Tones v The Queen
[2017] VSCA 118
•25 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0189
| DAVID TONES | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | MAXWELL P, REDLICH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 May 2017 |
| DATE OF JUDGMENT: | 25 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 118 |
| JUDGMENT APPEALED FROM: | DPP v Tones (Unreported, County Court of Victoria, Judge Taft, 17 August 2016) |
---
CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (6 charges), indecent act with child under 16 (6 charges) – Total effective sentence 7 years 7 months’ imprisonment, non-parole period 5 years 3 months’ imprisonment – Whether manifestly excessive – Persistent, exploitative offending – Plea of not guilty – Delay of six years – Considerations of fairness and rehabilitation – Whether reflected in sentence – No remorse or recognition of wrongfulness of offending – Current sentencing practices – Sentence moderate – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P S Kilduff | Stary Norton Halphen |
| For the Crown | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
KYROU JA:
On 20 April 2016, the appellant, now aged 51, was found guilty by a jury in the County Court of six charges of sexual penetration of a child under the age of 16, contrary to s 45(1) of the Crimes Act 1958, and six charges of indecent act with a child under the age of 16, contrary to s 47(1) of that Act. All of the offences were committed against complainant ‘C’, except charge 5 which was committed against complainant ‘A’. The appellant was acquitted of eight other charges.
On 17 August 2016, the appellant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
5
Indecent act with a child under 16
10 years
12 months
6 months
8
Indecent act with a child under 16
10 years
12 months
1 month
9
Indecent act with a child under 16
10 years
12 months
1 month
10
Sexual penetration of a child under 16
10 years
3 years
9 months
11
Indecent act with a child under 16
10 years
18 months
3 months
13
Sexual penetration of a child under 16
10 years
3 years
9 months
14
Indecent act with a child under 16
10 years
18 months
3 months
15
Sexual penetration of a child under 16
10 years
3 years
9 months
16
Sexual penetration of a child under 16
10 years
3 years
9 months
17
Indecent act with a child under 16
10 years
12 months
1 month
18
Sexual penetration of a child under 16
10 years
3 years
4 months
19
Sexual penetration of a child under 16
10 years
3 years
Base
Total Effective Sentence:
7 years and 7 months’ imprisonment
Non-Parole Period:
5 years and 3 months’ imprisonment
Pre-sentence detention declaration: 120 days Other orders: Sentenced as a serious sexual offender on charges 9, 10, 11, 13, 14, 15, 16, 17, 18 and 19. Sex offender registration for life.
On 14 December 2016, the appellant was granted leave to appeal on the ground that the sentences imposed on him on all charges are manifestly excessive.
For the reasons that follow, we would dismiss the appeal.
Circumstances of offending
Both parties accepted that the circumstances of the offending were accurately described by the judge in the following paragraphs of his sentencing remarks:
In January 2005, [the appellant was] living with [his] wife and son [in a rural town]. ‘A’, whose family were friendly with [the appellant’s] family, began boarding with [him] when she commenced attending high school at [a named] Secondary College.
On an occasion between 1 January 2005 and 30 April 2005, [the appellant] touched A’s vagina over her underwear as she lay beside [him] on [his] bedroom bed. Another teenage girl, who was boarding at [the appellant’s] house, gave evidence that she frequently observed [his] interaction with A and had seen her in bed with [him] when [his] wife was working. A said that she was embarrassed when the other boarder told her that she had seen A in the bedroom with [the appellant].
That conduct founds Charge 5 on the indictment being the commission of an indecent act.
At the time [the appellant] offended against A, [he was] some 39 years old. A was only 13.
The other proven charges relate to a second teenage girl, ‘C’ and encompass seven discrete episodes of offending.
