Talbot (a Pseudonym) v The Queen
[2016] VSCA 218
•14 September 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0109
| GABE TALBOT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | WEINBERG and OSBORN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 September 2016 |
| DATE OF JUDGMENT: | 14 September 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 218 |
| JUDGMENT APPEALED FROM: | [2016] VCC 995 (Judge Cannon) |
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CRIMINAL LAW – Appeal – Sentence – Persistent sexual abuse of child under 16 (2 charges), incest (2 charges) – Two victims – Victims step-daughters of applicant – Victims aged between 11 and 18 – Plea of guilty – Offending caused a pregnancy for one victim, which was terminated – Impact on victims – Sentenced to total effective sentence of 15 years’ imprisonment with a non-parole period of 10 years – Whether manifestly excessive – Whether offending against one victim objectively less serious, requiring a lesser sentence – All sentences within range – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA:
OSBORN JA:
Following pleas of guilty and a plea hearing on 26 April 2016, the applicant was convicted and sentenced on 9 May 2016 in the County Court by her Honour Judge Cannon as follows:
Charge on
Indictment
Offence
Maximum
Sentence
Cumulation
1.
Persistent sexual abuse of child under 16 years
[s 47A(1) of the Crimes Act 1958]
25 years
[s 47A(4) of the of the Crimes Act 1958]
9 years
Base
2.
Incest — by step‑parent
[s 44(2) of the Crimes Act 1958]
25 years
[s 44(2) of the of the Crimes Act 1958]
3 years
1 year
3.
Persistent sexual abuse of child under 16 years
[s 47A(1) of the Crimes Act 1958]
25 years
[s 47A(4) of the of the Crimes Act 1958]
9 years
4 years
4.
Incest — by step‑parent
[s 44(2) of the Crimes Act 1958]
25 years
[s 44(2) of the of the Crimes Act 1958]
3 years
1 year
TotalEffectiveSentence:
15 years’ imprisonment
Non-ParolePeriod:
10 years
Pre-sentence detention declared:
437 days
Section6AAAdeclaration:
The learned sentencing judge stated that the sentence she would have imposed if the applicant had been convicted of this offence after a trial would have been 19 years’ imprisonment with a non-parole period of 15 years.
Other relevant orders:
· Pursuant to s 6F of the Sentencing Act 1991, the offender is to be sentenced as a serious sexual offender after charge two which is to be noted in the records.
· Pursuant to s 464ZF of the Crimes Act 1958 the offender is to undergo a forensic procedure.
· Pursuant to s 34 of the Sex Offenders Registration Act 2004, the offender is to report for life.
The applicant now seeks leave to appeal on the ground that the sentence imposed, both in its constituent parts and in total, is manifestly excessive.
The circumstances of the offending
The offending comprised two sequential and overlapping sets of offences by a step-father against his two step-daughters.
The applicant was born on 30 June 1980 and, at the time of the offending, was between 29 and 35 years of age.
The first victim, LF, was born on 30 June 1997 and was approximately 11 or 12 years old when the offending commenced. She made formal complaint when she was 17 years of age.
The second victim, BF, was born on 4 April 1996 and was approximately 12 years old when the offending commenced. She made formal complaint when she was 18 years of age.
The applicant had commenced living in a de facto relationship with the victim’s mother, KL, in 2004. He had no children of his own at that time and was working as a labourer in a textile factory. He spent time with both the victims and initially treated them as though they were his own daughters.
In April 2008, the applicant and KL had a child together (a son) but the relationship eventually broke down and they spent periods of time living apart.
Charge 1, persistent sexual abuse of a child under 16 years was constituted by the applicant taking part on a series of occasions in the following acts with LF in years prior to her 16th birthday:
(a) wilfully committing an indecent act with the victim by rubbing against her from behind;
(b) wilfully committing an indecent act with the victim by putting his hand down her pants from behind; and
(c) sexual penetration of the victim by introducing his penis into her vagina.
Charge 2 was constituted by an act of incest charged as a representative count involving LF, occurring after her 16th birthday between 30 June 2013 and 25 February 2015.
