Weir (a pseudonym) v The King
[2023] VSCA 113
•15 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0111 |
| RUSSELL WEIR (A PSEUDONYM)[1] | Appellant |
| v | |
| THE KING | Respondent |
[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant so as to prevent the identification of victims of sex offending.
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| JUDGES: | BEACH and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 May 2023 |
| DATE OF JUDGMENT: | 15 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 113 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1084 (Judge Davis) |
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CRIMINAL LAW – Appeal – Sentence – Incest, sexual assault and sexual penetration of a stepchild – TES of 17 years and 1 month, with NPP of 13 years – Manifest excess – Whether sentences manifestly excessive – Very serious offending – Offending committed while holding victim down – Offending resulting in impregnation of 11 year old child – Sentences imposed strongly suggestive that plea of guilty made during pandemic given appropriate consideration by sentencing judge – Sentences not manifestly excessive – Appeal dismissed.
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| Counsel | |||
| Appellant: | Mr J Connolly | ||
| Respondent: | Ms R Harper | ||
Solicitors | |||
| Appellant: | Stary Norton Halphen | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
T FORREST JA:
On 26 May 2022, the appellant pleaded guilty in the County Court to one charge of incest[2] (charge 1), one charge of sexual assault[3] (charge 2), and four charges of sexual penetration of a stepchild.[4] On 19 July 2022, he was sentenced as follows:
[2]Contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[3]Contrary to s 40 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4]Contrary to s 50D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
Charge Offence Maximum Sentence Cumulation 1 Incest 25 years 10 years 18 months 2 Sexual assault 10 years 6 months 1 month 3 Sexual penetration of a stepchild 25 years 10 years 18 months 4 Sexual penetration of a stepchild 25 years 11 years Base 5 Sexual penetration of a stepchild 25 years 10 years 18 months 6 Sexual penetration of a stepchild 25 years 10 years 18 months Total Effective Sentence: 17 years and 1 month Non-Parole Period: 13 years Section 6AAA Statement: 21 years, with a non-parole period of 17 years Other relevant orders: Sentenced as a serious offender on charges 36 and registered on the Sex Offenders Registry with the reporting period for life.
Pursuant to leave granted by this Court on 14 November 2022,[5] the appellant appeals against his sentence on the following ground:
1.The sentences on charges 3, 4, 5 and 6, the orders for cumulation, and therefore the total effective sentence and the non-parole period, are manifestly excessive.
[5][Weir (a pseudonym)] v The King (unreported, Court of Appeal, Priest JA, 14 November 2022).
Circumstances of the offending
The victim of charge 1 was the appellant’s biological daughter. Charge 1 was a course of conduct charge concerning offending that occurred between 10 November 2016 and 30 June 2017, when the appellant’s daughter was aged 13 and the appellant was 36 or 37. During weekly visits, the appellant penetrated his daughter’s vagina and anus on a frequent basis. Typically, the appellant’s offending involved holding his daughter down. While the appellant penetrated his daughter’s vagina on numerous occasions between 10 November 2016 and 30 June 2017, she detailed the following incidents as part of the offending against her:
(1)The first incident occurred when she was asleep in her bed. The appellant woke her, held her down, and removed her lower body clothing before pulling down his own underwear and inserting his penis into her vagina. This caused the appellant’s daughter pain and discomfort. She moved up the bed to get away from him, and managed to fight him off. He did not ejaculate, and penetration lasted for a short time before he left the bed.
(2)The second incident occurred when the appellant entered his daughter’s bedroom while she was lying awake on her back. He held her arms by her side so that she could not move, and grabbed her as she tried to move away. He took off his shorts and underwear and pulled down her underwear, before penetrating her vagina. This incident, including penetration, lasted approximately ten minutes.
(3)On three occasions, the appellant woke his daughter up and attempted to sexually assault her. In her attempts to get away from him, she rolled over onto her stomach. On those occasions, he held her down, took off her shorts and underwear, and penetrated her anus.
The appellant told his daughter that his conduct was normal, ‘telling her that it was normal for a father and daughter to do it’.[6] He also told her not to tell anyone and that if he got into trouble or went to gaol, it would be her fault. The offending only ceased when the appellant’s daughter had to have surgery to repair a vital organ.
[6]DPP v Weir (a pseudonym) [2022] VCC 1084, [9] (‘Reasons’).
Charges 2 to 6 related to the appellant’s stepdaughter. The appellant’s offending against her occurred between 19 October 2019 and 11 January 2021. During that period, the appellant’s stepdaughter was aged 10 or 11 years, and the appellant was aged between 39 and 41.
