Tognolini v The Queen
[2011] VSCA 113
•20 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0554
| TERRENCE RAYMOND TOGNOLINI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, BUCHANAN and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 January 2011 |
| DATE OF JUDGMENT | 20 April 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 113 |
| JUDGMENT APPEALED FROM | R v Tognolini (Unreported, County Court of Victoria, Judge Sexton, Date of verdict: 17 November 2008; Date of Sentence: 5 March 2009) |
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CRIMINAL LAW – Appeal – Conviction – Maintaining sexual relationship with child under 16 – Proof that sexual offence committed on three separate ‘occasions’ – Whether sufficient to prove three acts committed in one episode – Need for clear separation in time or circumstance – Evidence not capable in law of supporting charge – Applicant convicted of alternative count of indecent act – Whether alternative count open – Whether acquittal on one alternative count inconsistent with conviction on another – Conviction upheld – Crimes Act 1958 (Vic) s 47A(1), (5).
CRIMINAL LAW – Appeal – Conviction – Attempting to pervert the course of justice – Whether conduct directed at police investigation capable of constituting offence – Conviction upheld.
CRIMINAL LAW – Appeal – Sentence – Attempting to pervert the course of justice – Sentence of six years’ imprisonment – Consideration of current sentencing practices – Sentence outside the range – Resentenced to four years’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P G Priest QC with Mr T Kassimatis | Galbally Rolfe |
For the Crown | Mr O P Holdenson QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
BUCHANAN JA
REDLICH JA:
Summary
This case raises an important question about the scope of the offence created by s 47A of the Crimes Act 1958 (Vic) (‘Crimes Act’).[1] At the relevant time, the offence was known as ‘maintaining a sexual relationship with a child under the age of 16’. Following an amendment in 2006,[2] the offence is now known as ‘persistent sexual abuse of a child under the age of 16’. The elements of the offence are unchanged.
[1]As counsel noted at the commencement of argument, the same question of the scope of s 47A had arisen in a different criminal trial and the judge had reserved the question for consideration by this Court, pursuant to s 302 of the Criminal Procedure Act 2009. The disposition of the stated case was deferred, to await the outcome of this appeal.
[2]See Crimes (Sexual Offences) Act 2006, s 11.
The applicant was charged with an offence under s 47A. As this Court explained in R v SLJ:[3]
To prove the offence, the prosecution was required by s 47A(2) to establish that, on three separate “occasions” during a particular period and while the child was under the age of 16 years, the accused “did an act in relation to the child which would constitute an offence” against certain provisions of the Act. The relevant offences included sexual penetration of a child under 16 and committing an indecent act with or in the presence of a child under 16.
[3](2010) 24 VR 372, 373 [3] (‘SLJ’) (citations omitted).
As will appear,[4] the Crown case was put in two ways, the second of which was that the applicant had committed a relevant act on each of three ‘occasions’ in the course of a single evening. On the complainant’s evidence, the three individual sexual acts had all occurred during one period of sexual activity in the course of that evening.
[4]See [17]–[18] below.
For reasons which follow, we have concluded that the circumstances in which those acts occurred could not in law have satisfied the requirement in s 47A that there be three separate occasions. Where two (or more) acts occur, it will not be open as a matter of law to conclude that they occurred on separate ‘occasions’ unless there is a clear separation in time or circumstance between the acts.
In the event, the jury acquitted the applicant on the s 47A count but convicted him, pursuant to s 47A(5), of an alternative count of committing an indecent act with a child under 16. It was submitted that the alternative count was not available in circumstances where the principal count under s 47A was not open as a matter of law. For reasons which follow, we have concluded that this submission must be rejected.
Background
In addition to the conviction on the indecent act count, the applicant was convicted on one count of attempting to pervert the course of justice. He also pleaded guilty to 18 counts of supplying a drug of dependence to a child. He was acquitted on a count of sexual penetration of a child under the age of 16 years, which was also an alternative to the s 47A count.
He was sentenced to be imprisoned for four years on each of the counts of supplying a drug of dependence to a child, for two years on the indecent act count, and six years on the count of attempting to pervert the course of justice. With a measure of cumulation, an effective total sentence of eight years and six months’ imprisonment was produced. A term of six years and six months’ imprisonment was fixed before the applicant was to be eligible for parole.
The applicant seeks leave to appeal against his conviction and sentence.
