Wakim v The Queen
[2016] VSCA 301
•30 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2016 0151 | |
| JOSEPH WAKIM | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES: | REDLICH JA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 October 2016 |
| DATE OF JUDGMENT: | 30 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 301 |
| JUDGMENT APPEALED FROM: | [2016] VCC 980 (Judge Chambers) |
---
CRIMINAL LAW – Sentence – Sexual offences – Sexual penetration of child under 16 – Combined sentence of 20 months’ imprisonment and CCO of 2 years’ duration – Offender’s previous good character – Breach of trust an aggravating circumstance – Reduction in mitigatory weight of good character constituted double punishment – Extra-curial punishment – Sentence of imprisonment reduced to 18 months – CCO to NSW – Transfer of Community-Based Sentences (Transfer) Act 2012 – Unpaid community work unable to be transferred – Condition removed – Ryan v The Queen (2001) 206 CLR 267; CMG v The Queen (2013) 46 VR 728; Bishop v The Queen (2013) 39 VR 642; SD v The Queen (2013) 39 VR 487; R v Gent (2005) 162 A Crim R 29 considered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr I D Hill QC | Tony Hargreaves & Partners |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
BEALE AJA:
This is an application for leave to appeal against a combined sentence of 20 months’ imprisonment together with a two year Community Correction Order (‘CCO’). The sentence was imposed following a plea of guilty to one charge of sexually penetrating a child under the age of 16 years.[1]
[1]DPP v Wakim [2016] VCC 980 (‘Reasons’).
The applicant relies upon two grounds of appeal. First, that the sentencing judge erred in diminishing the weight to be given to the applicant’s otherwise good character and extra-curial punishment, and in the finding that those matters did not carry significant weight. Second, that the sentence imposed was manifestly excessive.
For the reasons that follow, we would grant leave to appeal, allow the appeal, reduce the term of imprisonment to 18 months in combination with a two year CCO and remove the condition that required the applicant to perform 300 hours of unpaid community work in Victoria.
Background of the offending
The factual basis upon which the applicant was sentenced is set out in the sentencing judge’s reasons, which adopt all but one aspect of the prosecution opening.[2] At the time of the offending, the applicant was 53 years of age. He lived in New South Wales with his three daughters. His daughters are aged between 17 to 24 years of age, with the youngest currently studying in Year 12.
[2]Ibid [25].
Prior to the offending, the applicant was known for his extensive social work and communal involvement. After completing his Bachelor’s degree in social work at the University of Melbourne, the applicant worked with street children from 1986 to 1988. He founded the Inner City Street Foundation. He worked for some time in the late 1980s at Broadmeadows Community Health Centre, assisting Arabic immigrants. In 1991, he was appointed a Victorian Multicultural Affairs Commissioner. In 1993, he established the Australian Arabic Association. He was involved in the Maronite Church for a long period of time, participating on committees and advisory councils. In 2001, he received an Order of Australia Medal. From 2012 until his indictment, he had been a member of the New South Wales Police Multicultural Advisory Council.
The complainant and his family live in Melbourne. At the time of the offending, he was 13 years of age. The applicant had been a distant acquaintance of the complainant’s mother from many years ago through a mutual association with the Maronite Church, but they had lost contact.
On 28 December 2014, while attending a First Communion function of mutual friends in Melbourne, the applicant met the complainant, his parents and his three younger brothers. At the end of the evening, he sent a text message to the complainant’s mother expressing his pleasure at meeting again and looking forward to catching up with the family soon. He sent a text message the next day trying to arrange a time to meet. Soon after, the applicant was invited to the family’s home for lunch. He spent time in the pool with the children. He visited the family again before returning to New South Wales. During the visit, he constantly interacted with the children, and they found his company enjoyable.
After returning to New South Wales, the applicant continued his relationship with the family through phone calls and emails. The sentencing judge found that the applicant became a significant presence in the life of the family over the course of the following months.[3]
[3]Ibid [7].
Sometime in the middle of January 2015, the applicant sent a text to the complainant’s mother to let her know that he would be in Melbourne for a work trip and asked to visit the family. He visited them once or twice during that trip.