C was born on 6 April 1992. C was a good friend of A and, on 9 March 2007, she attended a party with other friends before returning to stay overnight at [the appellant’s] house. As she was walking towards [the appellant’s] house, [he] approached her and she hugged [him] and kissed [him] on the cheek in a friendly manner. C described herself as being a ‘happy drunk’. [The appellant] kissed her on the mouth before [they] both returned to the house. When inside the house, [the appellant] approached C, kissed her on the mouth, and then kissed her on her bare breasts. The kissing of her breasts is the foundation for Charge 8, committing an indecent act.
At the time that [the appellant] offended, C was 14 and [he was] 41.
The next day, [the appellant] offered to drive C to [another rural town]. [He] stopped at a block of toilets and kissed C on the mouth before again kissing her breasts and giving her a ‘love bite’. The kissing of C’s breasts is the foundation for the charge of indecent act, being Charge 9.
On another occasion between March and November 2007, [the appellant] arranged to meet C late at night. She snuck out of her house when everyone else was sleeping and [the appellant] drove to a friend’s house in [a regional city] which was unoccupied. [The appellant] kissed her on her mouth and, over the next hour or so, engaged in various sexual activities with C. [He] inserted [his] fingers into her vagina, which founds Charge 10, being digital sexual penetration, and licked her vagina, which is the basis of Charge 11, being the commission of an indecent act.
This offending occurred when C was either 14 or 15. [The appellant was] 41.
The next episode of sexual offending occurred between March 2007 and November 2007 at [a regional city]. [The appellant] met C and drove to the side of the road near some blocks of land close to the cemetery. [The appellant] put [his] fingers in her vagina, which is the basis of Charge 13, being sexual penetration of a child, and put [his] mouth on her vagina, which founds Charge 14, being a charge of indecent act.
Charge 15 concerns the sexual penetration of a child under 16 and was the first occasion when [the appellant] had penile/vaginal intercourse with C. On Sunday, 13 May 2007, C snuck out of her home, met [the appellant] by way of pre-arrangement, and [he] drove her to a vacant paddock area where [he] parked. [He] reclined the front passenger seat, had intercourse and ultimately ejaculated into a condom, which [he] then threw out of the car window. [He] got dressed and did not stay much longer. C stated that she felt ‘pretty happy’ but later doubted herself.
At the time, C was 15 and [the appellant was] 41.
On another occasion between May and November 2007, [the appellant] again met C late at night while her mother was sleeping. [He] took C on a drive and then stopped in an area which C described as the ‘middle of nowhere’, where [he] partly reclined the driver’s seat and pulled C on top of [him]. [He] had penile/vaginal intercourse and ejaculated inside her. [He was] not wearing a condom.
That conduct founds Charge 16, being sexual penetration of a child under the age of 16.
At the time of this offence, C was 15 and [the appellant was] 41.
Charges 17, 18 and 19 occurred after [the appellant] met C after she had gone to a party at [a rural town]. After the party, which took place on 14 July 2007, C and some friends walked to a nearby oval. [The appellant] had arranged to meet C and the two of [them] went to the oval grandstand where [he] gave her a love bite on her bare breast, placed [his] fingers in her vagina, and then put [his] penis in her mouth. C gave [him] a ‘head job’ and ultimately [he] ejaculated in her mouth. That conduct founds Charge 17, being an indecent act, Charge 18, being digital penetration, and Charge 19, being an oral penetration.
At the time that [the appellant] offended, C was 15 and [he was] 41.
The relationship [the appellant] had with C was intense. This is reflected by [his] communicating with C some 518 times by phone or text message between March and November 2007. Many of those calls or messages took place in the early hours of the morning after midnight.[1]
[1]DPP v Tones (Unreported, County Court of Victoria, Judge Taft, 17 August 2016) [3]–[21] (‘Sentencing remarks’).
The complainants made statements to the police on 15 November 2007 and the police interviewed the appellant on 19 December 2007. He denied any wrongdoing. This Court was informed by the Crown that, at the conclusion of the interview, the police told the appellant that he may be charged with the offence of sexual penetration of a child under 16 years of age. However, for reasons that are not apparent from the materials before us — but through no fault of the appellant — he was not charged until December 2013.