The applicant was aged 41 when the offences were alleged to have occurred. The applicant lived in a house equipped with high security measures, including external roller shutters on the windows, a closed TV system and surveillance cameras. The house was frequented by young girls, mainly in their mid-teens, who were supplied with drugs by the applicant. The drugs were cannabis, ecstasy and amphetamine. The girls would stay awake for days under the influence of drugs and then sleep.
Early in 2006, the applicant was introduced to JS by the teenage daughter of his partner. Later that year, JS began spending time at the applicant’s house and she brought her friends to it. In this fashion, the applicant met KB, another young girl.
KB was aged 14 years when she met the applicant. She was troubled and vulnerable, as were the other girls. KB had been left without accommodation or support in Melbourne when her mother returned to country Victoria, where the family lived. A stranger found KB crying in a park and gave her a lift to meet JS, whom she knew from her home town.
The applicant and KB met on 31 October 2006 and that night they commenced a sexual relationship, which lasted for some four to six weeks. KB described it as ‘like being married’. The applicant and KB shared a bed and went out to dinner together. KB accompanied the applicant to a family wedding. KB said she had been a heavy user of cannabis, and the applicant introduced her to amphetamine and methylamphetamine.
KB said that she first told the applicant that she was 16 years’ old. She left the applicant’s house on about 10 December 2006. Almost a week before she left, she said that she moved out of the applicant’s bed, after telling him that she was 14 years’ old. KB said that she slept with the applicant once more before she left.
The applicant gave evidence. He said that he had had a consensual sexual relationship with KB. She had told him that she was 16 years’ old, nearly 17, and had just finished school. He said that later he was told by JS that KB was only 14 and, when he confronted KB, she conceded that she was only 14 years’ old. The applicant said he did not have any sexual contact with KB after that.
Evidence not capable of establishing offence under s 47A
The principal argument for the applicant was directed at a ground of appeal which was added, by leave, at the commencement of the hearing. The ground was in these terms:
A miscarriage of justice was occasioned by the verdict of guilty of an offence under s 47 of the Crimes Act 1958 (indecent act with a child under 16) as an alternative to count 4.[5]
Particulars
(a)The three acts the subject of the last single incident on which the applicant and the complainant were allegedly sexually intimate were incapable in law of amounting to three ‘occasions’ for the purposes of s 47A of the Crimes Act 1958; and
(b)by reason of the matters in (a) no alternative offence could properly have been left to the jury under s 47A(5) of the Crimes Act 1958.
[5]Count 4 was the s 47A count.
Section 47A of the Crimes Act provided, so far as is presently relevant:
(1) A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married is guilty of an indictable offence.
(2) To prove an offence under subsection (1) it is necessary to prove—
(a) that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and
(b) that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period.
…
(3)It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).
…
(5) If on the trial of a person charged with an offence against subsection (1) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that the accused did an act during that period which constitutes an offence against Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I, the jury must acquit the accused of the offence charged but may find him or her guilty of that other offence and he or she is liable to punishment accordingly.
As noted earlier, the relevant offences said to have been committed were sexual penetration of a child under 16[6] and indecent act with a child under 16.[7]
[6]Crimes Act s 45.
[7]Crimes Act s 47.
In her charge, the trial judge directed the jury that the s 47A offence could be established in either of two ways. (We will refer to them as ‘the primary s 47A case’ and ‘the secondary s 47A case’ respectively). The primary s 47A case was that the three occasions could be found in the acts of sexual intercourse that took place nearly every day during the period in which KB stayed at the applicant’s house. It is important to emphasise that this period included the final night, to which the secondary case was confined. As noted earlier, the defence was that, throughout the entire period, the applicant had believed on reasonable grounds that KB was 16 or over.[8]
[8]Crimes Act s 45(4)(a); s 47(2)(a).
The secondary s 47A case was that the three occasions could be found in the sexual encounter between the applicant and KB on the final night. Her Honour said:
It is also sufficient if you decide that the accused did at least three acts on one night. ‘Occasion’ in this context simply means a separate event.
Her Honour identified as candidates for the separate ‘events’ on the last night the act of sexual penetration of KB’s mouth and the indecent acts of touching and licking her vagina respectively.
In our view, it is clear from the terms of subsections 47A(2) and (3) that the legislature intended to draw a distinction between an ‘act’ and an ‘occasion’. The former would be constituted by the actus reus of an offence. The latter is a reference to a juncture of circumstances amounting to an episode. Thus the first definition of ‘occasion’ in the Macquarie Dictionary is: ‘a particular time esp. as marked by certain circumstances or occurrences’.