Charge 3, persistent sexual abuse of a child under 16 years was constituted by the applicant taking part on a series of occasions in the following acts with BF prior to her 16th birthday:
(d) sexual penetration of the victim by introducing his penis into her vagina;
(e) wilfully committing an indecent act with the victim by touching her groin area while she was menstruating;
(f) sexual penetration of the victim by introduction of his penis into the victim’s mouth; and
(g) sexual penetration of the victim by introducing his penis into the victim’s anus.
Charge 4 was constituted by an act of incest involving BF occurring after her 16th birthday during the period between 4 April 2012 and 4 April 2014. This was not brought as a representative charge.
The sentencing judge summarised the evidence relating to charge 1 involving LF as follows:
On an occasion between 1 January 2009 and 18 August 2011, over the Labour Day weekend, while you were living at a house in suburban Melbourne, arrangements were made so that each of the victims could have a girls’ night out with their mother. While one of the girls went out for dinner, then spent the night with their mother at a rented apartment, the other child would remain in your care.
[LF] was first to have a girls’ night with [KL]. The next night, she remained with you whilst [BF] had her girls’ night.
That night, it was hot, and you and [LF], the first victim, were sleeping on the same mattress that had been placed downstairs due to the heat.
The first victim awoke during the night and felt something behind her. It was you. To quote from the opening, you were, ‘humping her from behind’. The first victim froze as she did not know what was happening. [LF] then heard you lick your fingers. You then put your hands down the back of her pants towards her nether regions. This made the first victim get off the mattress. She tried to tell you to stop, but she thought you were asleep. At this time, the first victim thought that you might have thought that she was [KL].
The first victim waited until the next morning, when her mother returned to the house and told her what had happened. When confronted, you said that you did not even know that you were doing it and you were crying. There was yelling and crying but ultimately ‘everything cooled off’.
On an occasion between 1 January 2009 and 16 April 2011, while you were living at the same address, the first victim was in bed when you started, (as recorded in the opening) ‘acting kind of weird’ wanting the first victim to ‘play with herself’. On another occasion between 1 January 2009 and 16 April 2011, when you and the family were about to move house, the first victim was upset because she felt that her biological father had abandoned her. While she was speaking to you about her sadness, you comforted her, telling her that you and her mother loved her. This was the lead-up to you putting your penis into the first victim’s vagina. The first victim said that, ‘it felt like forever,’ but it was probably only ten minutes. It was this occasion upon which she lost her virginity.
This was the first episode of penile vaginal penetration, for the purposes of Charge 1.
The circumstances referred to before this, place this conduct in its correct context. In sentencing you, I have also had regard to the fact that you sexually penetrated this complainant after having assured her mother that the previous incident on the Labour Day weekend was unintentional. On any view of things, if you needed to be, you were placed on clear notice as to the intolerable nature of any sexual dealings with the first victim, or her sister, for that matter, yet you went on to offend against each of them. I have also had regard to the fact that when you sexually penetrated the first victim on this first occasion, she was especially vulnerable, having sought comfort from you in respect of her feelings of abandonment from her father.
In 2011, you and [KL] moved to a house in [regional Victoria] with [LF], [BF] and [your son]. While living there, you sexually abused [LF] on a regular basis. The first victim’s bedroom was at the rear of the premises. One day, you and the first victim went to her bedroom. The first victim was on her hands and knees on the bed, while you sexually penetrated her from behind. During this episode, her mother, [KL], walked into the room and turned on the light. On seeing what was happening, [KL] turned off the light and walked out. You then withdrew your penis from the first victim’s vagina and left the room. [KL] asked the first victim whether it was her choice and threatened to call the police. You also spoke with the first victim, telling her that she had to tell [KL] that it was her choice, or she would get into trouble.
