WC v The Queen
[2012] VSCA 30
•24 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0918
| WC | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 February 2012 |
| DATE OF JUDGMENT | 24 February 2012 |
| MEDIA NEUTRAL CITATION | [2012] VSCA 30 |
| JUDGMENT APPEALED FROM | DPP v [WC] (Unreported, County Court of Victoria, Judge Lacava, 1 August 2011) |
CRIMINAL LAW – Sentence – Delay as mitigating circumstance – Sexual offences – Incest – Three complainants – Appeal allowed – Re-sentenced to 12 years’ imprisonment with non-parole period of 8 years and six months – No point of principle
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms G Connelly | Victoria Legal Aid |
| For the Respondent: | Mr M Roper | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
WEINBERG JA:
On this renewed application for leave, it is unnecessary to refer to the facts. These are fully set out in the sentencing remarks, and in the reasons of Nettle JA refusing leave to appeal. It suffices to say that the applicant pleaded guilty to each count on a 15 count indictment concerning sexual offences committed against his three daughters over a 12 year period, when his daughters were between the ages of five and 17. The counts included two counts of incest. They were both serious examples of digital penetration and were representative counts.
The individual sentences, orders for cumulation, total effective sentence and non-parole period are, in our view, plainly within a sound exercise of the sentencing discretion, though the total effective sentence is towards the upper end of the range available having regard to various circumstances in mitigation. Accordingly, we do not consider Ground 2, which asserts that the sentences are manifestly excessive, to be reasonably arguable.
Under cover of Ground 1 it is said that the sentencing judge did not accord sufficient weight to the delay between the disclosure of offending in 2001 and the laying of charges in 2010.
In March 2001 the applicant had attended the Bendigo police station accompanied by his wife and one of his daughters. The police were informed that the applicant wished to confess to an assault on another of his daughters who was not present. He then informed police that he had inappropriately touched that daughter. Upon the daughter being contacted by police she confirmed she had been assaulted some 11 years previously but did not wish to take police action and made a no complaint statement.
In August of that year, another daughter attended the Bendigo police station and made a statement disclosing that she had been sexually abused over a period of time by the applicant. She did not at that stage wish police to proceed with the investigation.
At about that time, at the insistence of the applicant’s sister, he attended a number of counselling sessions. No charges were laid against the applicant at this time. He and his wife and youngest son then moved interstate.
It was not until 2010 that all three complainants made detailed statements to the police following which the applicant was arrested and interviewed and made full admissions in relation to two of his daughters.
The sentencing judge found that any reduction in sentence on account of the delay between 2001 and 2010 should only be minimal. His Honour found that it was the applicant’s offending that was the cause of the delay because his victims’ reluctance to come forward in these circumstances was one of the direct consequences of the offending. His Honour observed that
Victims of this kind of offending are often torn between a need to reveal the offending to get justice and the effects that seeking justice will have on the family as a whole.
In the applicant’s written outline it was submitted that his Honour was in error in characterising the delay in the laying of the charges as being the fault of the applicant. As did Nettle JA, we consider that the material before the sentencing judge justified the conclusion that the reason for the delay was the reluctance of the victims to come forward and complain. The fact that the focus on the plea, before Nettle JA and then before us, was upon whether the delay was properly to be attributed to the applicant, diverted attention from the fact that the applicant had the real prospect of prosecution hanging over his head for the entire period between 2001 and 2010. The Crown, rightly in our view, did not suggest that because charges were not laid until 2010, that the delay could not be taken into account.
Delay, however caused, must be considered.[1] While it cannot be said that there has been any undue delay by the prosecution in bringing the proceedings, the applicant had been to a very large extent co-operative with investigators from the outset and was willing to bring matters to a head. Hence both the sentencing judge and Nettle JA did not doubt that there was a relevant delay.
[1]R v Merrett [2007] VSCA 1 [35]
Delay before the charges are determined is generally relevant in two ways. First, in considering the extent of an accused’s rehabilitation since the disclosure of the offending and prior to sentence. Second, fairness required that account be taken of the fact that an offender has had the prospect of punishment hanging over his head during that delay.
His Honour clearly addressed the first of these considerations, finding that though the applicant had not re-offended and had made a new life interstate, his prospects of rehabilitation remained guarded, there being a moderate chance of re-offending, presumably because of the diagnosis of paedophilia.
As to the second consideration, the period of ten years was a very substantial one during which the applicant had the prospect of these matters hanging over his head. That was not a fact that was put in issue on the plea. As we have already said, no emphasis was given to this consideration during the plea, the focus being on whether delay was attributable to his offending, and as a consequence it did not receive any specific attention in his Honour’s sentencing remarks.
The applicant has therefore, in our view, made out the contention that the sentencing judge did not give this second consideration any, or any sufficient weight and so erroneously concluded that any reduction in sentence should only be minimal.
We would grant leave to appeal and as we are authorised by the President under s 11 of the Supreme Court Act 1986, to hear the appeal in the event that leave is granted, we would allow the appeal.
We consider that the very long period during which the applicant faced the prospect of punishment for these very serious offences, which he must now undergo, warrants a reduction in the sentence which he should now be required to serve that was more than minimal. We will therefore allow the appeal and re sentence the applicant as follows:
Count 1 3 years’ imprisonment Count 2 6 months’ imprisonment Count 3 12 months’ imprisonment Count 4 6 years’ imprisonment Count 5 12 months’ imprisonment Count 6 12 months’ imprisonment Count 7 6 months’ imprisonment Count 8 12 months’ imprisonment Count 9 2 years’ imprisonment Count 10 6 months’ imprisonment Count 11 6 years’ imprisonment Count 12 2 years’ imprisonment Count 13 2 years’ imprisonment Count 14 6 months’ imprisonment Count 15 6 months’ imprisonment
We interpolate that the only change in the actual terms of imprisonment imposed by the sentencing judge is a change with respect to the term relating to Count 1.
We direct that 12 months of Count 1, six months of Count 8, three years of Count 11, nine months of count 12 and nine months of count 13 be served cumulatively on each other and on Count 4, making a total effective sentence of 12 years' imprisonment.
We direct that the applicant serve a minimum of eight years and six months before he is eligible for parole.
Pursuant to s 6AAA of the Sentencing Act 1991, we should indicate that, but for the appellant’s plea of guilty, we would have imposed a total effective sentence of 15 years with a non-parole period of 11 years.
Save for one matter, all other ancillary orders made below are confirmed. In making the pronouncement required under s 6F of the Sentencing Act 1991, it appears that his Honour improperly treated the second charge as a serious sexual offender charge when the Act requires that it is only the third and any subsequent offences that are to be so treated. His Honour’s order will be amended and will now read:
Pursuant to s 6F of the Sentencing Act 1991, the offender is sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15.
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