TRG v The Queen
[2011] VSCA 337
•10 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2010 0400
| TRG | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY and WEINBERG JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 18 October 2011 | |
| DATE OF JUDGMENT | 10 November 2011 | |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 337 | 1st Revision: 22 Nov 2011 [18] & [29] |
| JUDGMENT APPEALED FROM | DPP v [TRG] (Unreported, County Court of Victoria, Judge Wood, 1 November 2010 | |
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CRIMINAL LAW − Sentence − Sexual offences against four separate children (13 charges) − Total effective sentence of 11 years and 9 months imprisonment with non-parole period of 7 years and 9 months − Elderly offender − Whether judge erred by not applying Verdins principles with respect to appellant’s depression − Whether sentencing judge erred in finding that appellant’s depression was supervening condition caused by his wife’s ill-health and his then-pending incarceration − Whether judge erred in principle in stating that rehabilitation played subordinate function in sentencing in cases of this kind −Whether sentence manifestly excessive in light of appellant’s age, ill health or absence of further offending, delay and pleas of guilty −Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J R McLoughlin with Mr P Smallwood | Victoria Legal Aid |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I agree with Weinberg JA.
WEINBERG JA:
On 8 October 2010, the appellant pleaded guilty in the County Court at Melbourne to 13 charges involving sexual offending against four separate children.
The offences in question occurred between 1970 and 1978. Three of the four victims, ‘CD’, ‘KD’ (both boys) and ‘MD’ (a girl), were the appellant’s nephews and nieces by marriage, and the fourth victim, ‘AP’, was his daughter.
On 1 November 2010, the appellant was sentenced as follows:
Count Offence Maximum sentence Sentence Cumulation 1 Indecent assault of a male under the age of 16 (prior 1981) (s 68(3A)) 5 years 15 months 2 Attempted buggery 10 years 3 years 1 year 3 Indecent assault of a male under the age of 16 (prior 1981) (s 68(3A)) 5 years 2 years 6 months 4 Indecent assault of a girl under the age of 16 5 years 21 months 5 months 5 Indecent assault of a girl under the age of 16 5 years 21 months 5 months 6 Indecent assault of a male under the age of 16 (prior 1981) 5 years 9 months 7 Indecent assault of a male under the age of 16 5 years 15 months 8 Buggery of a person under 14
20 years 5 years 18 months 9 Indecent assault of a girl under the age of 16 5 years 18 months 10 Indecent assault of a girl under the age of 16 5 years 3 years 1 year 11 Indecent assault of a girl under the age of 16 5 years 21 months 5 months 12 Rape 20 years 5 years 18 months 13 Rape 20 years 5 years Base sentence
The total effective sentence was 11 years and nine months’ imprisonment. A non-parole of seven years and nine months was fixed.
Circumstances surrounding the offending
The circumstances surrounding each charge can be summarised briefly.
Charge 1 – indecent assault on a young boy. In 1970, when CD was aged six and stayed over at the appellant’s home, the appellant put his mouth around CD’s penis and sucked it.
Charge 2 – attempted buggery. In 1973, when CD was nine years of age, the appellant took him for a drive and, after a variety of other sexual conduct, attempted anal penetration.
Charge 3 – indecent assault on a young boy. This was a representative charge, encompassing three separate offences between January 1970 and December 1976. On two occasions, CD performed fellatio upon the appellant, and on one occasion the appellant performed fellatio upon CD.
Charge 4 – indecent assault on a young girl. This charge was representative of two occasions when the appellant made MD perform oral sex upon him.
Charge 5 – indecent assault on a young girl. This charge was representative of one occasion of digital penetration of MD’s vagina and two of the appellant touching her vagina.
Charge 6 – indecent assault on a young boy. Between January 1971 and December 1972, while KD and CD were staying over at the appellant’s home, the appellant exposed himself and had them touch his penis.
Charge 7 – indecent assault on a young boy. In 1973, during the course of a drive, the appellant showed KD pictures of naked females. He took KD to a grassed area and had KD perform fellatio upon him.