Appellant’s personal circumstances
The appellant’s parents divorced when he was young and, after moving between his mother and father from the age of around six, he spent much time in children’s homes before his mother took full custody of him when he was 14. The appellant left home when he was 15 years old to work in racehorse stables and to pick fruit. His subsequent working life was characterised by casual employment. At the time of sentencing, the appellant was unemployed.
The appellant married his first wife when he was 18 years of age and they had a son. His wife left him for his father a short time later. For a prolonged period, he abused cannabis and alcohol. He remarried and had two children with his second wife. That marriage lasted five years. After being drug and alcohol free for a period, he again abused those substances and spent eight months in a rehabilitation facility. He has not had any contact with his three children since that time.
The appellant married his third wife in 1997. They had a son in 2006 and remained married at the time of sentencing. The appellant’s wife continues to support him.
On 22 January 1997, the appellant was dealt with by the Magistrates’ Court for charges of assault and criminal damage and was released on a community based order. On 27 May 1998, he was dealt with by the same court for assaulting police and associated offences, and was sentenced to a two month suspended sentence of imprisonment and fined $1,200.
In 1999, the appellant moved to a farm in regional Victoria and, for a period, his life was relatively stable, before his drug use resumed and he was hospitalised for a lengthy period. After the allegations of sexual offending emerged in 2007, he and his wife sold their house and moved to Geelong to live with his mother-in-law.
In April 2010, the appellant presented at a mental health, drug and alcohol service with depressive symptoms. He was prescribed antipsychotic and antidepressant medication. In a report dated 19 November 2010, a psychiatrist diagnosed him with a clear-cut moderate depressive disorder with low mood, anhedonia, lack of volition, poor sleep and anxiety symptoms that, at times, verged on panic. The psychiatrist considered that he was not suffering from any thought disorder, that his mood and affect were depressed but there were no psychotic symptoms and his cognition, judgment and insight were all intact.
In a subsequent report, the psychiatrist concluded that the appellant was suffering from a bipolar disorder and he was prescribed lithium as a mood stabiliser. A subsequent review reported that the appellant’s mood was beginning to lift and he was becoming more motivated. In January 2012, he was discharged from a community follow-up programme after his improved mental health was consolidated over a longer period. At the time of sentencing he continued to take prescribed medication.
Plea hearing and sentencing remarks
The written plea submissions filed on behalf of the appellant identified delay as ‘the main factor in mitigation’ and contended that:
delay in this case requires weight to be given to the progress of the [appellant’s] rehabilitation and his uncertain suspense as punishment itself.[2]
[2]The appellant relied on Dragojlovic v The Queen (2013) 40 VR 71 (‘Dragojlovic’) and R v Merrett, Piggott and Ferrari (2007) 14 VR 392 (‘Merrett’) in this regard.
At the plea hearing, the appellant’s counsel conceded that his offending was serious, that general and specific deterrence were ‘the main sentencing considerations’, and that the appellant had not demonstrated any remorse.[3] Counsel reiterated that the main mitigatory factor was delay and stated that it had weight because of the appellant’s rehabilitation and because the threat of prosecution had been ‘hanging over his head for that length of time’.[4] Counsel confirmed, in response to a question from the judge, that there had been no ‘subsequent sexual offending of any sort’.[5] None of the Verdins principles was said to be applicable.
[3]Transcript of Proceedings, DPP v Tones (County Court of Victoria, CR 15-00876, Judge Taft, 14 June 2016) 6 (‘Plea transcript’).
[4]Plea transcript 8–9.
[5]Plea transcript 14.
The judge said that ‘the manner in which the police investigation of this matter was conducted is mystifying’.[6]
[6]Plea transcript 8.
The prosecutor did not take issue with the defence submissions, but submitted that considerations of punishment and denunciation were also very important sentencing considerations.[7] He described the delay as ‘extraordinary and unjustifiable’ and conceded that it was a relevant mitigatory feature to be taken into account in sentencing the appellant.[8] It was common ground that the appellant was not responsible for any part of the delay.
