Whitecroft (a pseudonym) v The King
[2025] VSCA 143
•26 June 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0114 |
| RICHARD WHITECROFT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identity of the victim of the sexual assault offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | Niall CJ and Kidd JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 05 May 2025 |
| DATE OF JUDGMENT: | 26 June 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 143 |
| JUDGMENT APPEALED FROM: | [2024] VCC 775 (Judge Gaynor) |
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CRIMINAL LAW — Application for leave to appeal sentence — Indecent act with a child under 16 — Incest and attempted incest — Whether error in application of principles for sentencing person who was a child at time of offending — Whether error in sentencing judge’s assessment of remorse component of guilty plea — Whether undue weight given to victim impact statement — Whether sentences manifestly excessive — No error found — Leave to appeal refused.
Sentencing Act 1991, ss 5(2), 8K.
R v PJP (2007) 17 VR 300, discussed.
Barbaro v The Queen; Zirilli v The Queen (2012) 226 A Crim R 354; Gray (a pseudonym) v The Queen [2018] VSCA 163; Clarkson v The Queen (2011) 32 VR 361, applied.
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| Counsel | |||
| Applicant: | Mr RF Edney | ||
| Respondent: | Mr R Gibson KC | ||
Solicitors | |||
| Applicant: | Mr A Halphen, Stary Norton Halphen | ||
| Respondent: | Ms A Hogan, Office of Public Prosecutions | ||
NIALL CJ
KIDD JA:
On 17 May 2024, the applicant pleaded guilty to two counts of indecent act with a child under 16, two counts of attempted incest and four counts of incest (relating to his younger sister). He was sentenced on 30 May 2024 as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Indecent act with child under 16[2] | 10 years | 8 months | 2 months |
| 2 | Indecent act with child under 16 | 10 years | 8 months | 2 months |
| 3 | Attempted incest — sibling[3] | 2 years | 8 months | 2 months |
| 4 | Incest — sibling[4] | 5 years | 12 months | 3 months |
| 5 | Incest — sibling | 5 years | 11 months | 2 months |
| 6 | Incest — sibling | 5 years | 14 months | Base |
| 7 | Incest — sibling | 5 years | 12 months | 3 months |
| 8 | Attempted incest — sibling | 2 years | 8 months | 2 months |
| Total Effective Sentence: | 2 years 6 months’ imprisonment | |||
| Non-Parole Period: | 18 months | |||
| Pre-sentence Detention Declared: | N/A | |||
| Section 6AAA Statement: | Total Effective Sentence: 4 years 6 months Non‑Parole Period: 2 years | |||
| Other Relevant Orders: 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 and 8. | ||||
[2]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[3]Contrary to ss 321M, 44(4) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[4]Contrary to s 44(4) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
The applicant seeks leave to appeal his sentence on the following grounds:
Ground one: The sentencing judge erred in the application of the sentencing principles for adult offenders when they fall to be sentenced for offences committed as a child.
Ground two: The sentencing judge erred in finding that the applicant did not demonstrate any remorse when assessing the weight to be given to the guilty plea.
Ground three: The sentencing judge gave undue, and disproportionate, weight to the contents of the victim impact statement in the determination of the instinctive synthesis.
Ground four: The individual sentences, orders for cumulation, non‑parole period and total effective sentence are manifestly excessive.
Circumstances of the offending
The applicant was the complainant’s elder brother. He was aged 15 to 17 years old during the period of offending, and the complainant was 12 to 14 years old. The offending occurred at the family property between 1998 and 2000.
Charges 1, 2, 4 and 6 are rolled up charges.
In addition to the instances of offending identified below, the complainant stated that there were countless incidents during which the applicant made her masturbate him in the green shed on their family property (the ‘green shed’), approximately twice per week.