Charge 2 involved the appellant pulling up his stepdaughter’s school dress, pulling down her underwear and touching her leg. Charges 3, 4, 5 and 6 each involved the appellant penetrating his stepdaughter’s vagina with his penis. The sexual intercourse to which charges 3, 5 and 6 related culminated in the appellant ejaculating on his stepdaughter’s stomach. The sexual intercourse to which charge 4 culminated in the appellant ejaculating in her vagina. Specifically:
(1)Charge 2 occurred in late October 2019 or early November 2019. The appellant’s stepdaughter was in the loungeroom playing with a virtual reality headset. The appellant pulled up her school dress and pulled down her underwear. She could feel what was happening, but could not see due to wearing the headset. She felt the appellant touch her leg. After removing the headset, she saw the appellant attempting to touch her. She pushed him away.
(2)Charge 3 occurred in October or November 2020. The appellant’s stepdaughter was 11, he laid her down on a wooden cabinet in a shed and penetrated her vagina with his penis. He ejaculated on her stomach and cleaned it up with a rag.
(3)Charge 4 occurred between 25 December 2020 and 5 January 2021. The appellant penetrated his stepdaughter’s vagina in the master bedroom. He kissed her mouth afterwards, using his tongue. She found this disgusting and hated it. She fell pregnant as a result of the intercourse on this occasion. This was confirmed at a hospital in mid-January, and the pregnancy was terminated a week or two later. A DNA analysis confirmed that the appellant was the father.
(4)Charge 5 occurred on 7 January 2021. The appellant penetrated his stepdaughter’s vagina with his penis on the bed in the master bedroom and ejaculated on her stomach. This incident lasted approximately 10 to 15 minutes.
(5)Charge 6 occurred on 11 January 2021. Again, the appellant penetrated his stepdaughter’s vagina with his penis on the bed in the master bedroom, and then ejaculated on her stomach.
From the first time the appellant offended against his stepdaughter, he repeatedly told her not to tell anyone about his offending.
Sentencing reasons
The judge commenced her reasons for sentence with a summary of the appellant’s offending.[7] Her Honour then detailed the circumstances of the appellant’s arrest and interviews with police, noting that in his interview concerning his offending against his stepdaughter, the appellant blamed her for initiating the sexual acts,[8] while he gave a ‘no comment’ interview in relation to the offending against his daughter.[9]
[7]Ibid [3]-[19].
[8]Ibid [22].
[9]Ibid [26].
The judge noted that it was at the third committal mention (on 17 September 2021) that the appellant indicated his intention to plead guilty.[10]
[10]Ibid [27].
The judge summarised the victim impact statements made by his daughter, his daughter’s mother and his stepdaughter’s mother.[11] In summarising the victim impact statements, her Honour described in some detail the consequences of the appellant’s appalling conduct against his daughter and stepdaughter.
[11]Ibid [28]-[32].
Next, the judge summarised the appellant’s personal circumstances, noting that the appellant had a happy home life growing up in a stable family environment.[12] He left school at the age of 15, and completed a carpentry and joinery apprenticeship, after which he worked mainly on commercial construction projects. At the age of 34, he started work as a truck driver for a transport company, but stopped in 2020 because of back problems.[13]
[12]Ibid [34].
[13]Ibid.
The judge noted that, at age 14, the appellant began experimenting with cannabis and was a heavy user from the ages of 16 to 24. He also drank heavily in his early 20s, and at the age of 34 began experimenting with methamphetamine.[14]
[14]Ibid [35].
The judge noted that the appellant’s only prior offending was in 2003, when he was fined $100 without conviction for being drunk in a public place, using indecent language in a public place, and resisting police.[15]
[15]Ibid [36].
The judge referred to the appellant’s medical history of anxiety against a background of substance abuse. She also referred to a report from a consultant forensic psychiatrist, Dr Darjee, which was tendered on the plea. Her Honour noted Dr Darjee’s opinion that the appellant’s offending followed a pattern commonly seen in men who offended against their daughters, in that when they are having relationship problems, they regress and turn to children as a substitute for adult sexual intimacy.[16] She also noted Dr Darjee’s opinion that the appellant posed a low risk of further sexual recidivism and that the appellant was ‘very unlikely to cause serious physical harm or to target children he does not have a parental relationship with’.[17]
[16]Ibid [37].
[17]Ibid [38].