[7]Plea transcript 15.
[8]Plea transcript 16.
In his sentencing remarks, the judge said that the offending was most serious and that the principles of denunciation and general and specific deterrence were enlivened.[9] The judge referred to the victim impact statements of the complainants and said that it was ‘abundantly clear that the impact of [the] offending upon both victims has been extensive and prolonged’.[10]
[9]Sentencing remarks [37].
[10]Sentencing remarks [27].
Regarding the objective gravity of the offending, his Honour said:
[The appellant] took advantage of two school girls who were aged between 13 and 15 for [his] own sexual gratification. [He was] a mature aged man, more than 25 years older than the complainants. That age disparity is telling. Between 2005 and 2007, [he] sexually exploited those girls without a skerrick of consideration for their age and vulnerability. [He] acted quite brazenly, and in respect of C, repeatedly engaged in sexual activity over an extended period. The harm [he has] inflicted on each of the complainants is considerable and [his] moral culpability is high.[11]
[11]Sentencing remarks [39].
The judge described the appellant as lacking remorse. This was said to be demonstrated by his plea of not guilty and his denial of any wrongdoing, which meant that both complainants were extensively cross-examined.[12]
[12]Sentencing remarks [37].
In relation to what he described as ‘the extraordinary delay’, his Honour said:
Both A and C provided statements to police on 15 November 2007. Those statements contained allegations of serious sexual misconduct on [the appellant’s] part. In turn, [he was] interviewed by police at the … Police Station on 19 December 2007. [He] denied any wrongdoing. For reasons that entirely elude me, [he was] not charged until December 2013.
It is appropriate that police provide proper reasons for that delay which has caused great distress to each of [the appellant’s] victims.
…
[The appellant’s] counsel submitted that this matter has been hanging over [the appellant] for the best part of a decade since [he was] interviewed by police in December 2007. I take that factor into account.[13]
[13]Sentencing remarks [28]–[30], [38].
The judge considered that, although the appellant had a criminal history, it was not relevant to the matters that were the subject of the trial.[14]
[14]Sentencing remarks [38].
With respect to the sentences to be imposed for each charge and cumulation, the judge stated as follows:
For the purposes of Charges 9, 10, 11, 13, 14, 15, 16, 17, 18 and 19, [the appellant falls] to be sentenced as a serious sexual offender as defined by s 6B of the Sentencing Act 1991. However, in the circumstances of this case, it was not contended that protection of the community requires a disproportionate sentence to be imposed for those offences.
In sentencing you, I have had regard to the principle of totality. Further the cumulation ordered in respect of Charge 11 has been moderated because of its temporal connection to Charge 10. Similarly the cumulation imposed on Charge 14 has been moderated because the offending occurred on the same occasion as the offending represented by Charge 13. The same considerations apply to Charges 17 and 18 which occurred on the same occasion as the offending represented by Charge 19.[15]
[15]Sentencing remarks [40]–[41].
The judge sentenced the appellant to 18 months’ imprisonment for each of charges 11 and 14, because he regarded them as ‘more serious examples of the offence of indecent act’.[16] On each of charges 5, 8, 9 and 17, he imposed a sentence of 12 months’ imprisonment. In directing six months cumulation in respect of the sentence imposed for charge 5, the judge noted that A was living in the appellant’s home as a boarder and was in a position of trust.[17]
[16]Sentencing remarks [44].
[17]Sentencing remarks [47].
Parties’ submissions
The appellant submitted that the sentences imposed on him were manifestly excessive, in the light of the objective circumstances of the offending, the delay in his being charged, and the fact that he had no relevant criminal history. In his written submissions, the appellant described the delay as extraordinary and repeated the contention made on the plea, that weight should be given to the progress of his rehabilitation and that the years of uncertainty should be viewed as a form of punishment.[18] According to the appellant, the judge failed to give appropriate weight to the delay, such that the sentence imposed was not within the permissible range.
[18]See [14] above.