In February 2015, when the applicant visited Melbourne for his nephew’s 21st birthday, he encouraged the complainant’s parents to stay out overnight and volunteered to look after the boys. The complainant’s parents knew that the applicant was highly regarded within their community, and was a respected church member. They said they were encouraged by these ‘credentials’ to agree to the arrangement. The applicant took the children out to dinner and spent the next day with them at the Boathouse in Fairfield. At the end of the visit, he contacted the parents to thank them for trusting him with their sons. He said that he loved them, that they were beautiful children and that he looked forward to more engagements with them.
In February and March 2015, the applicant sent the complainant and his younger brother balloons and cards for their birthdays. In April 2015, he stayed with the family for a number of days. He did so on two further occasions in June 2015, the complainant’s mother paying for his airfare on one of those visits because the children wanted to see him. When the complainant, along with his brothers and his family, flew to Germany for four weeks in June 2015, the applicant remained in constant contact with him, speaking to him via ‘Facetime’ on his iPad and emailing him.
From mid-2015, the applicant became aware that the complainant was vulnerable, as he was being bullied at school. The sentencing judge found that the complainant viewed the applicant as a father figure who cared for him and because of that close and trusted relationship, the complainant confided in the applicant and sought his advice.[4]
[4]Reasons [13].
In September 2015, the applicant invited the complainant to assist with student talks that the applicant was presenting at high schools in Melbourne. The applicant’s youngest daughter and the complainant acted as his ‘helpers’ that evening. The applicant arranged for the complainant to sleep over at his mother’s house, where he was staying in Melbourne, so as to co-ordinate that assistance.
In November 2015, the applicant visited the family over the Melbourne Cup weekend. He bought gifts for the children and the parents. When the complainant’s parents went out for dinner, he stayed with the children at home. On that evening, following the parents’ return, he massaged the complainant’s leg, hands, head and the back of his neck. The complainant’s mother was in the room. He had on previous occasions massaged the complainant’s head, shoulders and back and the complainant would ask for a massage every time the applicant visited. The applicant told the complainant’s mother that he had done a massage course.
After the Melbourne Cup weekend, the applicant suggested that the complainant visit him in New South Wales for a weekend. Before the complainant flew to Sydney, the applicant told the complainant’s mother that he had a list of things to discuss with the complainant.
Over that weekend the applicant focused attention on him, giving him presents, pancakes and ice-cream. As the applicant knew that the complainant liked to fly and wanted to become a pilot, he arranged for him to visit an indoor sky diving centre. He fostered further intimacy with the complainant by continuing to give him massages and sleeping in the same bed. While driving in the car, the applicant took the complainant’s hand and repeatedly kissed it, saying words to the effect, ‘you know how much I love you. Do you know how much?’ The complainant told the applicant to stop kissing him.
On 25 December 2015, the day of the offending, the applicant was in Melbourne. He sent a text message to the complainant’s mother at 3:00 pm asking if he could visit the family home for a swim and see the children. He arrived at approximately 5:00 pm and spent a number of hours with the complainant and his brothers. He took the children to see the Christmas lights and returned with them at 11:00 pm. When, at one stage, the complainant became upset, the applicant massaged his shoulder and neck. When the complainant was put to bed by his mother that night, sometime after 11:00 pm, the applicant took the complainant’s water bottle from his mother and followed the complainant into his bedroom. He told the complainant’s mother, ‘I’m going to have a chat with this young man, by the look of it he needs a massage’.
The applicant massaged the complainant’s back for 45 minutes while the complainant lay on his bed. He then asked the complainant to turn over. He continued to massage him in a circular motion and pulled his underwear down, touching his penis. He then placed his mouth over the complainant’s penis. The complainant tried to roll over a few times to get away from him. The applicant repeatedly placed his mouth over the complainant’s penis, sucking on it until the complainant ejaculated.
The applicant left the room immediately after the offending. He met the complainant’s mother at the top of the stairs. She was coming to check whether the applicant had also fallen asleep. She asked him if he would like to stay the night, given how late it was, but he declined the offer and left. The complainant was distressed and disclosed the offending to his mother, telling her to call the police.
