencing practices.
At the hearing of the appeal, counsel for the appellant confirmed that his only contention was that the individual sentence for Charge 3 was ‘wholly outside the range of sentencing options available’ to the sentencing judge. No complaint was made in respect of the other individual sentences; no complaint was made in respect of cumulation.
This Court has limited jurisdiction to interfere with sentences imposed by a sentencing judge. In Markarian v The Queen,[2] Gleeson CJ, Gummow, Hayne and Callinan JJ described the well-established principles as follows:
[2](2005) 228 CLR 357.
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.[3]
[3]Ibid 370–1 [25] (citation omitted).
In R v Williscroft,[4] Adam and Crockett JJ said that ‘ultimately every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process.’[5]
[4][1975] VR 292 (Adam, Starke and Crockett JJ).
[5]Ibid 300. See Markarian v The Queen (2005) 228 CLR 357, 384-390 for McHugh J’s explanation of the origin of the phrase ‘instinctive synthesis’ in Williscroft and of its proper meaning.
In R v Kenny,[6] Young CJ said:
[6](Unreported, Court of Criminal Appeal Melbourne, 2 October 1978).
In order to make good a submission that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration. As the majority of the Court said in Williscroft’s Case, to which reference has been made during the course of argument, the imposition of a sentence is in the last resort an individual sentencing judge’s instinctive synthesis of the various factors involved, and when application is made to this Court for leave to appeal on the ground that a sentence imposed in the Court below is excessive, the approach of the members of this Court must, I think, necessarily be the same. Each member of the Court instinctively synthesises the relevant considerations and, having done so, considers whether in all the circumstances he is able to say that the sentence imposed is so obviously excessive that there must have been some miscarriage in the trial Judge’s discretion.[7]
[7]Ibid 2–3.
In Director of Public Prosecutions (Vic) v Karazisis,[8] Ashley, Redlich and Weinberg JJA (with whom Warren and Maxwell P relevantly agreed) said:
[8](2010) 31 VR 634.
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was “wholly outside the range of sentencing options available” to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[9]
[9]Ibid 662-663 [127]–[128] (citations omitted). The reference to the High Court is to Lowndes v The Queen (1999) 195 CLR 665, 671-672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
Care must be taken to ensure that the term ‘range’ in the phrase ‘was outside the range reasonably open to the sentencing judge in the circumstances’ is correctly understood. In Barbaro v The Queen,[10] French CJ, Hayne, Kiefel and Bell JJ said:
[10](2014) 88 ALJR 372 (‘Barbaro’).
The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order ‘is unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’. In the field of sentencing appeals, this kind of error is usually referred to as ‘manifest excess’ or ‘manifest inadequacy’. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.[11]
[11]Ibid 377 [26] (citation omitted) (emphasis in original).
In that case, the Court said that, while it was proper for a sentencing judge to have regard to ‘sentencing statistics’ and ‘comparable cases’, a ‘range’ should be identified only after the proper application of all relevant sentencing principles to the particular circumstances of the case in hand; ‘range’ was not to be predicated on the appropriateness of a sentence for a particular offence abstracted from the circumstances of the particular offending and those of the particular offender.
In Lowndes v The Queen,[12] the High Court emphasized that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.[13]
[12](1999) 195 CLR 665.
[13]Ibid 671–2 [15].
At the hearing of the appeal, the appellant contended that the sentence imposed on Charge 3 was outside the range of sentences reasonably open. In both written and oral submissions, the Court was referred to a large number of cases in which offenders had been sentenced for indecent acts with children under 16. These cases were said to be ‘comparable’ and, when considered together, should have informed the sentencing by the judge.
Care must be taken with the idea of ‘comparable cases’. In Barbaro,[14] the High Court sanctioned the use by a sentencing judge of ‘comparable cases’ and sentencing statistics. French CJ, Hayne, Kiefel and Bell JJ said:
[14](2014) 88 ALJR 372.
The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.[15]
[15]Ibid 379 [40]. See also Hili v The Queen (2010) 242 CLR 520, 535-536 [48]‑[49].
In Hudson v The Queen,[16] this Court addressed the significance of ‘comparable’ or ‘similar’ cases:
[16](2010) 30 VR 610 (‘Hudson’).
The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.
Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this Court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here.[17]
[17]Ibid 616–7 [27]–[29] (citations omitted).