Incident one
On an unknown date between 1 January 1998 and 31 December 1998, while the applicant and complainant were riding a motorbike, the applicant grabbed the complainant’s left hand, put it on his crotch and started to rub his erect penis with her hand (charge 1 – rolled up – act 1). This continued for approximately five minutes. The applicant then stopped and led the complainant into the green shed. She did not want to follow him but he said to her — ‘I will tell mum and dad if you don’t do this’. Inside the green shed, the applicant grabbed the complainant’s hand and began stroking his erect penis with it (charge 1 – rolled up – act 2). He then pulled down his pants and put the complainant’s hand around his penis, causing her to masturbate him until he ejaculated (charge 2 – rolled up – act 1). During this incident, the complainant turned away and shut her eyes.
Incident two
The applicant and complainant were in the green shed in the spring or summer of 1998 when the applicant lowered his pants and told her to ‘just put your mouth around it’. She refused and he put his hands around the back of her head and pushed it towards his penis. She closed her lips and tried to pull away, and the applicant eventually stopped trying (charge 3).
Incident three
Approximately one week following incident two, the applicant and complainant were again in the shed. The applicant pulled down his pants and put the victim’s hand on his penis, using it to masturbate him (charge 2 – rolled up – act 2). He then directed her to ‘put [her] mouth around it’, which she refused to do, following which he put his hand around her head and forced the complainant’s mouth against his penis until she eventually gave in and he thrust his penis in and out of her mouth (charge 4 – rolled up – act 1). He then continued to masturbate in her presence until he ejaculated.
Incident four
Approximately one week after incident three, the applicant and complainant were in the shed when he again forced the complainant’s mouth onto his penis while she attempted to resist (charge 4 – rolled up – act 2). He then grabbed her hand and put it on his penis, telling her to ‘finish it off’ and the victim masturbated the applicant until he ejaculated, at which point she ran out of the shed (charge 2 – rolled up – act 3).
Incident five
When the applicant was 12 or recently 13 years old, she was lying under a doona on the couch in the living room and the applicant joined her and pulled the doona over them both. The complainant told him to go away but he asked her to be quiet before putting his hands under her pyjamas and inserting his fingers inside her vagina (charge 5). He continued to digitally penetrate the complainant when their brother came into the living room and only stopped when the complainant started to push him off her.
Incident six
On an unknown date in 1999, the applicant and complainant were in the shed when he bent her over the bed and pulled her pants down. He put lubricant on his fingers and inserted them into the complainant’s anus. He then inserted the head of his penis into her anus (charge 6 – rolled up – act 1). The complainant began screaming in pain. The applicant then pushed her head into the bed and put a pillow over it. He continued for a couple of minutes before pulling his penis out and ejaculating on the complainant.
Incident seven
On another date in 1999, the applicant came to the complainant’s bedroom and tried to bend her over her bed. She told him that she was menstruating and he said that he did not care. He pushed her face down on the bed and proceeded to insert his penis into her anus until he ejaculated (charge 6 – rolled up – act 2).
Incident eight
On another unknown date in 1999 when the applicant and complainant were home alone, the applicant came into her bedroom, grabbed her hand and took her into his room. When she tried to leave, he grabbed her arm, pushed her face down onto his bed, pulled down her pants and tried to insert his penis into her anus. The complainant was crying in pain. The applicant then inserted his penis into the complainant’s vagina, causing her further pain. He continued the penetration until he ejaculated on the complainant’s back (charge 7).
Incident nine
On a different unknown date in 1999, the applicant took the complainant into the green shed. He pushed her onto the bed, face down, and inserted his penis into her anus (charge 6 – rolled up – act 3). The complainant began screaming loudly — knowing that their mother was gardening nearby — and told the applicant that it was hurting. He spat on his penis and continued (charge 6 – rolled up – act 4). The complainant screamed again and the applicant put a pillow over her head, continuing the penetration before ejaculating on her back and buttocks.
Incident ten
On an unknown date between 1 January 2000 and 30 June 2000, the applicant came into the shower while the complainant was showering. He told her to be quiet and attempted to insert his penis into her anus (charge 8). He was unable to do so and instead grabbed the complainant’s hand and used it to masturbate himself.
Disclosure and investigation
The complainant first disclosed the incidents to her partner and parents four years after the offending. She reported the matter in 2019 and finalised a statement in February 2021.