After summarising the submissions made by the appellant’s plea counsel and the prosecutor, the judge said:
Your offending in relation to each victim can only be described as heinous, as a fundamental abuse of parental authority and as a fundamental betrayal of the whole community’s recognised values of family, of decency and of simple common humanity. Your actions have deprived your victims of their childhood, of their physical integrity, and of their right to feel safe at home. The young ages of the victims is a factor which further elevates the seriousness of your offending. In addition, there is no evidence that you wore a condom while offending against them, thus exposing them to the risk of sexually transmitted diseases and to pregnancy, a risk which eventuated in the case of [your stepdaughter].
Your offending against [your daughter], aged 13, involved a course of conduct of anal and penile penetration over 7 months. You manipulated and coerced her psychologically. You used force to hold her down when penetrating her. The anal penetrations occurred when she fought your attempts at penile penetration of her vagina. Your offending caused her pain and distress, years of anxiety and depression, a deterioration in her school work, self-harming, hypervigilance and efforts to avoid you wherever possible. Your offending only ceased when she underwent major surgery. In sentencing you for this course of conduct, I have had regard to two recent decisions of the Court of Appeal, DPP v Tullipan (a pseudonym) [2021] VSCA 191; and Crawford (a pseudonym) v The Queen [2018] VSCA 113, which were referred to me by counsel.
Your offending against [your stepdaughter], aged 10, began with a sexual assault and graduated to sexual penetration on four occasions, three of which occurred in the master bedroom of your home, and the second of which (Charge 4) resulted in a pregnancy. She no doubt suffered pain and distress during your offending. Your offending ceased when her pregnancy was confirmed. She then underwent a termination at the age of 11. According to her mother, your stepdaughter suffered terrible pain as well as mental and emotional scarring after the termination. Her grades slipped from A to C and she had difficulty maintaining friendships for fear of being judged. She has remained terrified of the dark, bed-wets on occasion, and every item in the household associated with your offending (furniture, beds, linen etc.) has had to be removed. She continues to fear that you will contact her against her will.[18]
[18]Ibid [48]-[50].
The judge described the appellant’s record of interview as ‘callous and shameful’, in that he blamed his 10 year old stepdaughter for the offending. As her Honour said, given the DNA evidence obtained from the termination of the pregnancy, the Crown case against the appellant in relation to the offending against his stepdaughter was a ‘very strong one’.[19]
[19]Ibid [51].
Her Honour then referred further to the appellant’s background and Dr Darjee’s report, before saying that she ‘reject[ed] Dr Darjee’s assertion that [the appellant’s] unwillingness to discuss the offending is irrelevant to the issue of recidivism or [his] prospects of rehabilitation’.[20]
[20]Ibid [54].
The judge said that, apart from the taking of responsibility which inhered in a plea of guilty, she considered that, given the appellant’s comments in his record of interview blaming his stepdaughter for his conduct against her, he had shown no genuine remorse for that offending. Additionally, the judge did not think that the appellant had shown genuine remorse for his offending against his daughter.[21] The judge said, for this reason, she had given less weight to the appellant’s plea of guilty than would otherwise have been the case, although she took into account that the appellant’s plea had validated the accounts of his daughter and stepdaughter, and saved them from the trauma of giving evidence.[22] The judge also said that she had taken into account ‘an additional amelioration of sentence for entering your plea during the currency of the COVID-19 pandemic’.[23]
[21]Ibid [54].
[22]Ibid [55].
[23]Ibid. Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
The judge concluded her reasons for sentence by saying:
On the authorities, your offending requires the principles of general and specific deterrence, denunciation and protection of young persons to be at the forefront of the sentencing process. The long-term harm done to the victims from your gross breach of trust must be given appropriate weight.[24] In addition, I must have regard to the maximum penalties imposed by Parliament for the offences you have committed and to current sentencing practices.
[24]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148.
I acknowledge the absence of prior relevant convictions. I also take into account that your time in custody may be more onerous than for a person not vulnerable to anxiety and depression.
Whilst I accept that the assessment tools used by Dr Darjee yielded a conclusion that you pose a low risk of further sexual recidivism, I am not persuaded by this conclusion in the light of the qualifying statements that followed this conclusion:
… This low number of risk factors and level of dynamic risk, combined with the level of assessed risk with the Static-99R, indicate that overall he poses a low risk of further sexual recidivism. That is, he is less likely than the average man convicted of a sexual offence to commit a further offence. In the unlikely scenario that he did commit a further offence it would be similar in nature to the current offences. He is very unlikely to cause serious physical harm or to target children he does not have a parental relationship with. There is nothing to indicate that he would pose an imminent risk if in the community. The only sensible risk management strategy required is preventing him having the sole care of girls aged between 10 and 17 years old.