In KRM v R,[9] McHugh J said:
The need for the prosecution to prove that ‘such an act also took place … on at least two other occasions’ indicates that the prosecution must prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each ‘occasion’. Reference to circumstances or occurrences happening at a particular time is the usual way of identifying or describing an ‘occasion’. In the context of s 47A, where it would make no sense to describe the ‘act’ as the occasion and where the date and the exact circumstances need not be proved, the term ‘occasion’ should be understood as referring in a general way to the circumstances accompanying the ‘act’. That this is a construction which the legislature intended to place on s 47A(3) is supported by the amendment to that subsection which was made by Act No 81 of 1997. The Amendment declares:
It is not necessary to prove an act referred to in subsection 2(a) or (b) with the same degree of specificity as the date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).
[9](2001) 206 CLR 221, 227 (‘KRM’).
Of more immediate relevance is a recent decision of the Northern Territory Court of Criminal Appeal, to which senior counsel for the Crown helpfully drew our attention. In Kelly v R,[10] Riley J said of a similar provision:
There is nothing in the section or in the expression ‘three or more occasions’ to suggest the legislature intended that any particular period of time or any particular circumstance would constitute an occasion. In my view, the word ‘occasions’ within the expression contemplates at least three separate events or occurrences. There would not be more than one occasion if the acts were effectively part of one continuous occurrence. Whether two or more acts defined to constitute an offence of a sexual nature occurred on one or more occasions will always be a matter of fact for the jury to resolve. However, in my view, for more than one act to be described as occurring on a separate occasion there must be present, at least, a temporal separation or a separation in circumstances between the acts sufficient to warrant such a description.
[10][2010] NTCCA 8, [19] (emphasis added).
We respectfully agree. As McHugh J said in KRM,[11] the ‘occasion’ on which an act takes place will be defined for the purposes of s 47A – and must be identified by the prosecution – by reference to the surrounding ‘circumstances or occurrences’. Where two (or more) acts occur, it will not be open as a matter of law to conclude that they occurred on separate ‘occasions’ unless there is a clear separation in time or circumstance between the acts. DDJ,[12] for example, was a case where, although the circumstances of the sexual abuse remained largely unchanged throughout the sexual relationship, the individual acts relied on to establish the s 47A count occurred on different days and, hence, on separate occasions.[13]
[11](2001) 206 CLR 221, 227; see also REE v R [2010] VSCA 124, [12] and SLJ, [8].
[12](2009) 22 VR 444.
[13]Ibid [9]–[11].
In the present case, as senior counsel for the Crown properly conceded, the sexual acts relied on were not separated in either time or circumstance. As described by the complainant, the individual sexual acts took place as part of an unbroken sequence of sexual activity on the final night. This was a single occasion, a single episode. As a matter of law, therefore, the evidence of the individual acts which took place on that night could not have established the s 47A count.
Was the alternative count available?
Senior counsel for the applicant submitted that, as the jury had acquitted the applicant on the s 47A count, they must have upheld his defence that – up to the time when KB told him she was 14 – he had believed (on reasonable grounds) that KB was 16 or over. It followed that the guilty verdict on the indecent act alternative to count 4 must have related to the last sexual encounter. Since the sexual acts on that occasion could not have established the secondary s 47A case, it was said, the alternative count was not properly before the jury and thus not available as a basis for conviction.
We are not persuaded by this submission. In our view, an alternative count can properly be left to the jury when the accused has been presented on a substantive count, the allegations in the presentment include an allegation of the alternative offence, and the alternative count is open on the evidence as a real possibility.[14] Those conditions were satisfied in the present case.
[14]R v Saad (2005) 156 A Crim R 533.
A substantive count under s 47A includes – or, more accurately, is a composite of – at least three separate allegations of sexual offending. Each is an allegation that on a particular occasion the accused committed a relevant sexual offence against the victim.[15] It is those separate allegations which create the possibility of conviction on an alternative count under s 47A(5). The trial was conducted on the basis that the alternatives were available. That necessarily followed from the presence of s 47A(5). That is, the applicant knew that the case against him under s 47A(1) carried with it the possibility that, should the substantive case against him fail, he might nevertheless be convicted of an alternative offence in accordance with s 47A(5), if the evidence established his guilt of that offence.
[15]KRM (2001) 206 CLR 221, 236 (McHugh J), 245 (Gummow and Callinan JJ), 265 (Hayne J); see also R v PDW (2009) 25 NTLR 72, 80 [13]–[16].