On the morning of 26 December 2015, the applicant contacted the complainant by email. The email stated:
On Christmas day, I watched another miracle. You slipped into a dark hole, worked out what is happening on your INSIDE, then breathed it all OUTSIDE.
Those moments will happen again. Breathe in the oxygen of Jesus, and then breathe out the carbon to feel lighter. Watch the carbon float away like those balloons in the sky.
You are the beloved son of three fathers. Your iPad is your hotline to me. Your rosary is your hotline to God. And your voice is your hotline to your papa.
There is SO much I would like to share with you — the caterpillar emerging from the cocoon and shining as a glorious butterFLY.
I will teach you some music and definitely conquer your maths. Enter your story in a competition. I will arrange a sleepover and hopefully take you to the waves soon.
Please send me your messages or phone me — your name on my phone always brings a smile.
Big hug and lots of love.
After the complainant’s mother consulted with her family and her church, she reported the matter to police on 27 December 2015.
The applicant spoke to the complainant’s mother on 28 December 2015 in a pretext call, in which he admitted the offending and expressed remorse for his conduct. During this conversation, the applicant told the complainant’s mother that on the day prior to the sexual assault, the complainant had been ‘feeling really down’ and had confided in the applicant that he was having suicidal thoughts.
The police interviewed the applicant in the afternoon of 28 December 2015. The applicant admitted touching the complainant’s ‘genital’ and placing the complainant’s penis in his mouth. He described feeling disgusted by his conduct.
The applicant was dismissed from his employment as the national sales and marketing manager of a logistics company after 17 years of service. He resigned from the New South Wales Multicultural Advisory Council. He also wrote to the Australian Governor-General, disclosing his offending and offering to resign as a member of the Order of Australia. His resignation was accepted and published in the Commonwealth Gazette, and he was obligated to return his insignia. He resigned from his role as a Justice of the Peace. The applicant’s case attracted significant adverse attention in the media.
Parties’ submissions
Under ground 1, the applicant submits that, contrary to authority,[5] the sentencing judge had erred by punishing the offender twice in effect for his breach of trust, by relying first upon his breach of trust as a circumstance of aggravation and, second, by considerably diminishing the mitigatory weight to be attached to his good character and the extra-curial punishment he had suffered as a consequence of his breach of trust.
[5]Ryan v The Queen (2001) 206 CLR 267; SD v The Queen (2013) 39 VR 487.
In oral submissions, the Crown conceded that the sentencing judge had erred in diminishing the weight to be given to the applicant’s good character and extra-curial punishment because of his breach of trust. It maintained, however, that leave to appeal should be refused because there was no reasonable prospect that this Court would impose a less severe sentence than that originally imposed.
Under ground 2, the applicant submits that, while acknowledging the seriousness of the offending, there were unusually powerful factors in mitigation. He contends that the offending was isolated, opportunistic and spontaneous, as no charge of grooming had been laid against him. He relies in mitigation upon his plea of guilty at the earliest opportunity, the remorse he expressed at an early stage, his previous good character, the extra-curial punishment he had suffered and his very good prospects of rehabilitation.
The Crown submits that the gravity of the offending warranted the sentence imposed by the sentencing judge. It relies upon a number of aggravating features of the offending, such as the applicant’s considerable breach of trust, the complainant’s vulnerability, the offence’s impact on the complainant and his family, and the age disparity between the applicant and the complainant. It also relies upon the fact that the offending occurred at the complainant’s home at Christmas. It seeks to qualify the weight to be attached to the extra-curial punishment suffered by the applicant, as the number of character references the applicant was able to produce is said to attest to the support from the community he continues to enjoy.
Ground 1: insignificant weight given to applicant’s good character and extra-curial punishment
In her sentencing remarks, the judge regarded the applicant’s betrayal of the complainant’s trust as a significant aggravating feature of the offending. She noted that ‘the close relationship [the applicant] had fostered with the complainant meant that [he was] fully aware of his emotional vulnerability, the bullying and suicidal thoughts’ the complainant had experienced. She found that the complainant’s parents had acutely suffered from the same sense of betrayal.[6]
[6]Reasons [27].