On 6 November 2021, a pretext conversation was initiated by the complainant with the applicant at a park. During this conversation, the complainant confronted the applicant about the offending. In response, the applicant apologised and repeatedly stated that he regretted his actions. He stated that he did not know why he did it but asserted that he did not remember half of the offending.
On 19 August 2022, the applicant was arrested and interviewed by police. During the interview, he produced a pre‑prepared handwritten document that he read aloud, including statements that:
Some of the things she raised happened many did not.
While I accept that the things that happened none of it was forced and at no stage did we have penial [sic] / vaginal intercourse.
On a handful of occasions over a year or two when I was between 14 and 15 we engaged in other sexual acts including masturbating each other and performing oral sex on each other.
This stopped when I was almost 16 when I started dating a girl by the name of [RH].
I am ashamed of and regretful for engaging in sexual acts with my sister.
I am sorry for the pain I have caused my sister by doing these things.
The sentencing judge found that this statement ‘contained a number of untruths’.[5] The applicant otherwise made no comment during the interview.
[5]DPP v Whitecroft (a pseudonym) [2024] VCC 775 (‘Reasons’), [41].
The matter proceeded to the first day of a contested committal hearing before the applicant pleaded guilty.
Sentencing reasons
The sentencing judge noted that the applicant had no prior or subsequent criminal convictions, nor any familial history of police involvement. He had a stable family background and had been employed in a number of roles since graduating school. At the time of sentencing, he had a five‑year‑old daughter. Child protection became involved following the charges but the investigation concluded and the applicant continued to see his daughter under supervision of her mother.
At the time of the offending, the applicant was aged between 15 and 17. It was submitted by his defence counsel that he believed his friends were sexually active at this time while he was not, and that he connected the offending with curiosity and experimentation.
The sentencing judge included extracts of the victim’s ‘extremely lengthy’ victim impact statement (‘VIS’) in the Reasons.[6] The VIS described the impact of the trauma on the complainant, including her ‘unbearable emotional pain’ and the destruction of her familial relationships in light of the applicant’s representation to their family that the offending had involved consensual, mutual activity.[7] Her Honour also referred to the complainant’s permanent physical disability and psychological conditions which have arisen from the assaults.
[6]Ibid [43].
[7]Ibid [45]–[46].
The sentencing judge drew particular attention to the applicant’s ‘cruel lie’ to their family about the offending, which he maintained as an adult in his initial police interview, further contributing to the complainant’s suffering and estrangement from her parents.[8]
[8]Ibid [72].
The sentencing judge noted that the effects on the complainant had ‘an important role to play’ in the assessment of the objective gravity of the offending and the applicant’s moral culpability, however, the court must avoid placing too much emphasis on the impact of the offending.[9]
[9]Ibid [67].
In the Reasons, her Honour referred to the applicable principles for sentencing an offender as an adult for offences committed as a child and the defence’s submission that the applicant should receive a non‑custodial sentence on the basis of his youth.[10] In deciding the sentence, the sentencing judge expressly stated that the sentence was ‘very much moderated’ and constrained in length on account of the fact that the applicant was a child at the time of the offending and that prison would be particularly difficulty for him.[11] However, her Honour ultimately determined that, in light of the seriousness of the offending, the applicant’s moral culpability and the life‑long impact of the offending on the complainant, only an immediate term of imprisonment was appropriate to satisfy the prominent principles of denunciation and just punishment.[12]
[10]Ibid [62]–[64] quoting R v PJP (2007) 17 VR 300, 304 [16] (Nettle JA, Ashley and Dodds‑Streeton JJA agreeing); [2007] VSCA 242 (‘PJP’).
[11]Reasons, [79]–[80].
[12]Ibid [76], [79].
Her Honour found that, despite being a child himself (notably at the ‘upper end of that age range’), the applicant had the capacity to perceive the ‘ongoing and evident distress and pain’ that his violent and cruel actions caused his sister.[13] This ‘had absolutely no deterrent effect’ on him. As her Honour noted, not only did the sexual assaults continue, but they became more serious over time.[14]
[13]Ibid [68].
[14]Ibid [69].