Circumstances of the offending[18]
[18]This description of the circumstances is drawn from the Leave Reasons of Osborn JA dated 23 July 2014.
The appellant was aged 58 at the time of the offending, and 60 when sentenced. The complainant was a girl aged six when the offences occurred. The appellant and his wife knew the complainant and her parents through a local community group and for a period of about 18 months prior to the offending had looked after the complainant on Sundays while her parents worked.
The offences occurred when the appellant was minding the complainant at his home. While they were watching TV the appellant pulled down his pants, exposed his penis and said to the complainant ‘lick it and open the hole’ (Charge 1).
The complainant repeatedly refused to do to this. The appellant then dragged or pulled the complainant into his bedroom (Charge 2). The appellant laid the complainant on the bed, pulled her pants down and licked her vagina (Charge 3). He also took photos of the complainant’s vagina (Charge 4).
On the same day, the appellant also took a photo of the complainant’s bottom when she was on the toilet at a time when she was defecating (Charge 5).
Arrest and committal
The appellant gave a record of interview to police where he apologised to the complainant’s parents for sexual wrongdoing. However, it is clear that in doing so, he was referring to having answered the complainant’s questions on sexual matters rather than making admissions to illegal conduct with her.[19]
[19]Reasons [13].
The appellant pleaded not guilty and the matter proceeded to trial by way of straight hand-up brief.
Submissions of the appellant
The appellant accepted that the ground of manifest excess did not admit of much argument; he submitted that the sentence imposed was outside the range of sentences reasonably open. He referred to the limited number of cases in which this Court had considered an indecent assault against a child under 16 as the principal offence. He also referred to Sentencing Snapshot 113 where:
(a) the median sentence imposed for indecent act with a child under 16 between 2005-06 and 2009-10, was 2 years.
(b) the median total effective length of imprisonment where the principal offence was indecent act with a child under 16 was 3 years.
(c) in 93% of cases, the highest sentence imposed on an offender for this offence was under 4 years.
Counsel submitted that the sentence imposed upon the appellant was at the highest end of sentences imposed in recent years for the charge of indecent act with a child under 16.
The appellant submitted that the circumstances of this offending did not justify its characterisation by the sentencing judge as a particularly serious example of the offence. It was not pre-meditated, the period over which it occurred was relatively brief (no more than an hour) and there were no threats or violence associated with the conduct. Nor was the appellant an offender who (by his history or characteristics) ought to attract a sentence at the top of the range. He submitted that the sentence was out of step with current sentencing practice. Given the mitigating matters found by the sentencing judge, such as the appellant’s age and poor physical and mental health, his deep sense of shame, his good prospects of rehabilitation and the support of his wife, the sentence was outside the range reasonably open.
In oral argument, the appellant referred to several cases in which offenders had been sentenced for indecent acts against children under the age of 16.[20] He noted that, apart from the decision in Bavage v The Queen,[21] no other sentence had been for more than 3 years’ imprisonment. The present sentence was either double or 50% above the range of sentences for comparable offences.
[20]R v McDonald [2004] VSCA 196; HRJ v The Queen [2011] VSCA 217; Bavage v The Queen [2012] VSCA 149; JBM v The Queen [2013] VSCA 69; SLJ v The Queen [2013] VSCA 193; CMG v The Queen [2013] VSCA 243; Patrick v The Queen [2014] VSCA 89; O’Brien v The Queen [2014] VSCA 94.
[21][2012] VSCA 149.
What were meant to count as ‘comparable offences’ was not expressly identified. Conduct that has resulted in convictions for an indecent act with a child under 16 covers a broad range of human perversity. In the present case, the Court was provided with a list of cases said to be ‘comparable’, but left to discern as best it could what it was about them that made them ‘comparable’ with each other, and with the offending in question in the present case. After examining those cases, it seems that the common thread was that they involved physical conduct not dissimilar to that visited by the appellant upon the complainant. It is not at all clear that common feature makes the cases relevantly comparable for sentencing purposes. As was said in Hudson,[22] ‘”[l]ike” cases can only, at best, provide a general guide or impression as to the appropriate range of sentences’; their usefulness is relevant only in search for ‘unifying principles’.[23]
[22](2010) 30 VR 610.