Having found the applicant had committed an ‘egregious betrayal of … trust’,[7] her Honour turned to the factors in mitigation. The judge examined the weight to be placed upon the applicant’s previous good character and the extra-curial punishment he had suffered by virtue of his loss of employment, resignation from significant public posts and adverse media coverage. In the passages of her reasons now impugned by the applicant, she said:
Presumably due to [the applicant’s] status and background, [his] offending has also attracted significant media attention. I have considered the various articles published in local and other media tendered in [his] plea. There is undoubtedly a factor of public humiliation associated with these articles that not all offenders face. I note however, that the publication of this material has also had a detrimental impact on the victim and his family, as outlined in the victim impact statements, in circumstances where the articles have prompted inquiries from friends and associates who knew of [the applicant’s] relationship with the family and were able to put ‘one and one together’. This has also caused them significant distress.
As with [the applicant’s] previous good character, these matters are relevant to sentence but in cases such as the present, do not carry significant weight. [The applicant’s] reputation and standing in the community was integral to the deep relationship of trust [he was] able to develop with the victim and his family. This is reflected in the prosecution opening. When the victim’s family first agreed to [the applicant’s] offer to babysit the children overnight, they did so as they ‘knew [he] was highly regarded within their community, believed the church respected [him] and in looking at all [his] “credentials” thought this would be okay’. In circumstances where [his] good character and reputation facilitated the offending, these factors carry less weight in mitigation of sentence.[8]
[7]Ibid.
[8]Ibid [53]–[54] (emphasis added).
In Ryan v The Queen,[9] a priest pleaded guilty to 14 charges of sexual offences against 12 male complainants ranging in age from six to 14 years and made admissions of further offending. The sentencing judge found that the evidence submitted in mitigation as to the offender’s unblemished character and reputation was ‘something to be expected of a priest’ and concluded that it ‘does not entitle him to any leniency whatsoever’.[10] The issue arose before the High Court as to whether the sentencing judge was correct to give no leniency for good character. A majority of the High Court decided that the accused was entitled to some, though not significant, leniency for his otherwise good character and that the sentencing judge had misapplied relevant sentencing principle.
[9](2001) 206 CLR 267 (‘Ryan’).
[10]Ibid 268.
McHugh J relevantly said:
First, there were multiple offences involving repeated acts committed over a number of years. They were not isolated incidents which might be said to be out of character. Secondly, the appellant was, as his counsel conceded before Judge Nield, leading a double life. Over many years, the appellant was doing ‘good works’ while he was committing grave offences. This contradiction indicates that the appellant’s otherwise good character was a minor factor to be weighed. Thirdly, the appellant committed the offences in the course of his priestly duties and it was as a priest that he did the ‘good works’ which are at the heart of his claim of good character. This reduces the weight that ought to be given to his otherwise good character. Fourthly, and related to the third point, the offences involved breaches of trust.
…
In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.[11]
[11]Ibid 278–9 [34]–[36] (citations omitted)
Similarly, Kirby J found that the sentencing judge approached the matter by viewing the appellant in a one-dimensional light. He cautioned:
It is important to distinguish the use of evidence of good character during a contested trial as a matter, when available, relevant to the determination of whether or not the accused is guilty of the offence and the use of evidence of character tendered at the sentencing stage. The latter is received to show that, although the offender has been convicted, he or she has nonetheless done
things and earned a reputation that redounds to the offender's credit when the imposition of a criminal sentence is under consideration.[12]
[12]Ibid 297 [101] (citations omitted).
Callinan J said, of the relevance of the offender’s good character:
It is well settled that whilst bad character will not operate to increase a sentence, good character may operate to reduce the sentence which the facts of the crime would otherwise attract. In some cases good character has even been held to be so significant a factor as to require the imposition of a non-custodial penalty in lieu of a term of imprisonment. In exercising a sentencing discretion, less weight has been given to previous good character in circumstances in which the offence is not an isolated act. When the crime or crimes are part of a prolonged course of criminal activity, less weight will usually be given to the apparent good character and record of an accused.[13]
[13]Ibid 317 [174].