The jury rejected the Crown case so far as it identified occasions and offences in the period before the complainant told the applicant her age, evidently because they accepted his evidence that until then he had believed (on reasonable grounds) that the complainant was 16 or over. But, as noted earlier, the primary s 47A case covered the whole period of the relationship. The last night was part of that period and, hence, was capable of being a relevant occasion. Senior counsel for the applicant conceded, quite properly, that this was so. The fact that the primary s 47A case failed on the facts – because of the applicant’s belief about KB’s age – left the alternatives under s 47A(5) open in relation to the events on the last night. The jury accepted that a sexual offence was committed on that night, evidently on the ground that by then the applicant knew KB was only 14.
On this view, it is immaterial that the evidence as to what occurred on the last night could not have made out the secondary s 47A case. The events of the last night were also part of the primary s 47A case, as to which the only obstacle to conviction was a factual one.
Even if that had not been so, and we had been confined to considering the secondary s 47A case, we would have come to the same conclusion. It is open to a jury to convict of an alternative count under s 47A(5) if they ‘are not satisfied that [the accused] is guilty of the offence charged.’ In our view, the statutory language is wide enough to accommodate the circumstance under consideration, that is, where the evidence led is not capable of establishing the substantive count but is capable of establishing an alternative count.
There was no miscarriage of justice. This ground fails.
Inconsistent verdicts
The evidence with respect to the final night was as follows. In the course of a video-taped interview by a policewoman, KB said that after she told the applicant her true age:
He was sort of just like, freaked-out a bit and then it was just back to normal and I left.
She said that ‘back to normal’ meant still having sex ‘but not as much’.
Subsequently, at a special hearing before the trial, KB said that she slept in the applicant’s bed after she told him her true age. She said:
I had sex with him one more time, I know that I did.
Later, she said:
I’m not 100 per cent sure it was sex, but there was sexual contact … we laid on his bed and he was touching me and I was touching him.
When she was re-examined, KB said that, when her relationship with the applicant was coming to an end and prior to leaving his house, she slept in his bed once. The following exchange ensued:
On the occasion that you slept in his bed after that time, what happened?… We – had sexual contact.
Alright. You’ll have to tell us what you mean by that?…We were touching each other, and he went down on me and then – and I went down on him.
Alright. Now first of all, when you say you were touching each other, can you describe please what you meant?…He was touching my vagina.
And you were touching – well, you were touching each other. Apart from him touching your vagina, was there anything else being touched on either of your bodies? …No.
You just told us that involved the – that time that you slept in his bed that you went down on him?…Yes.
Again, what did you mean by that, please?…I sucked on his penis.
You describe that on the same occasion when you slept in his bed that he went down on you?…Yes.
What did you mean by that please?…He licked my vagina.
Counsel for the applicant submitted that there was no rational basis upon which the jury could select one of the three offences said to have been committed on the last occasion KB and the applicant had sexual contact. There was no material ground of distinction between the quality of KB’s description of conduct constituting the count on which the jury returned a guilty verdict and the counts on which the applicant was acquitted. There was no distinguishing feature of the applicant’s generalised denial of one count but not the others. Counsel said that there was no feature of KB’s separate evidence in respect of the alleged acts which was capable of explaining rationally the different verdicts on each count.[16]
[16]See R v JA [2008] VSCA 169, [54]–[69].
We disagree. In our opinion, there did exist a rational basis upon which the jury could differentiate. It was open to them to entertain a reasonable doubt that the applicant had penetrated KB’s mouth with his penis but at the same time to be satisfied beyond reasonable doubt that he had touched her vagina.
In cross-examination at the special hearing, KB said that she had ‘sexual contact’ with the applicant, which she described as ‘we laid on his bed and he was touching me and I was touching him’. At the commencement of her re-examination, KB said that when she ‘laid’ with the applicant, they ‘touched each other’. Her statement that ‘I sucked on his penis’ was made only once, at the end of KB’s re-examination. In the light of the manner in which the evidence of penetration emerged, we are of the opinion that it was open to the jury to entertain a reasonable doubt as to that particular allegation, but remain satisfied by the earlier and repeated statements of touching.
Attempting to pervert the course of justice
The evidence relating to the count of attempting to pervert the course of justice was given by JS and another of the girls who frequented the applicant’s house. They said that the applicant arranged for them to attend at a solicitor’s office and told them to make affidavits deposing that KB and other girls who had made allegations against him were liars.