The first victim ultimately told [KL] that she had just wanted to know what sex was. [KL] told the first victim that she could not be like that, and the first victim agreed. In sentencing you, I have had regard to the fact that you exacted the first victim’s co-operation to protect you by the false threat that she would be the one who would get into trouble if she did not. In passing, I make the observation that unfortunately, rather than protecting her daughter without question, [KL] placed an extra burden on [LF]’s shoulders. This is not something that I factor in when sentencing you but I do factor in that this was an added burden placed on the child which you exploited by pressuring her to lie, in essence, by getting her to say that the sex was her idea. The entire scenario to which the first victim was subjected was utterly abhorrent and despicable.
By way of uncharged acts and contextual information, I was told that the sexual abuse continued. On one occasion, you became so angry and frustrated with the first victim that you dragged her to her bedroom and sexually abused her. While you were abusing the first victim on her bed, two wooden slats of the bed broke. [KL] queried how this had happened but [LF] told her that she had been jumping on her bed. On other occasions, at the same house in [regional Victoria], the first victim and you would go into the master bedroom at the house, and you would place a blanket over both of you in case someone walked in. You would then either put your penis into the first victim’s vagina, which is a particular of Charge 1, or you would place your penis in her mouth, which was not particularised.
During 2011, the relationship between you and [KL] began to break down and ultimately you decided to live apart. [KL] remained at the house with her children whilst you moved into a unit in [suburban Melbourne]. When you separated, [LF] spent time between the two residences. During this time, [KL] said that [LF] was unmanageable, suicidal and exhibiting sexualised behaviour that caused her concern.
During this time, you were employed at a company that made pet food in [a suburb of Melbourne]. After you separated, on occasions, you would sleep in the office. During this period, you would take the first victim to the office. There, you would sexually abuse her, having sexual intercourse with her on a blow-up mattress in the office. This was in the laundry area of the site and also took place on the production bench.
The first victim fought with [KL] and [KL] eventually kicked her out of the house. When this happened, [KL] was worried about where her daughter would live and you told her that [LF] could live with you. [KL] apparently thought at this time that you were trying to help her.
Whilst [LF] lived with you, you continued to sexually abuse her. You would penetrate the first victim’s vagina, and anus, which is not particularised for the purposes of the charge, but you would penetrate her vagina and anus with your penis and you did not use a condom.
I was told by way of uncharged or context information, that while [LF] lived [in suburban Melbourne], you introduced her to smoking cannabis from a bong that you had made. During this time, you supplied her with alcohol. On one occasion, you gave her ecstasy and on another, you put cocaine in her drink. During this time, you also bought the first victim lingerie and you bought a vibrator which you used to penetrate the first victim. You also made the first victim use the vibrator on herself. During this time, the first victim became pregnant and you organised the termination of the pregnancy. You and [LF] told medical staff that she had become pregnant to a boy called ‘James’ at the beach.
Following this termination, the first victim started taking the pill to make sure that she did not get pregnant again. You were evicted from the unit in [suburban Melbourne] and came back with the first victim into the house [in regional Victoria].
When you moved, you took the vibrator with you and the first victim hid it under her pillow. The vibrator was thrown out when the first victim became concerned that it was ‘too suss’.
In sentencing you in respect to Charge 1, I am mindful of the three particular acts which are nominated by the prosecution in respect of the offending and the incidence of these and I am also mindful of the fact that some of the information which was opened, was only relied on as context or background information.[2]
[2]DPP v Talbot [2016] VCC 995 [10]–[28].
Turning to charge 2, the trial judge summarised the relevant evidence as follows:
I now come to Charge 2. Charge 2 is a representative charge which means that you are only to be sentenced in respect of the one occasion relied on by the prosecution, rather than the entire conduct described. However, in sentencing you, I take into account the impact on the first victim on the entirety of the conduct represented and sentence you on the basis that the said occasion is not an isolated incident, lest it be said otherwise.
However, I cannot and I have not inflated the sentence in relation to this charge to cater for all of the represented occasions of incest.
By way of background, I was told that you, [KL] and the three children, moved on to [regional Victoria]. While you were in [regional Victoria], you met a family, the … . At one stage, [that family] went away and you house-sat for them over the New Year period.