Ryan has been followed by this Court on a number of occasions. In SD v The Queen,[14] a case analogous to the present, the sentencing judge, having had regard to the appellant’s breach of trust in the course of committing two charges of an indecent act with a child under the age of 16 years, observed that it was, in part, the appellant’s good character which had permitted him access to the complainant. She concluded that good character exploited in order to commit the offences did not weigh as heavily in an offender’s favour as it would otherwise. This Court (Ashley, Redlich and Priest JJA) concluded that the sentencing judge had erred in that respect:
It is one thing to describe the offending as a breach of trust — so much cannot be gainsaid — but it is another thing to diminish the weight to be attributed to good character which a person is otherwise possessed of at the time when an offence is committed. If a person is otherwise of good character, he or she is entitled to have that taken into account at the time of sentencing. …
As is made clear in Ryan, a sentencing judge is always bound to consider the ‘otherwise good character’ of the person to be sentenced. In so doing the judge does not take into account the offences for which he or she is being sentenced. If a person is of good character that fact must always be taken into account. However, the weight to be given to a person’s good character will vary according to the particular circumstances of the case. In contrast to the present case, in Ryan the offences were not isolated, since there were multiple offences over a number of years; and the offences were a breach of trust committed by the prisoner in the context of his role as a priest.
In our opinion, the sentencing judge erred in diminishing the weight to be given to the appellant’s otherwise good character, and in finding that the appellant somehow exploited his good character in order to commit the offences. We agree with the submission of counsel for the appellant that her Honour’s approach had the effect of punishing her client twice for the breach of trust — first by identifying that breach as an adverse sentencing consideration, and second by using it, inappropriately in the circumstances, to diminish the appellant’s otherwise good character.[15]
[14](2013) 39 VR 487 (‘SD’).
[15]Ibid [26], [30]–[31] (citations omitted).
In CMG v The Queen,[16] the judge below had sentenced the offender on the basis that, while the fact that the offender was ‘an otherwise respectable person, with an excellent work history and no other prior criminal history’ would ordinarily have a ‘strong mitigatory effect’, it was not to be so viewed ‘when sentencing is imposed for sexual abuse of children’.[17] The judge had referred elsewhere in her sentencing remarks to the gross breach of trust and exploitation of the position occupied by the offender in the commission of the offences. Redlich JA (with whom Warren CJ relevantly agreed) said that the remarks made in SD were apposite and quoted the passages from SD set out above with approval.[18]
[16](2013) 46 VR 728.
[17]Ibid 736–7 [34].
[18]Ibid 760–1 [141].
In Bishop v The Queen,[19] Redlich JA (with whom Coghlan JA agreed) said:
In the quite different setting of sentencing where the offence involving sexual abuse of children has been admitted or proved, it is common that a judge will draw attention to the aggravating feature that the offences were committed by a previously trustworthy person of integrity in private and away from the scrutiny of others. But very recent decisions of this court make clear that the fact that such offences are usually committed within the home and in private by a trusted family member or friend does not permit the sentencing judge to give less mitigatory weight to the previous good character of the offender than would otherwise be the case. As McHugh J observed in Ryan v R, a sentencing judge is always bound to consider the ‘otherwise good character’ of the person to be sentenced.[20]
[19](2013) 39 VR 642.
[20]Ibid 645–6 [11] (citations omitted).
There are categories of offending in which it is accepted that good character may be given less than its full mitigatory weight. In the New South Wales case of R v Gent,[21] Johnson J identified a number of such categories, including offending by drug couriers, ‘white collar’ crimes, and culpable driving. The approach taken in these categories of case is not easily reconciled with the present category of case. In Gent, when determining whether offences involving the importation of child pornography constituted one such exceptional category, Johnson J was of the view that the basis for recognising an exception to the general rule was dependent on the character of the offence committed and the class of the offence.[22] His Honour referred to the New South Wales case of R v Kennedy,[23] in which Howie J (Simpson J agreeing) said:
It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.
Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant.[24]
[21](2005) 162 A Crim R 29 (‘Gent’).