I consider on the material before me that your prospects of rehabilitation are guarded, particularly if they depend on your not forming relationships with women who have daughters/young daughters, or not having sole contact with young girls.
I acknowledge that when considering the extent of cumulation between sentences, even in relation to those offences to which you are liable to be sentenced as a serious sexual offender, the principle of totality dictates that the total effective sentence imposed must not be a crushing one. Nonetheless, the sentence imposed must reflect the fact that there are two young victims of your offending. As was conceded by your counsel, the only appropriate sentence in your case is a substantial and lengthy term of imprisonment, but one that is no longer than appropriate.
In sentencing you, I regard the offending the subject of Charge 4, which caused your 11-year-old stepdaughter to undergo a termination of pregnancy, as the most serious of the offences to which you have pleaded guilty, although in terms of seriousness it is closely followed by the seriousness of the course of conduct offending against your daughter and the remaining penetrative offences committed against your stepdaughter.
As you are to be sentenced to a term of imprisonment on Charges 1 and 2, you are to be sentenced as a serious sexual offender on Charges 3 to 6. This means in determining the length of your sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed.[25] In doing so, I may impose a disproportionate sentence.[26] It was not submitted that I should impose a disproportionate sentence, and therefore I decline to do so. Additionally, unless I direct otherwise, the sentences of imprisonment imposed on Charges 3 to 6 must be served cumulatively on any uncompleted sentences of imprisonment.[27] To apply the principle of totality and avoid a crushing sentence, I direct otherwise, and have moderated the orders for cumulation as outlined below.
I note that the standard sentence for the offence of sexual penetration of a stepchild (Charges 36), which takes account only of the objective factors of the offending, and not of the personal circumstances of the offender,[28] is one of 10 years’ imprisonment.[29] I also note that, on the authorities, the standard sentence is a legislative guidepost akin to the guidance provided by the maximum penalty for an offence; it does not affect the assessment of the seriousness of the offence which is undertaken as part of the instinctive synthesis.[30] [31]
[25]Sentencing Act 1991 (Vic) s 6D(a).
[26]Ibid s 6D(b).
[27]Ibid s 6E.
[28]Ibid s 5A.
[29]Crimes Act 1958 (Vic) s 50D.
[30]Sentencing Act 1991 (Vic) s 5B; Brown v The Queen [2019] VSCA 286.
[31]Reasons [56]-[63] (footnotes in original).
Appellant’s submissions
The appellant contends that the sentences on charges 3, 4, 5 and 6, the orders for cumulation, the total effective sentence and the non-parole period are each manifestly excessive. He submits that the manifestly excessive total effective sentence is the product of her Honour imposing manifestly excessive sentences on charges 3, 4, 5 and 6, and then making manifestly excessive orders for cumulation.
In support of his submissions of manifest excess, the appellant advanced the following arguments:
(1)The sentences on charges 3 to 6 related to single events. Although the charges are standard sentence offences, and the appellant was sentenced as a serious sexual offender, the sentences imposed on those charges were not proportionate to the offending and the overall circumstances of the case.
(2)The orders for cumulation on charges 3 to 6 had the effect of imposing a sentence of 15 years and 6 months for four instances of offending against one victim (the appellant’s stepdaughter). A sentence of 15 years and 6 months for those four offences breached the principle of totality — ‘even noting the tension with the serious offender provisions’. The aggregation of the sentences on charges 3 to 6 was not a ‘just and appropriate measure of the total criminality involved’.[32] Thus, the orders for cumulation in respect of those charges (if not more generally) infringed the totality principle.
(3)The judge erred in not accepting the opinion of Dr Darjee that the appellant now poses a low risk of sexual recidivism.
(4)The judge erred in failing to give proper weight to the appellant’s plea of guilty, based on her finding that the appellant had shown no genuine remorse. The appellant submitted that the correct characterisation was that he had shown ‘little remorse’. In any event, even if the appellant displayed no remorse, the sentences imposed ‘do not demonstrate the significant utilitarian benefit of the [appellant’s] plea’.
(5)The appellant was entitled to expect a ‘perceptible amelioration of sentence’[33] for entering his plea during the COVID-19 pandemic. There was no perceptible amelioration of sentence flowing from the entry of the appellant’s plea during the pandemic. Moreover, the time the appellant spent (and would spend) in custody under COVID-19 conditions would be more onerous than otherwise. Her Honour, however, made no reference to this additional matter in her sentencing reasons.
[32]See Postiglione v The Queen (1997) 189 CLR 295, 3078 (per McHugh J).