In relation to the objective circumstances of the offending, the appellant submitted that his criminality involved a short period of offending. He had no relevant prior convictions. In those circumstances, it was said, the sentence was clearly outside the range of available sentences.
In response to questions from the Bench, the appellant’s counsel clarified that the appellant’s real complaint was directed at the way the reasons for sentence were expressed. Counsel submitted that, since delay was treated by the authorities as a ‘powerful mitigating factor’ and it had been relied on as the main mitigating circumstance, the judge was obliged to deal with all aspects of the delay in his sentencing remarks.
Specifically, counsel pointed out that, although the judge had stated that he took the delay into account, the judge did not explain the extent of the discount, if any, that he allowed due to the delay. Further, counsel submitted, the judge’s sentencing remarks lacked transparency, because they referred to the unfairness aspect of delay — in the sense that the prospect of being charged had hung over the appellant’s head for six years — but did not mention the appellant’s rehabilitation. This was said to be surprising given that, on the plea, the fact that the appellant had not committed any subsequent offence was said to have demonstrated his rehabilitation.
Counsel accepted — correctly, in our view — that the question for the Court on the manifest excess ground was whether the sentences imposed were reasonably open if proper weight was given to the mitigating effect of the delay. To that end, the Bench provided to the parties during argument copies of the helpful sentencing overviews prepared by the Judicial College of Victoria, summarising decisions of this Court on sentences for the two offences the subject of the appeal (‘JCV overviews’).[19] In relation to the offence of sexual penetration of a child under 16 years of age, where the child was not less than 10 years old and the offender had pleaded not guilty, the relevant JCV overview included a number of cases in which this Court has upheld sentences of five years or more on individual charges. In relation to the offence of indecent act with a child under 16 years of age, where that offence was a secondary offence and the offender had pleaded not guilty, the relevant JCV overview included a number of cases in which this Court has upheld sentences of two years or more on individual charges.
[19]Judicial College of Victoria, ‘VSCA overview – sexual penetration under 16 sentences’ (Victorian Sentencing Manual, 30 March 2017) 31.11.5.2; Judicial College of Victoria, ‘VSCA overview – indecent act sentences’ (Victorian Sentencing Manual, 30 March 2017) 31.11.5.3.
Counsel accepted — once again correctly, in our view — that, viewed in the context of the current sentencing practices depicted by the JCV overviews, the individual sentences and the orders for cumulation were moderate. Indeed, counsel frankly conceded that he would not have maintained an argument that the total effective sentence was manifestly excessive if the judge had expressly stated that the sentence was significantly less than the sentence he would have imposed in the absence of delay. Counsel reiterated that, in essence, the appellant’s grievance was directed at the failure of the sentencing remarks to properly explain how the sentencing discretion was exercised in relation to delay. Counsel expressly disavowed any suggestion that the sentence was vitiated by any specific error.
In its written submissions, the Crown contended that the total effective sentence and non-parole period were within the appropriate range and that it could not be said that ‘something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion’ as required by the authorities.[20] According to the Crown, the judge took into consideration all relevant matters, including the delay and the appellant’s lack of relevant prior convictions.
[20]The Crown referred to Clarkson v The Queen (2011) 32 VR 361, 384 [89] and Young v The Queen [2016] VSCA 149 [128].
The Crown referred to the judge’s remarks regarding the delay set out at [21] above and submitted that the length of the delay was clearly of concern to the judge and was appropriately factored into the sentence.
In its oral submissions, the Crown argued that the JCV overviews indicated that a term of imprisonment of five years for the offence of sexual penetration of a child under 16 years of age, and a term of imprisonment of two years for the offence of committing an indecent act with such a child, were well within the range of sentencing options. The Crown referred to the cases of Ashley v The Queen,[21] Smith v The Queen,[22] LQ v The Queen[23] and PCR v The Queen[24] which were said to support this proposition in relation to the sexual penetration offence.[25] The Crown contended that, as the sentences imposed on the appellant were at the lower end of the available range, it could be safely inferred that the judge had significantly discounted those sentences to reflect the delay and the other mitigating circumstances upon which the appellant relied.