[22]Ibid 41 [51], 42 [55].
[23][2000] NSWCCA 527.
[24]Ibid [21]–[22], quoted in Gent (2005) 162 A Crim R 29, 41 [52].
Johnson J observed that in Ryan the finding by McHugh J that the offender’s previous good character was of only some significance in sentencing was informed by the repeated acts of sexual assault committed against children.
Johnson J concluded that child pornography importation offences were a suitable category for diminishing the weight ordinarily given to previous good character because of the prevalence of that characteristic in those who commit such an offence, the need to give paramount consideration to the principle of general deterrence, and that ‘the offence is, in a sense, committed in secret’.[25]
[25](2005) 162 A Crim R 29, 44 [64].
During oral argument the parties were asked to identify the rationale for the distinction which the applicant contended should be made between the cases falling into the categories of exceptions to the general rule and the circumstances of the present case. The applicant contended that more limited weight will only be attached to good character in circumstances in which the offender has committed multiple offences over a long period such that the offending could not be said to be out of character, and where the offender had escaped detection in part because of the trust engendered by his good character.
As this was not a case involving the commission of multiple offences, the respondent conceded that the judge erred in giving less weight to the applicant’s good character. The applicant also submits that, having found that the applicant had breached the trust that had been reposed him, the sentencing judge erred in law[26] by stating that the applicant’s previous good character and extra-curial punishment carried ‘less weight in mitigation’ because his good character enabled him to secure the family’s trust and had facilitated the offending.
[26]House v The King (1936) 55 CLR 499, 505; R v Taylor [1958] VR 285, 289.
In cases concerning sexual offences against children, an offender is ordinarily entitled to have his sentence reduced by virtue of his previous good character. The weight to be given to that mitigating feature will depend on the circumstances of any given case. The sentencing discretion will miscarry if the weight to be given to a mitigating factor such as previous good character is discounted on the basis of features of the offending which have already been taken into account in aggravation of the penalty to be imposed. Such reasoning effectively doubly punishes an offender. An offender who commits an isolated sexual offence involving a child is not to be doubly punished by a court treating their breach of trust as an aggravating circumstance whilst also diminishing the mitigatory weight to be given to previous good character. We are of the opinion that in this respect the sentencing judge committed an error in her reasoning. As we would impose a less severe combined sentence, in two material respects, the sentencing discretion must be re-opened.
Although the ground of appeal included a complaint that the applicant’s extra-curial punishment was given insufficient weight, the focus of the oral argument concerned the diminution in the weight given to the applicant’s previous good character. That error having been established and the sentencing discretion re-opened, it is unnecessary to further consider whether there was any error in the judge’s approach to extra-curial punishment.
Ground 1 is made out.
Ground 2: manifest excess
In view of the conclusion reached on ground 1, namely, that a sentencing error has been established, and the sentencing discretion re-opened, it is unnecessary to determine whether the sentence fell wholly outside the range of sentencing options reasonably available to the sentencing judge.
We note in passing, however, that the sentencing judge was not provided with much in the way of assistance as to the available range of sentencing options. The absence of such cases is in part explained by the unreported nature of many sentences imposed for such offending in the County Court.
On this application, the applicant relied on sentencing statistics for the offence of sexual penetration of a child aged between 10/12 to 16 between the years 2010 to 2015. Bearing in mind the known limitations of sentencing statistics,[27] the statistics relied on by the applicant indicate that a sentence of imprisonment is the primary sentencing disposition in only a little over 50 per cent of such cases. The applicant pressed as the basis for a diminution of his own sentence that in a significant proportion of cases, no custodial sentence had been imposed. As the respondent contends, these sentencing statistics are likely to capture sentences imposed for historical offences, which involve differing maximum penalties to that applicable here. That a significant proportion of sentences are non-custodial in nature is also partly explicable by the fact that non-custodial sentencing dispositions are not uncommon for offences towards the lower end of the spectrum of objective seriousness, involving young male offenders found guilty of sexual assault against a girl immediately below the age of consent. No useful comparison can be made between such cases and the present one given the pronounced age disparity between the applicant and the complainant, and the other features found to augment the gravity of this offence. Accordingly figures drawn from such a source are incapable of providing guidance as to the available sentencing range.