[23]Ibid 617 [29]. The appellant provided a written outline of submissions to the sentencing judge. It made no reference to ‘comparable cases’. The Crown provided a ‘sentencing snapshot’ providing statistics from 2007-2008 to 2011-2012. The Crown pointed out that those statistics do not disclose whether the accused had pleaded guilty or not guilty. The only cases referred to by the appellant were R v Verdins (2007) 16 VR 269 (depression relevant to how he might serve his sentence) and Martin v The Queen [2013] VSCA 377 (whether age of victim is an aggravating factor).
The appellant referred to Russell v The Queen,[24] in which Kaye AJA (with whom Buchanan JA agreed) made the following observation as to the proper role of sentencing statistics and so-called comparable cases. He said:
[24](2011) 212 A Crim R 57.
At best, what might be described as “current sentencing practices” is but one of many factors which are relevant in the exercise of that discretion. However, the content of that phrase is somewhat elusive. It is trite, but nonetheless fundamental, that each case is different, and not just in matters of detail. The facts and circumstances relating to the offending in each case are quite unique. No two cases are alike, except in that they may, in a broad sense, each possess certain common characteristics. The assessment of the gravity of the offending in each case is, of necessity, different. The relevant factors relating to the prisoner — such as age, health, background, antecedents and character — are all necessarily different. The sentencing judge’s assessment of culpability, remorse and rehabilitation will vary with each particular case. So, too, will the sentencing judge’s assessment as to the extent to which a term of incarceration may operate harshly on a particular prisoner. In the same way, the sentencing judge’s assessment of the relative importance of specific deterrence, general deterrence and denunciation will vary for each case.[25]
[25]Ibid 69 [57].
The appellant also referred to GC v The Queen,[26] in which the Court (Buchanan, Harper and Tate JJA) said:
[26][2013] VSCA 139.
The limitations in using a small number of cases with some common characteristics to demonstrate an appropriate sentencing range are self-evident. While consistency in sentencing is important, the nature of the sentencing task permits some inconsistency. As Gleeson CJ said in Wong v R:
All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
Consistency in this context depends upon identification of the appropriate range rather than upon the application of single instances of cases said to be similar. The range is to be ascertained by the application of the relevant legal principles to the circumstances in which the offences were committed and the character and antecedents of the offender together with an examination of comparable cases and the application of the process of instinctive synthesis.[27]
[27]Ibid [39]–[40] (citation omitted).
Crown submissions
The Crown submitted that there were significant differences between the present case and those cases that the appellant had said were comparable. The Crown relied particularly upon the fact that in most of the cases the accused had pleaded guilty, and exhibited remorse. In the present case the appellant had been convicted by a jury, and plainly showed no remorse whatsoever.
The cases said to be comparable
In an appendix to these reasons, there is an analysis of the cases which the appellant submitted are ‘comparable’ to the present case.
As will become evident, the fact that each of those cases may have involved an act which was physically similar to the act forming the basis of Charge 3 does not make those cases relevantly ‘comparable’ as explained in Hudson.[28]
[28](2010) 30 VR 610.
There is a further consideration which must be taken into account. In some cases, a judge may have determined a separate sentence in respect of each count or charge before addressing questions of cumulation and totality.[29] In other cases, where there has been sentencing for multiple offences, the ‘moderate and cumulate’ approach has been followed.[30] Neither approach is mandated.[31] But, the possibility that one approach has been used rather than the other is a further reason for questioning whether two sentences for an indecent act with a child under 16 are truly comparable.
[29]DPP (Vic) v Grabovac [1998] 1 VR 664, 680 (Ormiston JA with whom Winneke P and Hedigan AJA agreed).
[30]R v Izzard (2003) 7 VR 480, 484–6 (Callaway JA with whom Winneke P and Vincent JA agreed).
[31]See the discussion in DHC v The Queen [2012] VSCA 52 (Weinberg JA with whom Maxwell P and Buchanan JA agreed).
Analysis
The offence of wilfully committing an indecent act with a child under 16 is without question a serious offence. And, the present case was a serious example of such offending conduct.
Counsel who appeared on the plea conceded that the conduct involved in the offending, involving as it did the licking of the complainant’s vagina, was a particularly serious example of this sort of offending. She acknowledged that ‘it was towards the higher end’. She conceded that an immediate custodial term was appropriate. However, she submitted that ‘any gaol term need not be lengthy in view of all the matters put in mitigation and that in particular the non-parole period need not be of undue length so as to enable [the appellant] to be supervised in the community on parole’.[32]
[32]Reasons [27].