The sentencing judge asserted that the applicant had demonstrated only ‘partial remorse’.[15] While he expressed remorse to the complainant in private, he subsequently denied the extent of the offending to police when his ‘own personal situation was threatened’.[16] While the applicant was entitled to the utilitarian benefit of his guilty plea, her Honour found that no further discount would apply to the plea.[17]
[15]Ibid [74].
[16]Ibid [74].
[17]Ibid [75].
The sentencing judge noted that while the applicant had no prior criminal history and had not subsequently offended, this was regularly the case in child sexual abuse matters.[18] While her Honour took into account that 24 years had elapsed since the offending, the impact of delay was limited where the applicant was not made aware of the charges until 2022.[19]
Ground one: The sentencing judge erred in the application of the sentencing principles for adult offenders when they fall to be sentenced for offences committed as a child
Applicant’s submissions
[18]Ibid [77].
[19]Ibid [78].
The applicant submits that the sentencing judge erred in her application of the principles expressed in R v PJP.[20] This was evidenced by her Honour’s assessment of the applicant’s relative level of maturity and high moral culpability. It is contended that the applicant was effectively deprived of the benefit of the mitigating factor of his youth at the time of offending.
[20](2007) 17 VR 300, 304 [16] (Nettle JA, Ashley and Dodds-Streeton JJA agreeing); [2007] VSCA 242.
At the hearing, it was submitted on behalf of the applicant that the sentencing judge had conflated the ‘distinctly different’ issues of the applicant’s moral culpability for the offending, committed whilst he was a child, and his subsequent conduct in maintaining the lie to his family and police as an adult. Counsel contended that the applicant’s lie as an adult had a significant impact on her Honour’s assessment of moral culpability and her exercise of the sentencing discretion, when that subsequent conduct was irrelevant and said nothing about his actions as a child.
Respondent’s submissions
The respondent submits that there was no error in the sentencing judge’s approach to the sentencing exercise for an adult offender who had committed the subject offences as a child, asserting that the relevant principles were ‘discussed in length’ at the plea and referred to in the Reasons.
The respondent submits that there was no error in the sentencing judge’s conclusion about moral culpability or her observations that, despite the applicant’s age, the complainant’s pain and distress would have been obvious to him and he must have appreciated the wrongfulness of his conduct.[21]
[21]Reasons, [68].
At the hearing, counsel for the respondent emphasised that the later offending occurred when the applicant was aged 16 and 17. He was at the outer reaches of childhood. The offending also escalated in its gravity.
It was contended by the respondent that the applicant’s oral submissions that the sentencing judge conflated the applicant’s moral culpability for the offending with his subsequent denials or qualified admissions, raised a new and different argument from the ground advanced in their written case. Regardless, it was submitted that the sentencing judge had not conflated the issues but had separately considered them, reaching a conclusion as to the applicant’s culpability that was amply supported by the very serious nature of the offending.
Analysis
There is no merit to the first proposed ground of appeal.
The applicable approach for sentencing an adult offender for offences committed as a child is encapsulated in Nettle JA’s observations in PJP:
There is good reason to mitigate penalty or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability take into account that what was done was done as a child, or as a person of immature years and not as an adult or a person of greater maturity.[22]
[22](2007) 17 VR 300, 304 [16] (Ashley and Dodds-Streeton JJA agreeing); [2007] VSCA 242.
The sentencing judge accurately recited this principle.[23] This issue was ‘front and centre’ during the plea discussions. In the Reasons, her Honour went to great lengths to emphasise that she was sentencing the applicant for offending that he committed as a child, decades ago.[24]
[23]Reasons, [63].
[24]Ibid [78]–[80].
In support of the contention that the applicant was effectively deprived of the benefit of the mitigating factor of his youth at the time of offending, the applicant relies upon the following remarks in her Honour’s Reasons:
You may have at law been a child at the time of your offending, but in reality you were at the upper end of that age range. In my view, you were certainly old enough to appreciate the utter wrongness of your actions. Those actions were cruel, ruthless, predatory and prolonged no matter your age. They continued over years. Over and over you subjected your younger sister to violent, degrading and often painful sexual assault to the extent that to this day, she continues to suffer from its physical effects. Your capacity to appreciate its long‑term psychological impact I accept may have been limited by your age and immaturity, but not your ability to perceive her ongoing and evident distress and pain.[25]
[25]Ibid [68].