[27]Nam Son Nguyen v The Queen [2016] VSCA 198 [83].
The respondent seeks to rely upon three cases said to be somewhat comparable, namely, R v Lane,[28] R v Bradey,[29] and O’Brien (a pseudonym) v The Queen.[30] We are not much assisted by these cases. As the applicant submits, both Bradey and O’Brien concern the offence of sexual penetration of a child in the care or custody of the offender, which is a more serious offence carrying a maximum penalty of 15 years’ imprisonment. It is also difficult to draw a comparison between Lane and the present case as the appellant in that case faced two charges on the indictment.
[28](2007) 176 A Crim R 471 (‘Lane’).
[29][2009] VSCA 169 (‘Bradey’).
[30][2014] VSCA 94 (‘O’Brien’).
Re-sentencing exercise
The respondent accepted that if an error in sentence was established and the sentencing discretion was re-opened, a sentence of a term of imprisonment combined with a CCO remained an appropriate sentence. The applicant submitted that, applying the principle of parsimony under s 5(4)(c) of the Sentencing Act 1991, the appropriate sentencing disposition in his case was a CCO, with no term of imprisonment. Alternatively, a shorter term of imprisonment, combined with a CCO with treatment and rehabilitative conditions, was within the available range. He submitted that the condition attached to his CCO requiring him to complete 300 hours of unpaid community work was excessively punitive given that he would be required to serve that component in Victoria, while his daughters live in New South Wales.
Turning to the relevant sentencing considerations, there is no doubt that this was offending of a grave nature, meriting condemnation and denunciation. The maximum penalty for the offence of sexual penetration of a child aged under 16 is 10 years’ imprisonment. The maximum penalty reflects the seriousness with which the community and the legislature look upon offences of this kind.[31] It is well recognised that premature sexual activity is presumed to cause long term and serious harm of both a physical and psychological kind, justifying the absolute prohibition on underage sexual activity.[32]
[31]Markarian v The Queen (2005) 228 CLR 357.
[32]Clarkson v The Queen (2011) 32 VR 361.
While the applicant’s offending may have been isolated, opportunistic and the product of a loss of self-control, it took place in the context of an extremely close relationship formed over the course of more than a year between the applicant and the complainant and his family. The complainant came to regard the applicant as a surrogate father. He confided in the applicant more readily than in his parents in some respects; it was to the applicant that he first disclosed the suicidal thoughts he had experienced and the full extent of his emotional vulnerability as a victim of bullying. The applicant’s behaviour was an abhorrent betrayal of the trust reposed in him by the complainant and his family. In his victim impact statement, the complainant spoke eloquently of his feelings of betrayal and the anger, confusion and frustration he had consequently endured. He noted a consequence of the sexual abuse was that he had distanced himself further from his friends and peers. The complainant’s parents also experienced significant harm. They experienced guilt in having been unable to protect their child from the offending and its continuing psychological impact on him.
On the plea, some significance was attached to the fact that the complainant suffered unduly because of the inadequate standard of media reporting in this case, enabling him and his family to be identified. It is necessary to make some comments in passing on that point. Ordinarily, in sentencing, the court proceeds on the assumption that the inevitable reporting by a child complainant of sexual misconduct, involves disclosure within the complainant’s immediate social circle. The unusually high public profile of the applicant resulted in extensive adverse media coverage of his conviction and sentence. The coverage led to the complainant and his family being identified more widely. The deleterious effect of such publicity is most unfortunate, but it is not a relevant sentencing consideration as it did not occur through any fault of the applicant.[33]
[33]SD (2013) 39 VR 487, 490–1 [17]; Berichon v The Queen (2013) 40 VR 490, 508–9 [112].
In mitigation of the applicant’s offending, the applicant’s plea of guilty at the earliest opportunity, prior to his committal hearing, has saved the complainant and his family the burden of giving evidence. It has also saved the community the time and expense of a trial. His plea constitutes some evidence of his remorse and recognition of his responsibility for the offending.