On the hearing of the appeal (but not before the sentencing judge), the appellant relied on ‘current sentencing practices’. In McPherson v The Queen,[33] Maxwell P reviewed current sentencing practices of this Court with respect to sentences imposed for the charge of indecent act with a child under 16. One is immediately struck by the enormous differences between the types and periods of conduct, and in the background and circumstances of victims, that fall under this offence. In McPherson, the conduct in question took place over a period of 16 months and involved six individual victims: three of the victims were girls each of whom was aged eight, one of the boys was ten and the other boys were 13 to 14. But, in that case, the appellant pleaded guilty, accepted responsibility for his actions and showed remorse. As the Crown pointed out, in the present case, the appellant had pleaded not guilty. He had shown no remorse other than for what he defined as his wrongdoing: answering the questions of a child about sexual matters.
[33][2014] VSCA 59 (‘McPherson’).
Several aggravating factors were present. In taking into account the age disparity between the appellant and his victim and the gross breaches of trust involved, the sentencing judge was right to regard Charge 3 ‘as a particularly serious example of this type of offence’.[34] The age disparity was great; the complainant completely vulnerable. Her parents had left their small child in the care of a trusted friend; the breach of trust was particularly odious.
[34]Reasons [14].
It is also undeniably the case that the offending ‘must be justly punished in all of the circumstances and denounced’.[35] And, the sentencing judge was right to hold that strong weight must be given to general deterrence in a bid to deter others from behaving as the appellant had.[36]
[35]Reasons [16].
[36]Reasons [16] as corrected at [28].
Denunciation and general deterrence were significant sentencing considerations. In R v DP,[37] Vincent JA (with whom Kellam JA and Whelan AJA agreed) said:
[37](2007) 176 A Crim R 382.
Specific and general deterrence assume great significance as sentencing considerations and, putting it bluntly, those who exploit and abuse young children, must anticipate that the response of our society, which our courts represent, will be severe.[38]
[38]Ibid 393 [46]. See McPherson v The Queen [2014] VSCA 59, [50] (Maxwell P with whom Neave and Redlich JJA agreed). In the present case, the sentencing judge was right to regard specific deterrence as of lesser significance.
In noting the lack of remorse implied in the plea of not guilty, the judge was prepared to make ‘limited allowance for the fact that you have expressed regret for causing hurt to the victim’s family in the context of acknowledging that you spoke to the victim about matters which were inappropriate’.[39] She took into account the fact that the period of offending was relatively brief and that there was only one victim involved.
[39]Reasons [19].
The appellant’s submission that that ‘there were no threats or violence associated with the conduct’ must be rejected. Apart from anything else, the jury convicted the appellant of common assault in so far as, when she had refused his grossly lewd suggestion, he either dragged or pushed the complainant into the bedroom. As the Crown submitted, whilst not pre-meditated, the offending was certainly opportunistic and persistent.
The sentencing judge also took into account other mitigating factors such as the material that the appellant was otherwise of good character and of the shame that his situation had brought upon himself, his wife and his children. She took into account his poor physical and mental health and recognised that his time in jail would be harder on him than on others not in his situation. Notwithstanding his maintenance of his innocence despite the jury’s verdict, the sentencing judge was prepared to conclude that he had ‘fairly good prospects of rehabilitation’.[40]
[40]Reasons [25].
It is to be recalled that, on the hearing before this Court, the appellant contended that the sentence with respect to Charge 3 was manifestly excessive. That was the one charge that attracted particular comment by the sentencing judge in her reasons. As has already been indicated, the conduct of the appellant was a serious example of this type of offence. It deserved stern punishment and firm denunciation. It is true, as the appellant contended, that, Bavage v The Queen[41] to one side, the sentence was almost 50% higher than the sentences that had been considered by the Court as involving the very specific physical conduct which comprise that charge. However, the fact that the same specific physical conduct is present does not mean that the offences are relevantly comparable. Other judges may have imposed different sentences in respect of the third charge. That circumstance does not, of itself, justify this Court in interfering with the sentence imposed by the judge in this case. There was no error of principle in the reasons of the sentencing judge. The sentence was stern, but not unduly so.