Charge 8 – buggery with a person under the age of 14 years. After committing the offence the subject of charge 7, the appellant inserted his penis into KD’s anus.
Charge 9 – indecent assault on a young girl. In 1974, when AP was about four years old, the appellant forced her, on one occasion, to kiss his penis repeatedly.
Charge 10 – indecent assault on a young girl. This was a representative charge encompassing some six occasions when the appellant made AP perform oral sex upon him.
Charge 11 – indecent assault on a young girl. This was a representative charge encompassing two occasions when the appellant digitally penetrated AP’s vagina, and one occasion where he touched her vagina.
Charge 12 – rape. In 1977, the appellant called AP into his bedroom. He lay on top of her and inserted his penis into her vagina. A firearm was leaning against the cupboard door at the time.
Charge 13 – rape. This offence occurred when AP was in grade 3. The appellant inserted his penis into her vagina and held her down with both sides of the pillow over her head. AP thought she was going to die. The appellant struck AP, and threatened her with violence if she told anyone.
The appellant was questioned about these matters in 1980. However, the police concluded that there was insufficient evidence to warrant laying charges at that time. As a result of fresh complaints being made by each victim in 2009, police re-opened their investigation. In June 2009, police re-interviewed the appellant regarding these matters. At that stage, he denied any wrongdoing.
Personal circumstances of the appellant
The appellant was born in July 1947. He was, at the time of sentencing, aged 63.
From 1979 onwards, he had led an apparently blameless life.
The appellant suffered a stroke in 1991, a second stroke in 1994, and a third stroke in 1999. In 2000, he met his second wife through a stroke support group. She had had breast cancer, which was in remission. She was also an insulin-dependent diabetic and had left-side weakness following a stroke of her own. She suffered from depression. She was totally dependent upon the appellant. Without his being able to look after her, she would have to go into care.
There was evidence that the appellant had been a respected member of the Stroke Association of Victoria for a number of years, and that he had always been honest, cooperative, friendly and helpful to other members.
He was said to have treated his second wife very well. His offending was said to be totally out of character.
The judge discussed in considerable detail various medical and psychological reports that related to the appellant’s own condition. One such report, that of Mr Bernard Healey, a clinical psychologist, indicated that the appellant showed symptoms of depression and general and specific anxiety. Mr Healey was of the opinion that the appellant would be unable to cope adequately with a term of imprisonment, having regard to his mental health problems and precarious medical condition. He considered that there was a serious risk that imprisonment would have an adverse effect upon the appellant’s physical and mental health.
With regard to the appellant’s physical condition, there was evidence from a consultant physician and a consultant neurologist to the effect that he suffered ischaemic heart disease of moderate severity, diabetes, hypertension, chronic obstructive airways disease, and the effects of various strokes. The consultant physician expressed the opinion that the appellant’s life expectancy was in the order of five to 10 years. He said that the appellant’s condition was ‘very likely to deteriorate’ over the next five years, especially in terms of heart and renal function. The appellant’s need for Warfarin to prevent further strokes rendered him at high risk of further injury in prison. Moreover, he was said to be very dependent upon his wife.
Another medical practitioner described the appellant as suffering from severe chronic depression, moderate hypertension, high cholesterol, degenerative arthritis (especially in the lower back), chronic Type II diabetes, and sleep apnoea.
Grounds of appeal
The appellant was granted leave to appeal on three grounds which were expressed in the following terms:
Ground 1: The learned sentencing Judge erred by finding that:
a) the applicant’s depression was a supervening condition caused by his wife’s ill-health and his then-pending incarceration; and
b) Verdins principles were not to be taken into account with respect to the applicant’s depression.
Ground 2: The learned sentencing Judge erred by finding that rehabilitation plays a subordinate function to the sentencing principles of general deterrence, protection of the community, denunciation, and specific deterrence.