On New Year’s Eve, you took the first victim into one of the bedrooms and penetrated her vagina with your penis. [KL] walked into the bedroom while you were on top of the first victim. When you saw [KL], you walked out. The first victim then barricaded the door of the bedroom using an air-conditioning unit and tried to get to sleep. The prosecution nominated this occasion as the occasion for which I sentence you for the purposes of Charge 2.
The following day, [KL] and the children returned to the house in [regional Victoria] and you stayed at [the family’s] house. [KL] started asking the first victim why she would do that, but understandably, the first victim thought that it was more of an accusation than a question and did not want to listen. [LF] said that you had intercourse with her, ‘sort of 80 times,’ as she thought it was over 50 times. I was told that this estimate pertained to the entire period that you sexually abused her — that is, the period encompassed by Charges 1 and 2. So I am unable to discern how many occasions precisely related to Charge 1, and how many were represented by Charge 2. However, on any view of things, it is clear, that you sexually penetrated the first victim on a number of occasions, for the purposes of each of these charges.
Coming back to Charge 2, the last occasion that you sexually abused the first victim, was after New Year at your brother’s workplace and where you also worked at the relevant time. You asked the first victim and your son … to come to your workplace. By this time, the first victim was self-harming and there were concerns about leaving her alone or with [your son]. This day, you left [your son] watching YouTube or something on the computer and took the first victim to the breakfast room of the production area. You were attempting to have sex with her on a bench, but [your son] kept coming into the room interrupting you. Each time he did, you would you stop and take [your son] back out of the room. Eventually you sexually penetrated the first victim from behind so that you could see [your son] coming into the room. This was the last time that you had sexual intercourse with the first victim.
By way of other information, which was relevant to the offending against the first victim, I was told that during the period of offending when the first victim told you that she could not do this anymore, you would pull her down and choke her and push her with your feet. You would also threaten the first victim, that she was going back to her dad’s if she did not do what you told her to do in respect of sexual acts. The Crown relied on that conduct that I have just described as aggravating your offending and I sentence you on this basis.
I was told that you were also aggressive to [KL] and stood over her but you were not physically violent towards her. This is a piece of background information. It may help to explain [KL’s] failure to protect her children from you — although, it does seem that at one stage, she was at least able to speak about going to the police, and at a later stage, she was able to live separately from you, and unfortunately was happy for you to supervise her daughters.
On Sunday, 8 February 2015, you took [LF] for a drive in the car. During the drive, you encouraged her to commit suicide, and you were looking for a tree that was big enough for her to hang herself from. When you returned from the drive, you would not allow [LF] to enter the house. [KL] then rang the [local hospital] but [LF] would not speak with the hospital. [KL] later took her to the hospital where she was placed in the psychiatric unit.
On 17 February 2015, [LF] was readmitted to [that hospital, as the anti-depressants she was prescribed did not appear to be working. While she was in hospital, her grandparents visited her and during their visits, she disclosed the physical and sexual abuse she had suffered at your hands.
On 25 February 2015, the police were contacted and attended the hospital. At this time, [LF] would not make a statement to police but she did provide details of the abuse.[3]
[3]Ibid [29]–[39].
When the applicant was interviewed by police in relation to LF’s statement, he sought to minimise his responsibility for the offending and told a series of lies, the principal one being that someone else was responsible for LF’s pregnancy. The sentencing judge commented that she regarded the record of interview as reflecting very little in the way of remorse, insight or moral fibre as at that time.
Insofar as BF is concerned, the sentencing judge summarised the evidence relating to the circumstances of charge 3 as follows:
By way of background and context, I was told that you moved to [suburban Melbourne] with the family, including the first victim, and that the second victim, [BF], had a bunk bed with a ladder across the front of it in her bedroom. You started coming into this bedroom and getting into her bed to cuddle her when no one else was in the room. This made her feel uncomfortable.
You later began touching the second victim’s breast and bottom over her pyjamas. A while later, you started to touch her breasts and bottom under her clothing.