[21][2016] VSCA 246.
[22][2013] VSCA 310 (‘Smith’).
[23][2011] VSCA 135 (‘LQ’).
[24](2013) 279 FLR 257.
[25]As in the present case, the maximum penalty applicable in Smith and LQ was 10 years rather than the current maximum of 15 years.
In relation to the appellant’s prior matters, the Crown submitted that the judge, having specifically recognised that they were not relevant, could not be said to have given insufficient weight to that factor.
The Crown submitted that the objective seriousness of the offending was high and referred to the following features of the offending: it occurred over almost three years; it involved two complainants; it comprised a total of six charges of sexual penetration of a child under 16 and six charges of committing an indecent act with such a child; it involved an ‘intense’ relationship between the appellant and C which included the sending of 518 phone or text messages between March and November 2007; and it involved the appellant driving C to remote locations and engaging in sexual activity, on occasion not wearing a condom. The Crown also referred to the harm the offending had inflicted on the complainants — as disclosed by their victim impact statements — and the judge’s finding that the appellant’s culpability was high. The total effective sentence and non-parole period were said to be not disproportionate to the objective circumstances of the offending.
Decision
It is well established that significant delay between the time that an offender is interviewed by police and the time that charges are laid, and delay between the laying of charges and trial, can be a powerful mitigating factor.[26] There are two limbs to delay. The first limb concerns unfairness to the offender, in the sense that the relevant charge — or the prospect of such a charge — was ‘hanging over’ the accused’s head and caused him or her anxiety (‘unfairness limb’).[27] The second limb concerns whether, during the period of the delay, the offender made progress towards rehabilitation and whether there were good prospects of ongoing rehabilitation (‘rehabilitation limb’).[28]
[26]Merrett (2007) 14 VR 392, 400 [35]; R v Cockerell (2001) 126 A Crim R 444, 447 [10] (‘Cockerell’).
[27]Cockerell (2001) 126 A Crim R 444, 447 [10]; Dragojlovic (2013) 40 VR 71, 131 [294].
[28]Cockerell (2001) 126 A Crim R 444, 447 [10].
It was common ground that the delay in the present case was egregious and was thus a relevant mitigating circumstance. The judge was required to take the delay into account in sentencing the appellant, particularly having regard to the concession by the prosecution that the delay had caused unfairness to the appellant. The question raised by the appellant’s argument is whether the other mitigatory limb of delay was enlivened.
Where an offender relies on either limb of delay as a mitigating factor, the offender will be expected — unless there is a concession from the Crown or an intimation that the judge will act on submissions from the Bar table — to adduce some evidence to support them. In this regard, we refer to the following observations in Fox & Freiberg’s Sentencing: State and Federal Law in Victoria:
The courts recognise that the anxiety and uncertainty experienced by a defendant over a long period while his or her fate is undetermined, or indeed by an extraordinarily long trial, is punishment in itself — particularly when the delay is not attributable to the accused but to the prosecution. However, there should be some evidence as to whether the defendant was stressed to a level beyond that which would be expected from being involved in the criminal justice system.
…
If, during the intervening period, an offender has shown evidence of rehabilitation, such as undertaking a sustained period of counselling, the courts will sentence them on the basis of how they present at the time of sentence and not as at the time of the offence. Evidence of rehabilitation will greatly reduce, if not extinguish, the need for special deterrence.[29]
[29]Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 430–1 (citations omitted).
In the case of the unfairness limb, a report by a psychologist may satisfy the evidentiary requirement. There will also be cases where, depending on the duration, cause and other circumstances of the delay, a court may readily accept that the delay caused anxiety to the offender without the need for supporting evidence.
In the present case, no evidence was adduced of the effect of the delay on the appellant. Instead, his counsel asserted from the Bar table that the prospect of being charged hung over the appellant’s head. The prosecutor did not cavil with this assertion. The judge was therefore entitled to take into account the unfairness of the delay in the exercise of the sentencing discretion.