Ground 3: The ‘total effective sentence’, as constituted by the individual sentences imposed and orders for cumulation, and the non-parole period fixed, were manifestly excessive in light of the delay between the commission of these offences and their prosecution and the applicant’s (i) lack of further offending following the commission of these offences, (ii) age and ill-health, and (iii) pleas of guilty.
In his written case, the appellant re-cast these grounds somewhat, but their gist remained the same.
Ground 2
It is convenient to deal first with ground 2.
The appellant drew attention to a passage in the judge’s sentencing remarks in which his Honour, having referred to various authorities dealing with sentencing of offenders for sexual offences against children, had this to say:
It is clear from these authorities that the principle [sic] sentencing consideration is that of general deterrence, protection of the community, denunciation of your crimes and, to a lesser degree, specific deterrence. Rehabilitation plays a subordinate function to those considerations.[1]
[1]DPP v [TRG] (Unreported, County Court of Victoria, Judge Wood, 1 November 2010) (‘Reasons’), [74].
The appellant submitted that this observation disclosed an error of principle. He pointed to a passage in R v Duncan,[2] a decision of the Western Australian Court of Criminal Appeal, which was in the following terms:
[W]here, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the appellant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.[3]
[2](1983) 9 A Crim R 354, 356-357. Cited with approval in R v Merrett, Piggot and Ferrari [2007] 14 VR 392.
[3]Ibid.
The appellant submitted that, notwithstanding the seriousness of the many offences to which he had pleaded guilty, his clear rehabilitation was not to be rendered a ‘subordinate’ consideration.
In my opinion, the appellant’s argument cannot be accepted. In cases involving sexual offences against children this Court has often said that the primary sentencing considerations are general and specific deterrence, denunciation of the horrific nature of the crime, and protection of the community.[4] That is so even where the offences were committed many years ago.[5]
[4]See, eg, R v Kerbatieh (2005) 155 A Crim R 367, [116]-[119] (Chernov and Nettle JJA).
[5]That is not to suggest that matters of rehabilitation extending over many years should be ignored; R v MWH [2001] VSCA 196.
The sentencing judge was plainly cognisant of the many factors that had to be taken into account in a difficult sentencing exercise, such as the present. His Honour referred to R v RLP[6] and, in particular, to the following passage from the joint judgment of Neave and Redlich JJA and Hollingworth AJA:
[6][2009] VSCA 271.
We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
1.The age and health of an offender are relevant to the exercise of the sentencing discretion.
2.Old age or ill health are not determinative of the quantum of sentence.
3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[7]
[7]Ibid [39] (citations omitted).
The sixth of these propositions is specifically relevant to ground 2, but beyond this his Honour was plainly aware of the importance, in the circumstances of this case, of propositions four and five. That is apparent from a reading of his Honour’s sentencing remarks as a whole.
With regard to the appellant’s rehabilitation, the judge noted that the police had investigated the appellant’s behaviour from about October 1979, when complaints were first made. As a result of that investigation, the appellant had been expelled from the family home. Thereafter, the appellant had not offended again.
When the judge came to set out what he regarded as the essential sentencing considerations in this case, he said this:
A determination on what is just punishment for your offending requires an accommodation of sentencing objectives; namely, general deterrence, denunciation and specific deterrence to a lesser degree, on the one hand, and the mitigatory factors of delay, a plea of guilty, your ill health and reduced life expectancy, on the other. This determination is further complicated because the nature of your offending is, the most abhorrent of a sexual nature that has come before me as a judge of this Court, and certainly more heinous than the circumstances in the cases to which I have referred. But you are in very poor health and notwithstanding the allowance that I have made for the mitigating factors, which I have identified, particularly your reduced life expectancy, there is a real prospect you will never be free.[8]
[8]Reasons, [69].
Having regard to his Honour’s specific reference to these matters, it is difficult to see how it can be said that he either ignored the rehabilitative aspects of the appellant’s life, or failed to take into account or give adequate weight to his physical and mental difficulties. Plainly, these were matters that greatly exercised his Honour’s mind. However, the gravity of the appellant’s offending had to be balanced against these factors.