While [LF] was on the girls’ night out with [KL], [BF] stayed in your care. That night, you had [BF] dress in one of [KL’s] silk lacy lingerie tops. [BF] kept trying to cover herself up. You and she slept on a mattress on the floor in the lounge room. On an occasion between 4 April 2009 and 3 April 2010, when [BF] was aged about 13 years of age, you came into her bedroom. You pulled down her pants and told her to relax. You were touching the second victim and then penetrated her vagina with your penis. This happened over about half an hour and the second victim was scared. [BF] said that you penetrated her vagina approximately 100 times in her bedroom and about 20 times in the lounge room of that house.
On mornings after these molestations, you would act as if ‘everything was okay and that nothing had happened and that nothing was wrong’.
When the second victim was menstruating, you would touch her in her groin area and feel that she was wearing a sanitary pad. This made her feel uncomfortable, embarrassed and disappointed that you were still trying to sexually abuse her while she was in her cycle.
On an occasion between 4 April 2010 and 3 April 2011, when the second victim was about 14 years old, she had a discussion with you about who your real mother was. After this conversation, the second victim was feeling sorry for her, and you went outside so you could have a smoke. While outside, you got the second victim to put your penis into her mouth and perform oral sex.
You would also penetrate the second victim’s vagina with your tongue. You had penile vaginal sexual intercourse with the second victim on a weekly basis. You also tried to have anal intercourse with her but it would cause her pain so you would stop. You often tried to get the second victim to drink alcohol but she was not very fond of drinking.
At the [suburban Melbourne] address, there were occasions that the second victim thought [KL] would catch you in the bedroom. On one occasion, [KL] did come into the second victim’s bedroom but you pretended to be asleep.
By way of uncharged acts or context evidence, I was told that when the second victim was 15 years old, the family went [interstate] for a holiday. During this time, the second victim became more of a willing participant in the sexual activity. This is in no way a reflection upon her. Obviously, you had conditioned her to this point. There was an occasion at the [suburban Melbourne] residence, that you were in the kitchen with the second victim and a song … started to play. The second victim told you to take the song’s advice, and you touched and kissed her.
On an occasion between 16 August 2011 and 31 January 2012, after you had moved to [another address in suburban Melbourne], the second victim was visiting you at your unit. After watching a DVD, you had sexual intercourse with her. The second victim told you, on this occasion, that she did not want to have sex anymore and thought that you had taken it quite well.
The sexual abuse then stopped for a couple of months, but it later started up again.[4]
[4]Ibid [51]–[61].
In relation to charge 4, which comprised the charge of incest relating to BF, the sentencing judge summarised the facts as follows:
One night, you were sexually penetrating the second victim and told her that you felt unsafe, apparently referring to the fact that you were having unprotected sex. The second victim was so worried about becoming pregnant and asked you to get her a pregnancy test. You obliged and left it in her room. When the second victim used the pregnancy test, it did not work. When she told you that the test had not worked, you became angry. You also argued with the second victim, that if she was pregnant, it must have been someone else’s baby and not yours. The second victim had never had sex with anyone else but you. The second victim took a second test which showed a negative result. She felt upset that you were blaming her for being potentially pregnant.
On Monday, 16 March 2015, [BF] told a counsellor from [a] Centre Against Sexual Abuse, that her stepfather had been abusing her since she was 12 years old. At this time, she was uncertain whether she wanted to report the abuse to the police.
On 27 April 2015, a police officer arranged for [BF] to attend at [a] SOCIT Unit and make a statement.[5]
[5]Ibid [64]–[66].
When interviewed in May 2015, the applicant again lied about the sexual conduct he had been involved in with BF.
The judge’s characterisation of the offending
The sentencing judge identified a series of aggravating features involved in the offending:
… firstly, you grossly breached the trust that each of your stepdaughters had placed in you; you are a person that they were entitled to look up to and to be protected by; you had taken on such a role when you commenced a relationship with their mother; instead, you defiled each of the victims, taking their childhood away from them; taking from them their entitlement to have a normal and happy development from childhood into adolescence, to engage in appropriate relationships with age-appropriate people and to flourish as young women. You took away their virginity.