There are two aspects to the rehabilitation limb. The first is whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse. The second is whether the offender has taken steps to reform, including by seeking counselling or other appropriate professional assistance, refraining from committing any further offences and being a valuable member of the community.[30] For example, in R vMerrett, Piggott and Ferrari,[31] this Court held that one of the offenders in that case had made ‘a number of significant changes in his life’.[32]
[30]In Vartzokas v Zanker (1989) 51 SASR 277, 279, King CJ said that ‘[r]ehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen’.
[31](2007) 14 VR 392.
[32]Merrett (2007) 14 VR 392, 402 [43].
Both aspects of rehabilitation — remorse and reformation — must be demonstrated, in order for the court to give full weight to that limb. Less than full weight will be accorded where reliance is placed merely on abstinence from further offending. In this regard, we refer to the following further observations in Fox & Freiberg’s Sentencing: State and Federal Law in Victoria:
It is a matter of some debate whether the absence of offending over the period of the commission of the offence and the sentence, in the absence of evidence of remorse or rehabilitation, is a factor that should be given any or much weight. In Bell v The Queen, Anderson J in the Western Australian Court of Appeal held that delay will only attract a significant discount:
where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence.
Where nothing more than mere lapse of time without any conviction is relied on for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself or herself up and accept his or her just deserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts.[33]
[33]Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 431 (citations omitted).
As to the content of the sentencing reasons, in Rodriguez v Director of Public Prosecutions (Cth),[34] Warren CJ and Redlich JA said:
A sentencing judge need not make separate reference to each of the limbs of delay when stating that delay has been treated as a mitigating factor. However, where the judge refers specifically to one limb and does not refer to the other, the circumstances of the particular case may give rise to a question as to whether the limb not mentioned has received any weight in the sentencing synthesis.[35]
[34](2013) 40 VR 436 (‘Rodriguez’).
[35]Rodriguez (2013) 40 VR 436, 446 [37].
In the present case, no such question arises. Counsel on the plea stated that reliance was placed on rehabilitation but did not identify the basis upon which it should be inferred. It was certainly relevant to ‘reformation’ during the period of delay that the appellant had not committed any offences since the offending for which he was to be sentenced. But, as counsel for the appellant conceded, he was not able to submit that the appellant accepted responsibility for his wrongdoing or was remorseful. Further, counsel did not suggest that the appellant had taken any steps towards rehabilitation during the period of the delay.
While there was evidence that the appellant had not reoffended, the weight to be given to the delay had to be reduced because the appellant had never expressed remorse and there was no evidence that he had taken any steps towards rehabilitation.
Nevertheless, the delay was quite extraordinary and reliance was placed on both limbs. In the circumstances, it would have been preferable had the judge stated explicitly that the delay had informed the exercise of his sentencing discretion in only a limited way because he could not infer that the appellant was rehabilitated. In any event, for reasons already given, the sole issue for this Court is whether the sentences imposed by the judge are manifestly excessive.
In our opinion, the individual sentences are within range. Had it not been for the delay, the circumstances of the appellant’s offending were such as to justify individual sentences of five years’ imprisonment for each offence of sexual penetration of a child under 16 years of age, and two years’ imprisonment for each offence of committing an indecent act with such a child. Given that the judge sentenced the appellant to three years’ imprisonment for each charge for the former offence, and either 12 or 18 months’ imprisonment for each charge for the latter offence, it can safely be inferred that the judge significantly discounted the sentences — and ordered only modest cumulation — due to the delay.
In our view, therefore, the judge not only took into account delay as a mitigating factor, as he said he did, but did so in a manner that was very generous to the appellant. This resulted in individual sentences, orders for cumulation and a total effective sentence which were well within the range of sentencing options available to the judge.
Conclusion
For the above reasons, the appeal will be dismissed.
---
57
10
0