[41][2012] VSCA 149.
I would dismiss the appeal.
APPENDIX
The cases said to be ‘comparable’
R v McDonald[42]
[42][2004] VSCA 196.
The appellant pleaded guilty to one count of aggravated burglary, one count of theft and two counts of committing an indecent act with a child under 16. In that case, the appellant had entered unlawfully a bungalow or games room at the rear of a house that was occupied by a family, with two young girls, then aged five and nine years. The Court treated the indecent acts as largely unpremeditated.
On appeal, the appellant said that the total effective sentence, the non-parole period and each of the individual sentences was manifestly excessive. The relevant offences, sentences and conduct were as follows:
Count 3 Indecent act 3 years The appellant entered the bedroom of the two girls. He awoke them, telling them that he was their ‘dad’, pulled down the pyjamas first of one victim then of the other, and proceeded to lick the genital area of each. Count 4 Indecent act 3 years As above.
In rejecting the ground of manifest excess, Chernov JA (with whom Winneke P and Vincent JA agreed) said:
The relevant question is whether the sentences imposed by his Honour, including the total effective sentence, are outside the range of sentences that were reasonably open to him, taking into account the seriousness of the offences and the appellant’s offending conduct and balanced against matters personal to him, including any other mitigating factors and having regard to the relevant sentencing principles. That the offences committed by the appellant were very serious is apparent from the maximum custodial sentences prescribed by Parliament in relation to them, to which reference has already been made. The appellant's offending conduct was of a most serious kind. The sexual offences against the young girls were particularly distressing and, not surprisingly, had a detrimental effect on them and, no doubt, on their parents. Similarly, the burglaries put the occupants of the houses that he burgled in great fear for their safety. Moreover, the offending conduct involved at least some degree of premeditation and was carried out on two nights across a relatively lengthy period. On those nights, the appellant burgled four separate houses, in the middle of the night, when it must have been obvious to him that there were occupants who were asleep at the time and were likely to be frightened, if not terrified, upon discovering an intruder. As such, I consider that it is an over-simplification to put forward as a mitigatory factor, as the appellant’s counsel did, that the offending took place on only two nights. It was also said by counsel that his Honour's finding that the offending conduct was premeditated was unsupported by the evidence, but I consider that it was open to his Honour so to conclude that the appellant planned to enter the subject premises and to burgle them. The appellant’s sexually deviant behaviour towards the young girls may not have been premeditated in the relevant sense, but it was embarked upon against young children, one of whom was of a similar age to his son, and it is difficult to accept that he did not realise, notwithstanding his impairment by substance abuse, that his assault on them would terrify them and his conduct was likely to have a significant detrimental effect on them into the future. I also note that the appellant's criminal history is substantial and the current offending breached the suspended sentence that was imposed on him on 2 February 2001, although the matter was not drawn to his Honour’s attention during the hearing of the plea in mitigation. I consider that his offending conduct and criminal history demonstrate a wanton disregard on his part for the law.[43]
[43]Ibid [13].
Chernov JA referred to several mitigating factors which operated in the appellant’s favour including his plea of guilty and demonstrated remorse.[44] Nevertheless, he dismissed the appeal against sentence. He said:
The principles of general deterrence and denunciation of the appellant's conduct were of particular importance to the sentencing disposition. I also consider that special deterrence and just punishment were not irrelevant principles to apply in the sentencing process. Whether a sentence is outside the relevant range does not admit of much argument. [Counsel] said everything that could be said in favour of the appellant’s grounds of appeal, but I consider that, in light of the matters to which I have referred, neither the individual sentences imposed, the aggregate sentence for each period of offending nor the total effective sentence are manifestly excessive.[45]
IRJ v The Queen[46]
[44]Ibid [14].
[45]Ibid [15].
[46][2011] VSCA 376.