Also, you had unprotected penile, vaginal sexual intercourse with each of the victims over an extensive period, exposing them to the risk of pregnancy and sexually transmitted diseases. Moreover, in relation to [LF], the risk of pregnancy was actually realised and you then subjected her to undergoing a termination. I have also had regard to the way in which you handled this very sad episode, again, ensuring that you were protected by having the complainant lie about the identity of the father, as if she were some wayward adolescent who got herself into trouble. Also, I have factored in that the first victim was only 11 or 12 years old when the sexual abuse began, and the second victim was about 12 years of age.
The next matter I have taken into account as an aggravating factor is the significant age difference between you and each of the girls, which was in the order of 17 and 18 years.
Lastly, I have taken into account the regularity and duration of the persistent sexual abuse in relation of each of the victims.[6]
[6]Ibid [68]–[71].
Each of these findings was entirely justified.
In turn, the sentencing judge characterised the objective gravity of the offending as most serious and deserving of strong punishment and denunciation.
The sentencing judge noted the quality of indiscriminate, wanton conduct towards the two victims at largely the same time and the manner in which the applicant manipulated the victims, taking advantage of their mother’s weak stance in protecting them. In all of the circumstances, the sentencing judge found that the applicant’s moral culpability was very high. Once again, there can be no dispute that these findings were open to the sentencing judge.
It followed that strong weight was required to be given to general deterrence in order to deter others from behaving as the applicant had.
The sentencing judge then turned to the impact that the offending had had on the victims. As might be inferred from the nature of the offending itself, the adverse impact on both victims has been significant. LF has suffered serious psychiatric consequences involving post-traumatic stress disorder, anxiety and depression, which have ruled her life and has had intensive psychological treatment and medication to avoid self-harming, which she has turned to in the past. The offending has resulted in her family turning against her and the destruction of the relationship she had with her mother. It has made it difficult for her to form positive relationships with others. Her development out of childhood was materially adversely affected. Because of her ongoing problems, she had to move schools every year from Year 8 to Year 12. Her mental health issues have affected her employability and her capacity to pursue her talents as a professional basketball player. At the time that she made her victim impact statement, she was living at a residential rehabilitation facility for the mentally ill and attempting to complete her VCE. Her future was uncertain. She described in harrowing terms the suffering she had experienced. Speaking of this, the sentencing judge said:
She spoke of one of her worst memories being the abortion that she had to have and she recounts the most traumatic and humiliating details of this experience.
She said that so much of her life had been completely dominated and controlled by your offending; that she spent the last year of the abuse convinced that she wanted to die and she gave most disturbing details of your treatment of her and that of her mother when she was contemplating suicide.
[LF] said that the violation that she had felt from years of the abuse was incomparable. She said that there was nothing in her life or in her future that could be put on the same scale as what you did to her. She said that she will never want to have a baby and that even the thought of babies leaves her upset for weeks on end. She said that she will never know what it feels like to be normal and she feels that no matter how hard she tries, she will always be haunted by you and what you have done.[7]
[7]Ibid [81]–[83].
In turn, the sentencing judge summarised the victim impact statement of BF:
[BF] says that she does not really enjoy her life and that your offending has affected her relationship with everyone, including that with her sister, [LF]. She misses [LF], although she has tried to rebuild a relationship with her. She spoke of the splintering of the family, that she often feels numb but in relation to your offending, she feels so much hate, confusion, isolation, fear, shame and guilt. It has also impacted on her relationship with her mother, although she says that she still loves her. She said that she has experienced symptoms of depression, Post-Traumatic Stress Disorder and anxiety, but she says that these conditions have not been diagnosed. She has had suicidal thoughts and lacks motivation. She stresses about her children’s safety. She has flashbacks and things that trigger memories of your offending. She said that she has had to start a new life from scratch which has included moving to a new house, which is some distance from her counselling appointments, as well as from [LF] and her friends. She said that she used to have a passion for music but that she had lost this, that she has become introverted, although it is also hard when she is alone. She said that she had been learning how to drive your car but it had been sold as it was triggering memories.[8]
[8]Ibid [85].