The applicant also fastens onto the sentencing judge’s finding that notwithstanding the applicant’s age at the time of this offending, the objective and moral culpability of the offending was high.[26]
[26]Ibid [72].
Far from showing that her Honour failed to apply the relevant principles, these passage and findings show that she actively grappled with them.
It was open to the sentencing judge to observe that it would have been obvious, even to a young and immature person, that the offending caused the complainant distress and pain. There was an abundance of evidence to support this:
•In relation to charge 2, the complainant ‘turned away and shut her eyes as she could not bear to look’.[27]
•The complainant made multiple overt attempts to resist the overall offending, including by pulling away, refusing to comply with the applicant’s demands, closing her mouth tightly to avoid penile‑oral penetration, and by repeatedly telling him ‘no’.[28]
•The complainant was crying or screaming in pain during some of the offending.[29]
•In relation to charge 6, the complainant screamed in pain when the applicant penetrated her anus with his penis; in response, the applicant placed a pillow over the complainant’s head to muffle her screams.[30]
•The applicant became increasingly demanding over time, and used physical force upon the complainant (such as pushing her head down on his penis).[31]
[27]Ibid [10].
[28]Ibid [14], [17].
[29]Ibid [29]–[32].
[30]Ibid [26].
[31]Ibid [14], [18].
Also, as the sentencing judge pointed out, the applicant fell within the ‘upper end’ of the age range for a child, especially for the later offending. For charges 6 and 7 he was 16 or 17 years of age, and for charge 8 he was 17 years of age. As he got older, the applicant’s offending escalated in gravity, progressing to anal and vaginal penile penetration.[32]
[32]Ibid [24]–[27], [29]–[32].
Despite the applicant’s age and relative immaturity, it was still well open to the judge to conclude that the applicant’s moral culpability for this abhorrent offending was high.
We are reinforced in our view that the sentencing judge approached the matter correctly by the level of sentences themselves. They bespeak of significant moderation. At the conclusion of the Reasons, the sentencing judge said:
In sentencing you of course I must take into account the fact that you were a child at that time. I must take into account the fact that serving a term of imprisonment now will be particularly difficult for you, and I do take that into account, and this sentence is very much moderated in the light of those factors …
I make the point again as I deliver these sentences, they are constrained in terms of length because of the factors that I have mentioned, in particular the lapse of time and the fact that you were a child at the time of this offending.[33]
[33]Ibid [79]–[80] (emphasis added).
Once it is accepted — as it must be — that the objective gravity of the offending was ‘extremely high’,[34] the sentences imposed were very modest. The only explanation for this is that they were ‘very much moderated’ by the fact that the applicant was a child at the time of this offending.[35]
[34]Ibid [64].
[35]Ibid [29].
We turn now to the applicant’s oral submissions that the sentencing judge conflated the applicant’s moral culpability in relation to the offending with his subsequent conduct of maintaining the lie to his family and police as an adult (which raised questions of remorse).
We agree with the respondent that this raises a new and different argument than the ground advanced in their written case. At any rate, there is no merit to the point.
In our view, the sentencing judge dealt with the issue of the maintenance of the lie (and the associated question of remorse) separately and distinctly from moral culpability.
It seems to us that her finding on moral culpability was anchored, not in his subsequent maintenance of the lie, but in the judge’s nuanced assessment of the egregious nature of the offending, as well as in the applicant’s knowledge of the wrongfulness of that offending. So much emerges from a fair reading of the sentencing remarks as a whole including the passage reproduced above at [39]. It is confirmed by her Honour’s concluding statement:
But ultimately the objective gravity and the moral culpability attached to your offending … have led me to the conclusion that only a term of imprisonment to be immediately served is appropriate in your case.[36]
[36]Reasons, [79] (emphasis added).
Error has not been established. Leave to appeal is refused on this ground.