The appellant had pleaded guilty to several charges, including seven charges of an indecent act with or in the presence of a child under 16. The victim was eight years old. On the indecent act offences, he was sentenced to between two years and three years’ imprisonment. He contended, inter alia, that the individual sentences were excessive. The relevant offences, sentences and conduct were as follows:
Charge 1 Indecent act 2 years 6 months The appellant showed pictures to the victim of her mother performing oral sex on him. Charge 2 Indecent act 2 years The appellant showed various items of pornography to the victim. Charge 5 Indecent act 3 years Two images were found on the appellant’s computer of the victim’s tongue touching the appellant’s penis. Charge 6 Indecent act 3 years The victim used her hands to masturbate the appellant until he ejaculated. Charge 7 Indecent act 3 years The appellant rubbed his penis against the victim’s vagina, which she described as being uncomfortable. Charge 8 Indecent act 3 years On two occasions the victim was directed to insert her finger into the appellant’s urethra. Charge 11 Indecent act 3 years The appellant directed the victim to open her legs, and pushed her vagina open with his fingers.
In that case, the appellant was found to have deliberately groomed the complainant and to have planned the offending. There was no challenge to the individual sentences.[47]
HRJ v The Queen[48]
[47]Ibid [42].
[48][2011] VSCA 217.
A jury convicted the applicant of two counts of committing an indecent act with a child under 16. The victim, who was the next door neighbour of the applicant, was a girl aged three or four years when the offences occurred between 1994 and 1996. The two offences were committed on the same occasion. The relevant offences, sentences and conduct were as follows:
Charge 4 Indecent act 6 months The appellant placed the victim on a bed and rubbed her inner thighs. Charge 5 Indecent act 3 years Whilst she was on the bed, her pants were taken off and her legs were forced open and the applicant thereupon licked her vagina while he was kneeling on the floor.
In dismissing the appeal against sentence on the grounds of manifest excess, Hansen JA (with whom Whelan and Ross AJJA agreed) said:
The judge was confronted with a difficult sentencing task. On the one hand, the offending was very serious. In this regard, the judge referred to the age differential between the parties and the breach of trust. As he said, count 5 was particularly serious as it involved an adult licking the vagina of a three to four year old child. Plainly, denunciation and general deterrence loomed large as sentencing factors. As against this, there were many mitigating factors, including the applicant’s age and ill health at the time of sentence, the delay, and the fact that he was being sentenced for only two offences committed on the same occasion and he had not offended since. In this regard, I interpolate that there is no substance in ground 3, for the judge’s reference to uncharged acts and other counts was only made in the context of the victim impact statement’s reference to them and in order to give context to the totality of the allegations. As his Honour was at pains to point out, he sentenced the applicant only for the two counts he was convicted of. Further, there is no substance in ground 2 as it cannot be said that the judge overlooked or undervalued any relevant matter of mitigation. Indeed, the sentencing remarks bespeak an awareness of, and sensitivity to, the difficulty of the task and the need to tailor a sentence that would adequately punish the applicant while also reflecting the importance of social rehabilitation as discussed in DPP v DJK. Ultimately, the judge reconciled these competing objectives by making a modest order for cumulation and fixing a non-parole period of less than half the total effective sentence. In my view, that disposition was entirely appropriate in the circumstances.[49]
Bavage v The Queen[50]
[49]Ibid [33] (citations omitted).
[50][2012] VSCA 149.
The applicant had been convicted by jury of a series of sexual assaults on five female victims. The offences occurred over a period of almost 30 years, ending in January 2007. His victims were aged between 7 and 17 at the time each of them was assaulted. With respect to one complainant, the offences occurred in January 2007 when the applicant was 45 and the victim 7 years old. The relevant offence, sentence and conduct was as follows:
Count 2 Indecent act 7 years The victim was sleeping in the annexe of the caravan in which her family was staying. The victim woke at about 5:30am. The applicant knelt at the foot of her bed, licking her on the vagina.
The applicant was sentenced to seven years’ imprisonment in respect of an indecent act with a child under 16. The Court (Neave and Bongiorno JJA and Bell AJA) said:
The Crown did not concede manifest excess in respect of either of the sentences imposed for the offences charged in this presentment. Although the sentence of seven years’ imprisonment with respect to the count of committing an indecent act with a child under the age of 16 is the highest sentence imposed for this offence in the past five years,[51] it could not be said, in the circumstances, to be manifestly excessive; nor could the sentence of three years’ imprisonment with respect to the aggravated burglary. The applicant should be refused leave to appeal with respect to these sentences. Thus, the total effective sentence of eight years’ imprisonment imposed by the trial judge should stand.[52]
JBM v The Queen[53]
[51]Sentencing Advisory Council, ‘Indecent Act with a Child under 16 ― Sentencing Trends in the Higher Courts of Victoria ― 2005–06 to 2009–10’ (Sentencing Snapshot No 113, June 2011).