The sentencing judge also referred to a victim impact statement from the victims’ mother, KL, which confirmed the devastating impact that the offending has had on her family.
Personal considerations affecting the applicant and other relevant matters
The sentencing judge then turned to the matters put forward on behalf of the applicant. First, there was evidence from Dr Danny Sullivan, psychiatrist, that the applicant satisfied a diagnosis of poly-substance abuse or dependence predominantly involving cannabis and alcohol at the time of the offending. Dr Sullivan also made a provisional diagnosis of recurrent depressive disorder of mild to moderate severity.
It appeared that the applicant had heavily abused alcohol and cannabis together with prescription medication since he was 14 years old. Since his incarceration, however, he had been alcohol and drug free and had undertaken two drug and alcohol programs.
Dr Sullivan was of the view that substance abuse may have disinhibited him and been associated with some of the offending. As the judge recorded, whilst this may explain the offending to some extent, it was conceded that it could not diminish the applicant’s moral culpability.
The applicant had no criminal history and had experienced difficult conditions on remand as he was caught up in extended lockdown through no fault of his own. He was a protected prisoner because of the nature of his offending. A consequence of his imprisonment was that he had been separated from his son and would continue to not see him during the course of his further imprisonment. These matters, together with Dr Sullivan’s prognosis concerning the applicant’s ongoing depressive symptoms, founded a conclusion that his time in jail would be harsher than for someone without that difficulty.
In addition, the applicant was entitled to the benefit of a plea of guilty entered at the committal stage. The sentencing judge accepted in turn that the applicant did have some remorse for what he had done.
The applicant was born in country Victoria and had four siblings. When he was 11 years old, he discovered that his sister was in fact his mother and the people who he had regarded as his parents were in fact his grandparents. Understandably, this was initially difficult to accept and caused some relationship difficulties. The applicant sees this as having had a lasting impact upon him.
The applicant has continuing family support and, having regard to this and other factors, including a good work history, the sentencing judge accepted that his prospects of rehabilitation were fair to good. In this regard, Dr Sullivan’s report stated:
Much of [the applicant’s] understanding of the offending will arise from undergoing offence-specific treatment through the Specialised Offender Assessment & Treatment Service. This will enable a better understanding of the vulnerabilities which have led him into offending. A better understanding of risk of future sexual offending will develop after he has undertaken sex offender treatment. In general, sexual offenders against stepchildren have relatively low rates of recidivism compared to the general population of male sexual offenders.
In turn, the sentencing judge placed moderate weight on considerations of specific deterrence.
The sentencing judge also recorded that she took into account that the applicant fell to be sentenced as a serious sexual offender after being sentenced on charge 2.
The sentencing judge also took into account current sentencing practice.
Manifest excess
In the applicant’s written case, it is submitted that the individual sentences imposed, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in that they fail to take into account or give adequate weight to a number of mitigating factors put on behalf of the applicant. The matters emphasised are:
(h) the applicant’s early plea of guilty;
(i) the applicant’s lack of prior criminal history;
(j) the principle of totality requiring appropriate concurrency between the charges;
(k) the hardship of imprisonment on the applicant, given his circumstances; and
(l) the low risk of reoffending and good prospects of rehabilitation of the applicant.
The sentencing judge had regard to each of these matters. It must be accepted that each of them was a material consideration, but they fell to be weighed against the objective gravity of the offending and its horrific impact upon the victims. Insofar as the individual sentences are concerned, despite the factors personal to the applicant relied upon, we are not persuaded that the sentences were ‘wholly outside the range of sentencing options available’.[9] The maximum penalty for each of the offences was 25 years’ imprisonment and the offending in each case constituted grave examples of the offence. Whilst the individual sentences for persistent sexual abuse of a child under 16 years might fairly be characterised as stern, they were not, in our opinion, manifestly excessive. When regard is had to the vulnerability of the victims, their exploitation, the harm done to them and the overall circumstances in which the offending occurred, the challenge to the sentences on the charges of persistent sexual abuse must fail.
[9]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); Young v The Queen [2016] VSCA 149 [128] (Ashley, Whelan and Kaye JJA).