Ground two: The sentencing judge erred in finding that the applicant did not demonstrate any remorse when assessing the weight to be given to the guilty plea
Applicant’s submissions
Initially in his written case, the applicant complained that the sentencing judge erred by giving no weight to the remorse component of the applicant’s guilty plea.
In support of this, the applicant points to her Honour’s statement that the applicant demonstrated only ‘partial remorse’ (by reason of the pretext conversation) and that he was entitled only to the ‘utilitarian benefit’ of his plea.[37]
[37]Reasons, [74]–[75].
Amongst other things, the applicant contends that his guilty plea demonstrated that he had not resiled from the remorse and sorrow shown in the pretext conversation. It was not open to the sentencing judge to give no weight to the remorse component of the plea.
At the hearing, counsel for the applicant enlarged this argument to contend that the Reasons should be read as effectively taking away any discount for remorse. That is, that the sentencing judge, it is now said, took no account of remorse despite the applicant’s acceptance of responsibility for the offending and expression of remorse during the pretext conversation.
Respondent’s submissions
The respondent submits that the sentencing judge’s finding that the applicant had not demonstrated anything beyond ‘partial remorse’ was readily explicable given the applicant’s denials during the police interview. Moreover, while the applicant displayed some remorse to the victim during the pretext conversation, this was ‘less than complete’.
Additionally, relying on Barbaro v The Queen; Zirilli v The Queen,[38] the respondent submits that the bare fact of a guilty plea will not always be sufficient to establish remorse. The respondent also asserts that the s 6AAA declaration made in this case demonstrates that significant weight was still accorded to the ‘utilitarian benefit’ of the guilty plea.
Analysis
[38](2012) 226 A Crim R 354, 364 [35] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288 (‘Barbaro’).
A useful starting point is to outline what the sentencing judge said on this issue:
I have not been presented with anything other than partial remorse for your offending. It is clear that when confronted by your sister personally with no one around, you were prepared to offer some expression of remorse, or apology for what you did. However, it seems to me that as soon as your own personal situation was threatened, that is when you were confronted by police, you perpetuated that appalling lie.
You are entitled to the utilitarian benefit of your guilty plea but it should attract no further discount. I do take into account that by your plea you have saved the victim the trauma of undergoing the giving of evidence and cross‑examination. You have also saved the community the time and expense of a trial.[39]
[39]Reasons, [74]–[75] (emphasis added).
The argument that the sentencing judge gave no benefit for any remorse at all is simply untenable. That argument flies in the face of the plain language used by her Honour.
It is clear that while the sentencing judge accepted that the applicant had shown ‘partial’ remorse at the time of the private pretext conversation with the victim and that there were utilitarian benefits attributable to the plea of guilty, she was not satisfied that the plea was demonstrative of genuine remorse. The real question under this ground is whether it was open to the sentencing judge to find that the plea was not demonstrative of genuine remorse. We think it was so open.
An offender wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine remorse. This is a question of fact and a matter of judgment for the sentencing judge. While remorse can be inferred from a plea of guilty, it does not automatically attach to the entry of a plea of guilty.[40]
[40]Barbaro 226 A Crim R 354, 364 [35] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.
The sentencing judge accepted that the applicant privately apologised to the victim in the pretext conversation in November 2021; that he ‘regretted it’, and that he ‘wished [he] could take everything back’.[41] He said he ‘did not remember half of it’.
[41]Reasons, [38].
The applicant denied the offending to his parents and told his family that it was consensual.
The applicant then made a decision to deny to police the extent and gravity of his offending. In his prepared statement, the applicant stated that he had never engaged in vaginal intercourse with the complainant, that the offending was confined to a ‘handful’ of occasions, and that ‘none of it was forced’. He downplayed the duration of the offending (in saying that it went for over a year or two) as well as his age at the time of the offending (stating that he was aged between 14 and 15 and stopped the offending when he was 16).
As the sentencing judge said, ‘this statement contained a number of untruths’.[42]
[42]Ibid [41].
Thus it was open to the sentencing judge to find, as she did, that the only real remorse which the applicant expressed was to the complainant, in private. By contrast, his police interview was motivated not by the need to publicly acknowledge his guilt and shame but by self‑preservation or self‑interest.