[33]Worboyes [2021] VSCA 169.
Consideration
The appellant’s offending against his daughter and stepdaughter can only be described as appalling. In what were comprehensive and commendably detailed reasons for sentence, the judge rightly described the offending as ‘heinous’; ‘a fundamental abuse of parental authority and as a fundamental betrayal of the whole community’s recognised values of family, of decency and of simple common humanity’; and as having deprived the appellant’s victims (his daughter and his stepdaughter) of their childhoods, their physical integrity, and their right to feel safe at home.[34]
[34]Reasons, [48].
To the extent that it was asserted by the appellant that the judge had overlooked any relevant matter, or that there was some inadequacy in her Honour’s reasons, that submission must be rejected. Specifically, we are not persuaded that her Honour overlooked the onerous nature of custody under COVID-19 conditions. That issue was the subject of submissions on the plea. Moreover, her Honour made reference to the additional amelioration of sentence resulting from the appellant having entered his plea during the currency of the COVID-19 pandemic.[35] In the circumstances of this case, it was not necessary for her Honour to say more.
[35]Ibid [55].
In oral submissions, the appellant isolated various components of her Honour’s sentence and directed criticisms to those isolated components. Those criticisms must be rejected – as must the appellant’s submissions referred to in paragraph [21(2)] above. Each sentence and order made by the judge must be considered in the context of the entirety of the appellant’s offending and personal circumstances.
When one looks at the total criminality involved in respect of all charges, it cannot be said that a total effective sentence of 17 years and 1 month infringes the principle of totality. Each of charges 1, 3, 4, 5 and 6 were very serious examples of very serious offences. While charge 4, which resulted in the impregnation of the appellant’s 11 year old stepdaughter, received the highest sentence, the protracted and repeated penetrations by the appellant of his 13 year old daughter’s vagina and anus (charge 1) resulted in the appellant receiving a sentence on that charge which could only be described as modest in all the circumstances. Plainly there can have been no undervaluing of the appellant’s plea of guilty on that charge when it came to the imposition of a sentence of a mere 10 years for that offending.
It will be recalled that the standard sentence for charges 3, 4, 5 and 6 is 10 years’ imprisonment. The standard sentence, as correctly characterised by her Honour, is a legislative guidepost akin to the similar guidance provided by the maximum penalty for an offence. The standard sentence takes ‘account only of the objective factors affecting the relative seriousness of that offence’, and not the personal circumstances of the offender. Parliament has determined that the standard sentence is intended to reflect offending in ‘the middle of the range of seriousness’ for the offence being considered. These guideposts are to be considered along with the other factors relevant to the instinctive synthesis.
The offending constituting charge 4 represents an extremely serious example of the offence of sexual penetration of a stepchild, considerably more serious, in our view, than a notional middle of the range example of this offence. Ultimately, the judge imposed a sentence for that offence that was only 44 per cent of the maximum penalty, and slightly higher than the standard sentence. Many more factors, as we have observed, inform the instinctive synthesis, however, the objective gravity of the offending on charge 4, involving the impregnation of this 11 year old child, would have permitted the judge to impose a significantly higher sentence than that which was ultimately imposed for this charge.
Similarly, it is to be remembered that, in addition to charges 3–6 being standard sentence offences, the appellant was sentenced as a serious sexual offender on those charges — giving rise to a presumption of cumulation in respect of the sentences on those charges.[36] In the circumstances, it is difficult to see how there can be any complaint about the orders for cumulation made on charges 3, 5 and 6.
[36]See s 6E of the Sentencing Act 1991.
We are not persuaded that any of the sentences or orders made by the judge show that there has been any undervaluing of the appellant’s pleas of guilty made during the course of the pandemic. To the contrary, it seems to us that the sentences and orders made by the judge strongly suggest that the judge gave appropriate consideration to the appellant’s pleas of guilty, and perceptibly ameliorated the sentences and orders which might otherwise have been imposed for the appellant’s offending.
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[37] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[38]
[37]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[38]Ibid.
Having considered all of the circumstances of the appellant’s offending, together with his personal circumstances (including his plea of guilty during the pandemic), we are not persuaded that any of the sentences or orders made by the judge were wholly outside the range of permissible sentencing options. It follows that the appellant has not made out any of his complaints of manifest excess. Each of the sentences on charges 1 to 6 were well within range. While the orders for cumulation have produced a total effective sentence which could be regarded as stern, that sentence itself was justified in all the circumstances having regard to the egregious nature of the appellant’s offending against his daughter and stepdaughter.
Conclusion
The appeal must be dismissed.
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