I am not persuaded that the isolated reference in his Honour’s sentencing remarks to rehabilitation playing a ‘subordinate function’ to considerations of deterrence, denunciation and protection of the community, reflects any error of principle. Nor do I consider that the sentence imposed itself demonstrates any such error.
Ground 1
Turning to ground 1, the appellant referred in that regard to a substantial body of evidence led on the plea to the effect that he was then suffering from a depressive condition. He drew attention to the following passage from his Honour’s sentencing remarks:
The evidence concerning your depression being that of a supervening condition following the discovery of your offending does not call for a reduction in the sentence. The weight of opinion, putting aside Mr Healey’s view, is that your depression is a product of your wife’s ill health but more largely of your acceptance of the inevitable long term of imprisonment which you will be undergoing. Accordingly, Verdins principles do not apply.[9]
[9]Ibid [77].
The appellant submitted that his Honour erred by finding that Verdins[10] had no application to this case, on the basis that the appellant’s depression was a supervening condition brought about by his wife’s ill health, and his own impending incarceration.
[10]R v Verdins (2007) 16 VR 269.
Read literally, it might be thought that there was substance to this complaint. Certainly, the sentencing judge did say that Verdins ‘[did] not apply’, and linked that observation to his comment that the appellant’s depressed condition was brought about by supervening events of a kind which had nothing to do with the actual offending in this case.
If that were an accurate interpretation of his Honour’s sentencing remarks, it would obviously reflect error. Broadly speaking, Verdins has two limbs, each of which is separate and distinct. The first relates to moral culpability. Plainly, that first limb had no application to the circumstances of this case. The second limb, however, relates to the additionally burdensome nature of imprisonment brought about by the physical or mental state of the offender at the time of sentence.
Clearly, the second limb of Verdins was engaged in this case. The evidence as to the appellant’s depressed condition was cogent, and compelling. However, when the judge’s sentencing remarks are read as a whole, it is clear that his Honour both understood that the second limb of Verdins applied, and made due allowance for that fact. Otherwise, a number of his Honour’s references to the decided cases, and to the evidence led as to the appellant’s physical and mental condition and the harm that he would suffer as a result of incarceration, would make no sense.
In my opinion, ground 1 must be rejected.
Ground 3
That takes me to ground 3. In some ways, this ground replicates both grounds 1 and 2. However, unlike those grounds, it does not allege specific error but, rather, manifest excess.
A total effective sentence of 11 years and nine months with a non-parole period of seven years and nine months for a man in poor health, and with a doubtful prognosis could properly be regarded as stern. That is particularly so when one has regard to factors such as delay, and the plea of guilty which was entered at an early stage.
In addition, the appellant was entitled to credit for having not offended in the more than 30 years that had passed since the commission of the last of these offences.
On the other hand, these were truly appalling offences. The victims were all very young children who suffered devastating consequences as a result of what had been done to them. Moreover, the offending involved four separate victims, and in each case there was a very significant breach of trust. The appellant’s abuse of these children encompassed a period of eight years. His offending was aggravated by the threats that he made in an effort to conceal what he had done.
As regards delay, regrettably this is by no means uncommon in cases of this type.[11] General deterrence had to loom large in determining an appropriate sentence for this offending, in spite of the age of these offences.
[11]R v Toomey [2006] VSCA 90, [14].
With regard to rehabilitation, this was specifically acknowledged and taken into account by the judge. So too were the appellant’s age and ill health, and the plea of guilty which, of course, had significant mitigatory value in this case.
It would have been open to the sentencing judge to impose both a lesser total effective sentence, and a lower non-parole period in this case. However, having given this matter anxious consideration, I am unable to say that the sentences imposed, whether individually or cumulatively, fell outside the range of a sound exercise of the sentencing discretion.
I would therefore dismiss this appeal.
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