The matters personal to the applicant must be balanced against the interests of the community and the victims. In DPP v DDJ,[10] Maxwell P, Vincent and Neave JJA quoted with approval the earlier statement of Vincent JA in DPP v Toomey[11] concerning the notion of social rehabilitation.
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[12]
[10](2009) 22 VR 444.
[11][2006] VSCA 90.
[12]DPP v Toomey [2006] VSCA 90 [22] cited in DPP v DDJ (2009) 22 VR 444, 454 [40].
In oral argument, Mr McLoughlin accepted that the sentence imposed on charge 1 could not be said to be outside the range open to the sentencing judge. Nevertheless, he submitted that the sentence on charge 3 should have been less having regard to the absence of aggravating features relevant to the sentence on charge 1. In particular, he drew attention to the pregnancy and abortion which LF underwent and he submitted that she had suffered a greater extent of ongoing psychological distress and harm.
In our view, it was open to the judge to impose the same sentence on each charge. There are a number of circumstances which counterbalance the matters raised in respect of the relative seriousness of charge 1:
(m) the offending particularised with respect to charge 3 included an additional form of sexual penetration;
(n) the evidence enabled the judge to form firmer conclusions as to the actual number of incidents of penile penetration involved in charge 3 than was the case with charge 1. They were, as the judge’s summary indicates, very numerous;
(o) the applicant engaged in unprotected sex with both victims;
(p) BF’s victim impact statement confirmed that she had suffered very serious mental distress and psychological disturbance. Some purported quantification of the relative anguish and psychological distress suffered by the two victims would be very problematic and does not provide a satisfactory basis for differentiating between them;
(q) the applicant fell to be sentenced as a serious sexual offender with charge 3, but not charge 1.
In our view, although each of these matters is relevant, the last factor above is itself sufficient to answer the applicant’s argument.
Mr McLoughlin also referred to current sentencing practices and submitted that the total effective sentence of 15 years was higher than had been imposed for comparable offending. There are a series of problems with this submission:
(r) he did not in fact point to other cases involving the same combination of offending as in the present case;
(s) the cases referred to include Director’s appeals in which account was taken of double jeopardy. Thus, in DPP v DZ,[13] eight years was imposed with respect to a charge of persistent sexual abuse of a child under 16 years and 3 ½ years was cumulated for a second charge. On their face (and without regard to a series of additional aggravating factors present in the present case), the sentences were entirely consistent with the level of the present sentences once it is understood they were discounted for double jeopardy;
(t) each case turns on its detailed facts. In reaching our conclusions, we have had regard to current sentencing practice including the decisions in DPP v DDJ,[14] DPP v DZ,[15] and McDonald v R;[16]
(u) the seriousness of offending of this type has long been recognised.[17] We are not persuaded when regard is had to the difference in the facts in the cases to which the Court was referred in argument that current sentencing practice can be said to support the view that the sentences for persistent sexual abuse were manifestly excessive.
[13][2009] VSCA 301.
[14](2009) 22 VR 444.
[15][2009] VSCA 301.
[16](2014) 43 VR 152.
[17]See the cases cited in DPP v DDJ (2009) 22 VR 444, 453 [39].
Insofar as the individual sentences on the incest charges are concerned, they could not on any view be regarded as manifestly excessive.[18]
[18]See the cases referred to in Reid (a pseudonym) v R (2014) 42 VR 295; DPP v DJ (2011) 211 A Crim R 367; DPP v Dalgliesh [2016] VSCA 148.
Insofar as the principle of totality is concerned, the sentencing judge did provide for significant concurrency. The cumulation with respect to each of the incest charges was only one year despite the fact that the maximum penalty is 25 years. Moreover, the cumulation of four years in respect of the second victim in respect of the persistent sexual abuse charge could not be regarded as excessive, particularly when it is recognised that the applicant fell to be sentenced as a serious sexual offender with respect to this charge.
The non-parole period fixed was plainly within range if the total effective sentence is not disturbed.
In the circumstances, we would refuse leave to appeal.
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