In argument before us the applicant’s counsel acknowledged that the only material relied upon at the plea hearing which was said to evidence remorse was the pretext conversation. As we have said, this conversation pre‑dated the plea by some years. It took place in private and was superseded by his self‑interested statement to police. The pretext conversation could not support an inference of remorse from the plea itself. It was clearly open to the judge to reach the conclusion that the plea itself carried no genuine remorse.
This ground must fail. Leave to appeal is refused.
Ground three: The sentencing judge gave undue, and disproportionate, weight to the contents of the victim impact statement in the determination of the instinctive synthesis
Applicant’s submissions
The applicant relies on the principles from R v Skura that a VIS must not ‘swamp’ or ‘overwhelm’ the sentencing process so as to risk unbalancing it.[43] It is submitted that the sentencing discretion miscarried as the VIS appeared ‘disproportionately’ in the Reasons such that it was elevated to such an extent, and had such a profound impact on the judge, that an imbalance between the interests of the complainant and sentencing considerations arose.
Respondent’s submissions
[43][2004] VSCA 53, [13] (Eames JA).
The respondent submits that the sentencing judge did not give undue or disproportionate weight to the VIS, noting that the majority of the paragraphs of the Reasons relating to it were a summary of its lengthy contents.
Moreover, the respondent places reliance on the legislative regime[44] as well as the authorities[45] regarding the proper and legitimate weight to be given to a VIS. These support the sentencing judge’s consideration of the ‘important role’ that the VIS would play in her Honour’s assessment of the objective gravity of the offending and the applicant’s moral culpability.[46]
Analysis
[44]Sentencing Act 1991, ss 5(2), 8K.
[45]Gray (a pseudonym) v the Queen [2018] VSCA 163, [53] (Priest, Beach and Niall JJA); R v Skura [2004] VSCA 53, [12]–[13] (Eames JA); Vincec v the Queen [2018] VSCA 18, [60] (Weinberg JA).
[46]Reasons, [67].
We do not think the sentencing judge was overborne by the VIS in this case.
We agree with the respondent that the judge was doing no more than making legitimate use of the VIS in determining the sentence in accordance with the statutory requirements.[47]
[47]See Sentencing Act 1991, s 8K(1) which provides that, if a court finds a person guilty of an offence, a victim of the offence may make a statement to the court for the purpose of assisting the court in determining sentence. Further, pursuant to ss 5(2)(daa)–(db), a sentencing judge must have regard to ‘the impact of the offence upon any victim’, ‘the personal circumstances of any victim’, and ‘any injury, loss or damage resulting directly from the offence’.
It is true that the VIS loomed large in her Honour’s Reasons. That is unsurprising, given its length and importance. The VIS in this matter ran to some 13 pages. It was read by the complainant personally upon the plea. The impact upon the complainant of this offending was profound and lasting. It was important that the full impact upon her ‘neither be overlooked nor undervalued’.[48]
[48]Gray (a pseudonym) v The Queen [2018] VSCA 163, [53] (Priest, Beach and Niall JJA).
It is a mischaracterisation to suggest, as the applicant does, that the Reasons were disproportionately pre‑occupied with the impact upon the complainant. The substantive Reasons ran for 80 paragraphs, some 13 of which were dedicated to summarising the VIS. The Reasons were of course punctuated with other references to the impact upon the complainant. But these references were largely made within the context of assessing issues such as objective gravity, moral culpability, and the pretext conversation. This was all unremarkable.
The sentencing judge was also alive to the need to avoid placing too much emphasis on the impact of the offending: she specifically cautioned herself about this in the Reasons.[49]
[49]Reasons, [67].
We think the sentencing judge’s treatment of the impact on the victim in this case was consistent with the legislative policy that sentencing is to be undertaken with regard to the victim, as well as the offender.
The ground is lacking in merit. Leave to appeal is refused.