The affidavits were in identical terms. The deponents swore:
1.THAT I understand that Police wish to take a statement from me about certain matters regarding Terrence Tognolini.
2.THAT I am unable to assist the Victoria Police in any way as I do not believe that Terrence Tognolini has committed any offences.
3.THAT I am aware that the following girls [three girls were named] have made allegations against Terrence Tognolini. I have not witnessed any offences committed by Terrence Tognolini in relation to these girls. I have known all the aforementioned girls for a number of years and am aware that they often tell lies.
The affidavits were not true. The girls said that the applicant drove them to the solicitor’s office and afterwards gave them drugs and money. One of the girls said that when she was in the solicitor’s office, she could see the applicant in a waiting room. The applicant put his hand around his throat as if he were being strangled. She said she felt intimidated.
In his evidence the applicant said that he suggested that the girls make affidavits saying that KB and other girls were liars. He did not offer them drugs or money and did not make a strangling gesture. He later paid one of the girls $200, but said that was her regular monthly payment.
The next two grounds of the application for leave to appeal against conviction are as follows:
2AA miscarriage of justice was occasioned by the trial judge leaving count 26 (attempting to pervert the course of justice) to the jury; and in particular, conduct alleged against the applicant who was incapable of having a tendency to pervert the course of justice.
2BThe verdict on count 26 is unsafe and unsatisfactory, since a properly instructed and reasonable jury ought to have had a reasonable doubt about the guilt of the applicant.
Counsel for the applicant submitted that the evidence was incapable of establishing that the applicant attempted to pervert the course of justice because his conduct amounted to no more than an attempt to impede the police in their investigation of a possible offence. In any event, so it was said, the applicant believed he was innocent and, in attempting to avoid being prosecuted for offences he did not commit, he had no intent to pervert the course of justice. Finally, it was submitted that there was no evidence that the applicant contemplated or intended that the affidavits would be given to the police.
While police investigations do not themselves form part of the course of justice, which begins when process is issued invoking the jurisdiction of a court or if a step is taken that marks the commencement of criminal proceedings, the offence of attempting to pervert the course of justice can be committed before curial proceedings have commenced. In R v Rogerson, [17] Mason CJ said:
It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency. … Action taken to prevent the institution of a prosecution is as much an interference with, or impairment of, the administration of justice as action taken to obstruct the conduct of a prosecution after it has been commenced.
In the same case, Brennan and Toohey JJ said:
Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice. An act which has the tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice.[18]
[17](1992) 174 CLR 268, 277–8 (citations omitted).
[18]Ibid 283–4.
The conduct of the applicant described by the two girls was capable of having a tendency to deflect the police from prosecuting the criminal offence and adducing evidence of the true facts, thereby frustrating the course of curial proceedings. It was open to the jury to reject the applicant’s evidence of an intention to prevent him being wrongfully pursued for offences he did not commit.
In any event, the applicant’s employment of threats and inducements to make the false affidavits could constitute an attempt to pervert the course of justice even though the applicant may have believed that he had not committed any crime. In R v Kellett, [19] Stephenson LJ, speaking for the Court of Appeal, said:
Threats and bribery are the [improper] means used by offenders in the cases, and any pressure by those means – or by force, as for example by actually assaulting or detaining a witness – would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it ‘through affection, fear, gain, reward or the hope or promise thereof’ (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope.
[19][1976] 1 QB 372, 388. See also Librizzi v Western Australia (2006) 33 WAR 104.
The absence of direct evidence that the affidavits were to be given to the police was not a fatal defect in the Crown case. The jury could infer from the production of the affidavits at the direction of the applicant that he intended to use them to forestall the laying of a charge against him.
For the foregoing reasons, we would dismiss the application for leave to appeal against conviction. We turn to the application for leave to appeal against sentence.
The sentence application
The applicant is 46 years’ old. He is one of seven children. He had three children from a relationship which has ceased. One of the children died in infancy.
The applicant completed secondary school and a number of TAFE courses. He established and conducted a hydroponics business manufacturing plant food and associated goods. For some years the applicant was a member of the Hells Angels Motor Cycle Club. As a result of a motor cycle accident, he suffers from epilepsy.