As to the applicant’s risk of reoffending, the applicant, of his own volition, had sought counselling, psychotherapy and psychological treatment after his offending. In a report dated 3 June 2016, Andrew McClymont, a psychotherapist who had seen the applicant on four occasions and conducted other telephone sessions with him, said that the applicant was ‘remarkably candid’ about his offending, experienced feelings of guilt, shame, remorse, disgust and disbelief, and presented with acute trauma with suicidal ideation. He provided treatment to stabilise the applicant’s emotional state. In a report dated 5 June 2016, Dr Marcelo Rodriguez, a psychologist who had interviewed the applicant on two occasions, shared the opinion that the applicant carried feelings of guilt and shame for his conduct and the impact it had on the complainant and his family, and felt confused by his actions. He recommended ongoing psychological treatment, focused on developing insight into the offence and relapse prevention. He was unable to assess the applicant’s need for sexual offender treatment, having only seen the applicant twice.
For the purpose of the plea, the applicant was assessed on 20 May 2016 by Dr Danny Sullivan, a consultant forensic psychiatrist. He was found to have no relevant mental or sexual disorder. His offending was attributed to an ‘intrusive, intense and inappropriate’ enmeshing of his life with that of the complainant and the complainant’s family, to a degree that he had never previously done. Dr Sullivan found that the applicant had shown insight retrospectively into his overstepping of appropriate boundaries and his over-identification with the complainant and that he had acknowledged that this was on some level connected with the offence.
Dr Sullivan recommended that the applicant should be assessed for standard sexual offending treatment as an element of any sentencing disposition and viewed the applicant’s motivation to engage in psychological treatment positively. He shared Mr McClymont’s opinion that the applicant was strikingly candid, and found that the applicant, even as a protected prisoner, would have difficulty adapting to incarceration and acting in ways which would not result in him being targeted by other prisoners. We rely significantly on Dr Sullivan’s findings in concluding that the applicant will struggle more than an ordinary prisoner in imprisonment and that his prospects of rehabilitation are very positive.
In all of the psychological reports tendered on the plea, reference was made to the applicant’s alleged history of sexual abuse as a child. This history was corroborated by a statement of Mona Taouk, a family friend to whom the applicant had disclosed the incident in April 2013, prior to the offending. No causal link between the applicant’s alleged victimisation and his offending was substantiated, as defence counsel conceded on the plea. As the sentencing judge did, we take into account this feature of the applicant’s past as a relevant background circumstance.
The defence conceded on the plea that, if a term of imprisonment was imposed in combination with a non-custodial sentence, the applicant’s daughters would be able to support themselves with the assistance of other family members while he completed that portion of his sentence in gaol.
On the plea, and further on this application, it was made clear that the Community-Based Sentences (Transfer) Act 2012 and the Crimes (Interstate Transfer of Community Based Sentences) Act 2004 (NSW) provide a regime enabling the applicant to have a CCO registered, and to serve that component of any combined sentence, in New South Wales. However, because of a legislative oversight, for which no sound policy reasons were advanced, an offender is unable to transfer their CCO to New South Wales until they have completed any hours of unpaid community work required to be performed as a condition of the CCO. This increases the punitive element of a CCO as a sentencing disposition in cases in which an offender resides outside of Victoria. The applicant pressed the court to remove that onerous requirement.
We would re-sentence the applicant to a total effective sentence of 18 months’ imprisonment, followed by a CCO of two years’ duration with the conditions that the applicant remain under the supervision of a community corrections officer, undergo any mental health assessment and treatment as directed, and undergo assessment, as directed, for programs or courses aimed at reducing the risk of further offending, in particular assessment and participation in the Sex Offender Assessment and Treatment Service. The mandatory conditions which attach to a CCO under s 45 of the Sentencing Act 1991 apply. We would however impose no requirement that the applicant perform unpaid community work, as that condition cannot be transferred to New South Wales.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, had the applicant not pleaded guilty to the offence, we would have sentenced him to three years’ imprisonment, with a non-parole period of one year and eight months.
- - -
37
13
0