Ground four: The individual sentences, orders for cumulation, non-parole period and total effective sentence are manifestly excessive
Applicant’s submissions
It is submitted that the applicant could call on a ‘significant constellation of mitigating factors’ which were not reflected in the sentences imposed, leading to a manifestly excessive sentence. Those factors are:
(a)his guilty plea;
(b)he was a child at the time of the offence;
(c)he has no prior convictions;
(d)it has been 24 years since the last offence occurred;
(e)he has no subsequent or pending matters;
(f)he has a stable and productive employment history;
(g)he is an involved father to a young child; and
(h)this would be his first term of imprisonment.
Moreover, the applicant submits that his is a ‘most unusual case’ in that aside from the serious offending in question, he has otherwise led a ‘blameless, pro‑social and productive life’, and was further entitled to a substantial discount in respect of his guilty plea.
In oral submissions, counsel for the applicant developed this submission. It was submitted that the applicant took responsibility for his conduct rather than allowing the matter to proceed to trial, where the prosecution may have been unable to meet the evidentiary burden. The sentencing judge failed to reflect this in the sentence ultimately awarded.[50]
Respondent’s submissions
[50]Should the applicant fall to be re‑sentenced, documentation from the Department of Justice and Community Safety and four certificates of completion obtained during his period of incarceration were tendered in support of the applicant’s submission that he should be re‑sentenced on a non‑custodial basis. The Department’s documentation verifies that the applicant is not required to be involved in forensic intervention for sex offending.
While the respondent accepts that the applicant could rely on significant matters in mitigation, they submit that the sentencing judge struck an appropriate balance between these factors and what was accepted to be extremely serious offending.
The respondent submits that the offending was accompanied by many aggravating factors, including:
(a)the complainant’s lack of consent and active resistance;
(b)the prolonged nature of the offending (both the overall time period in question and the length of the acts of penetration);
(c)the age of the complainant (being 12 to 14 years old at the time of the offending);
(d)the offending having occurred in the complainant’s home;
(e)the use of threats and coercion in the offending;
(f)the brazen nature of much of the offending, including specifically the conduct the subject of charges 5 and 8; and
(g)that the applicant persisted with the offending despite being aware that he was causing the complainant pain.
In the light of those factors, and the sentencing judge’s findings about the objective gravity of the offending, the sentences imposed were well within the available range.
Analysis
In order to succeed on the ground of manifest excess, it must be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge. This is a stringent requirement, and is difficult to satisfy.[51]
[51]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
It cannot be gainsaid that the respondent had a number of significant factors in mitigation, mostly stemming from the fact that this was historical offending committed when he was child some 24 years prior to sentence. He also stood to benefit from the utilitarian value of his plea of guilty. The sentencing judge expressly took these matters and the applicant’s personal circumstances into account.[52]
[52]Reasons, [75], [77], [78], [79]. The sentencing judge was also clearly aware of the applicant’s personal circumstances, including his stable employment history and young child: [56], [58]–[59].
On the other hand, these matters had to be balanced against the seriousness of the offending reflected in the sentencing judge’s conclusion that the applicant’s moral culpability was ‘high’,[53] the nature and gravity of the offending was ‘extremely high’,[54] and that it was ‘a serious example of such offending’.[55]
[53]Ibid [72].
[54]Ibid [64].
[55]Ibid [72].
These findings reflect the aggravating features listed in the respondent’s submission above, including the fact that the offending was prolonged, accompanied by acts of violence, committed in the face of the complainant suffering demonstrable pain and distress, and escalated in seriousness.
In the plea hearing, her Honour — a very experienced criminal trial judge — described the offending as ‘one of the gravest examples of fraternal incest’ that she had encountered. The applicant’s plea counsel agreed, stating he did not intend to argue otherwise and acknowledging ‘it is, on the face of it, extremely serious offending’.
While general deterrence was moderated, it was far from eliminated, and continued to have a role to play in the sentencing considerations, alongside public denunciation.
For such grave offending, the sentences imposed were moderate, and the orders for cumulation were extremely modest. Four of the charges were rolled up, justifying higher sentences, though even those sentences bespeak of restraint.
We think the mitigatory factors — including a significant reduction for the utilitarian value in the plea of guilty — were fully reflected in the sentences imposed.
In our view, the sentences were well within the range open to the judge in the sound exercise of her sentencing discretion. Leave to appeal is refused.
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