The applicant had 23 prior convictions from 10 court appearances, including offences of dishonesty, drug offences and armed robbery. The applicant used cannabis from the age of 16 years and has used amphetamine. A report by a psychiatrist was tendered in the course of the plea. The psychiatrist was of the opinion that the applicant suffered from recurrent depression, which was moderate in severity. The psychiatrist said:
Although he has exhibited gross errors of judgement in his dealings with teenage girls, and demonstrates a poor understanding of the appropriate boundary of the behaviour with young girls, this does not appear to be premised upon deviant sexual arousal which is necessary for a diagnosis of paedophilia.
The applicant could rely on several mitigating factors. He pleaded guilty to the counts of supplying drugs of dependence to children. Since his arrest in 2007 the applicant had been held in a management unit and was likely to remain there. The conditions in a management unit are onerous. The applicant had been locked down for between 22 and 23 hours a day and had limited opportunity to associate with other prisoners or to exercise. Finally, there was a measure of untoward delay in trying the charges against the applicant.
The maximum sentence for the offence of attempting to pervert the course of justice is 25 years’ imprisonment. The sentencing judge recognised that the applicant may have acted in the belief that he was innocent of any sexual offence and said his offending was ‘towards the higher end of the middle range’.
Counsel for the respondent conceded that the sentence imposed upon the applicant in respect of the count of attempting to pervert the course of justice ‘might be described by some as “stern”’. Research by counsel for the applicant resulted in the preparation of the attached table. The sentence here imposed was 50 per cent higher than the highest sentence in that table. Counsel submitted that the sentence was ‘possibly’ the most severe sentence for the offence ever imposed in this State. The maximum sentence is high, but the offence may be constituted by a constellation of different circumstances.
We regard the sentence imposed upon the count of attempting to pervert the course of justice as outside the range reasonably open to the sentencing judge, appropriate regard being had to current sentencing practices. We would substitute a sentence of four years’ imprisonment on that count.
We would confirm the sentences of four years’ imprisonment imposed by the sentencing judge on each of the counts of supplying a drug of dependence to a child and the sentence of two years imposed on the count of an indecent act with a child under the age of 16 years. We would cumulate one month of each of the sentences imposed on the counts of suppling a drug of dependence to a child and 12 months of the sentence on the count of an indecent act with a child upon each other and upon the sentence imposed on the count of attempting to pervert the course of justice. The total effective sentence is six years and six months’ imprisonment. We would fix a minimum term of four years and six months’ imprisonment before the applicant is to be eligible for parole.
But for the applicant’s plea of guilty to the counts of supplying a drug of dependence to a child, we would have sentenced him to a term of five years’ imprisonment on each of those counts. We would have fixed a total effective sentence of seven years and six months’ imprisonment and a non-parole period of five years and six months’ imprisonment.
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CASE
CITATION
INDIVIDUAL TERM
DPP (Cth) v Fincham
(2008) 75 ATR 545
6 months’ imprisonment
DPP v Aydin and Kirsch
[2005] VSCA 86
2 years’ imprisonment
DPP v Josefski
(2005) 13 VR 85
15 months’ imprisonment
R v Aydin
(2005) 11 VR 544; [2005] VSCA 85
15 months’ imprisonment
R v Aydin and Flett
[2005] VSCA 87
2 years’ imprisonment and 2½ years’ imprisonment
R v Briggs
(2000) 117 A Crim R 114
12 months’ imprisonment
R v Carey
[2007] VSCA 319
2 years’ imprisonment
R v Coombe
[1999] VSCA 94
4 months’ imprisonment
R v Davis
[2007] VSCA 276
18 months’ imprisonment
R v Dunmall
[2008] VSCA 22
9 months’ imprisonment
R v Galea
[2001] VSCA 115
4 years’ imprisonment
R v Johns
[2010] VSCA 63
2 years’ imprisonment (reduced from 2 ½ years)
R v Matheas
[2003] VSCA 221
6 months’ imprisonment
R v Redmond & Anor
[2006] VSCA 75
3 months imprisonment & 4 months’ imprisonment
R v Ripper
[2008] VSCA 40
2 years’ imprisonment
R v Rodden
[2005] VSCA 24
18 months’ imprisonment
R v Rogers
[2008] VSCA 114
15 months’ imprisonment
R v Stevens
[2009] VSCA 81
12 months’ imprisonment
R v Walsh
[2002] VSCA 98
3 years’ imprisonment
R v Yacoub
[2006] VSCA 203
2 years’ imprisonment
R v Zaydan & Ors
[2004] VSCA 245
4 years’ imprisonment
38
5
0