[52][2012] VSCA 149, [23].
[53][2013] VSCA 69.
The appellant pleaded guilty to two charges involving sexual offending against his niece who was aged only three at the relevant time. The relevant offence, sentence and conduct was as follows:
Charge 2 Indecent act 3 years Charge 2 concerned the appellant having licked the complainant’s vagina while she was lying on his bed. That charge also took into account two further occasions of like conduct.
The appellant pleaded guilty to these offences at the earliest practical opportunity. Weinberg JA (with whom Priest JA agreed) said:
Notwithstanding the stringent conditions that must be met before this Court will conclude that a sentence was manifestly excessive, I have concluded that, in the somewhat unusual circumstances of this case, that ground is made out.
The sentencing judge correctly characterised the appellant’s offending as ‘appalling’. His conduct involved a gross breach of trust, perpetrated as it was against a child who was only three years of age. General deterrence was obviously an important sentencing factor. So too was specific deterrence, for the reasons previously noted.
That said, there were also some powerful mitigating factors present. The first such factor was the appellant’s plea of guilty, which the trial judge accepted demonstrated genuine remorse. That plea also had significant utilitarian value. In addition, and perhaps more importantly, there was the fact that this prosecution could not have proceeded without the appellant’s cooperation with the police, and the full admissions that he made.[54]
…
Further, public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed. Offenders should be encouraged, so far as practicable, to admit their crimes and, in so doing, ensure that they can be successfully prosecuted. That policy must surely be of even greater importance in cases involving offending against very young children who would not be capable of giving evidence in court.
In my view, and notwithstanding the gravity of the appellant’s offending, both the total effective sentence and the non-parole period reveal that inadequate weight must have been given to the appellant’s level of cooperation, and the importance of his admissions. The authorities make it clear that he was entitled to a ‘demonstrable discount’, which, in my opinion, is not adequately reflected in the sentence imposed. That sentence might have been within range, and appropriate, had there simply been a plea of guilty, without the additional mitigating factors that were present.
In the circumstances it is unnecessary to say anything very much about the appellant’s point regarding current sentencing practices. I have, however, considered what the appellant said in relation to this matter. The table of cases in CPD upon which he primarily relied is of some utility. However, there is a particular difficulty in comparing the appellant’s sentence with those imposed upon the offenders in that table. In very few of those cases did the offender qualify for a Doran discount. That makes the quest for commonality somewhat futile.[55]
[54]Ibid [39]-[41] (citations omitted).
[55]Ibid [48]-[50] (citations omitted).
In the event, Weinberg JA said the appeal should be allowed and that the appellant be resentenced as follows:
Charge 2 Indecent act 2 years
O'Brien (a pseudonym) v The Queen[56]
[56][2014] VSCA 94 (Nettle and Priest JJA).
Following a trial in the County Court, the applicant was convicted of one charge of sexual penetration of a child under the age of 16 years and three charges of indecent act with a child under the age of 16 years and was sentenced therefor to a total effective sentence of four years’ imprisonment with a non-parole period of two years. His appeal against conviction was dismissed. The relevant offences, sentences and conduct were as follows:
Charge 1 Indecent act 18 months The complainant was 12 years old. She was a friend of a daughter of the applicant and was staying overnight at his house with her friend on the latter’s birthday. The applicant took hold of the complainant’s hand and placed it on his exposed penis and moved it up and down. Charge 3 Indecent act 20 months After the above incident, the applicant bent down and licked the complainant’s vagina. Charge 4 Indecent act 6 months After the above incident, the applicant moved his hand under the complainant’s t-shirt and squeezed her breasts.
In the event, the Court accepted that the sentencing judge had failed to give proper regard to the delay of 16 months between the matter being reported to police and charges being laid. The sentences were reduced as follows:
Charge 1 Indecent act 18 months Charge 3 Indecent act 6 months Charge 4 Indecent act 6 months
Patrick v The Queen[57]
[57][2014] VSCA 89.
This involved an appeal against conviction for indecent assault under s 44(1) of the Crimes Act 1958, not indecent act under s 47(1).
SLJ v The Queen[58]
[58][2013] VSCA 193.
A jury in the County Court convicted the applicant of several offences including seven charges of an indecent act with or in the presence of a child under 16. The applicant appealed only against his convictions. He did not appeal against sentences.[59]
CMG v The Queen[60]
[59]The sentences imposed in the County Court were as follows:
| Charge 1 | Indecent act | 1 year | The applicant rubbed the complainant’s vagina on the outside of her clothing. |
| Charge 2 | Indecent act | 3 years | The applicant pulled down the complainant’s pants and licked her vagina. |
| Charge 4 | Indecent act | 2 years | The complainant masturbated the applicant and he ejaculated on her hand. |
| Charge 5 | Indecent act | 6 months | The applicant showed the complainant a picture on his mobile phone of his penis. |
| Charge 6 | Indecent act | 9 months | The applicant showed the complainant a picture on his mobile phone of her mother with a dildo in the background. |
| Charge 7 | Indecent act | 9 months | The applicant showed the complainant a pornographic image on his computer of a woman lying on a bed or table being penetrated orally and vaginally by several men. |
| Charge 8 | Indecent act | 6 months | The applicant showed the complainant his penis. |
[60][2013] VSCA 243.
The appellant was convicted following a trial in the County Court on three charges of committing an indecent act with a child under 16 and four charges of sexual penetration of a child under 10. The appeal against conviction was dismissed but, on account of an error in sentencing, the Crown conceded that there must be a reconsideration of the appellant’s sentences.[61]
SD v The Queen[62]
[61]Although the report indicates the new sentences (at [143]), it is not clear what particular facts and circumstances they refer to.
[62](2013) 229 A Crim R 580 (Ashley, Redlich and Priest JJA).
The appellant pleaded guilty in the County Court to two charges of indecent act with a child under 16 years. The victim, who was the appellant’s niece, was aged 11, nearly 12. The relevant offences, sentences and conduct were as follows:
Charge 1 Indecent act 2 years The appellant put his hand inside the victim’s shorts and then her underwear. The victim said: ’he started playing around’ with her vagina, ‘[all] over it ... everywhere on my vagina’. Charge 2 Indecent act 2 years The appellant was attempting to put his hand into the victim’s shorts, but the shorts were too tight so he could not get his hand into them. His hand was touching the victim’s right leg in the attempt.
The appellant contended that there had been an error in sentencing and that the sentences were manifestly excessive. The Court held that there had been an error in sentencing, and proceeded to resentence. With respect to the ground of manifest excess, it said:
Although not strictly necessary to address ground 4, since, specific error having been found, the sentencing discretion is reopened, we think we should nonetheless express our views on the question whether the sentences passed were manifestly excessive.
It has been said often enough that whether a sentence is or is not manifestly excessive does not admit of a deal of argument. A sentencing judge instinctively synthesises all relevant factors and arrives at a sentence which he or she thinks is appropriate. An appellate court approaches the task of assessing whether a sentence is manifestly, as opposed to merely arguably, excessive in the same way. The members of the appellate court synthesise all relevant factors. No matter that the appellate court regards the sentence as stern, or that the members of the court might themselves not have passed the same sentence, appellate intervention is not warranted unless the sentence is outside the range of those open in the sound exercise of discretion.
In this case we have no hesitation in concluding that the sentence on the second charge, which involved the touching of the complainant’s leg, was manifestly excessive in all the circumstances. We do not ignore the great differences in age, the breach of trust, the fact that this was the second incident involving the appellant and complainant, or any of the other circumstances that are relevant. But the fact remains that the indecent act did not involve, as did the first charge, the actual touching of the victim’s genitals. Thus a sentence of two years’ imprisonment on charge 2 is to our minds manifestly excessive.
The sentence passed on charge 1 was stern. If it had been the only sentence imposed, we might not have been prepared to conclude that it was outside the range of those open in the sound exercise of the sentencing discretion. But we are persuaded, considering all the circumstances of this case, that the sentence on charge 1 should be characterised as manifestly excessive. In our opinion, therefore, quite apart from the distinct errors under grounds 2 and 3 which reopen the sentencing discretion, appellate intervention is also warranted by virtue of the manifestly excessive sentence imposed on each of the charges.[63]
[63](2013) 229 A Crim R 580, 594–5 [55]–[58] (Citations included, but renumbered).
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