Beyer v The Queen [2011] VSCA 15

1 I will ask Harper JA to deliver the first judgment.

2 On 28 August 2009, Nettle JA granted the appellant's application for leave to appeal against a total effective sentence of nine years and four months' imprisonment, with a non-parole period of six years, imposed upon the appellant after he had pleaded guilty to 15 counts of unlawful and indecent assault on a male person, six counts of gross indecency, one count of indecent assault on a female, seven counts of indecent assault, one count of sexual penetration of a child between the ages of 10 and 16 years and one count of attempted buggery. The offences were committed between 1973 and 1985.

3 The appellant, who was born on 15 October 1941, was aged 32 when the offending commenced (in 1973 - 37 years ago) and 44 when, 12 years later, it concluded (in 1985 - 25 years ago). He will turn 70 in October this year.

4 On 26 September 2008, the appellant was sentenced as follows:

Unlawful and indecent assault of a male person (representative count - 6-12 acts)

5y (first offence), 10y (for each offence thereafter)

Unlawful and indecent assault of a male person (representative count - 4 acts)

5y (first offence), 10y (for each offence thereafter)

Unlawful and indecent assault of a male person (representative count - 2-7 acts)

5y (first offence), 10y (for each offence thereafter)

Unlawful and indecent assault of a male person (representative count - weekly act over 12 months)

5y (first offence), 10y (for each offence thereafter)

Unlawful and indecent assault of a male person (representative count - weekly act over 12 months)

5y (first offence), 10y (for each offence thereafter)

Unlawful and indecent assault of a male person (representative count - 5 - 6 acts)

5y (first offence), 10y (for each offence thereafter)

5y (first offence), 10y (for each offence thereafter)

5y (first offence), 10y (for each offence thereafter)

5y (first offence), 10y (for each offence thereafter)

Indecent assault of a female (representative count - 2 acts)

5y (first offence), 10y (for each offence thereafter)

Indecent assault (representative count - approx 30 acts)

Unlawful and indecent assault of a male person (representative count - 20 - 30 acts)

5y (first offence), 10y (for each offence thereafter)

5y (first offence), 10y (for each offence thereafter)

Unlawful and indecent assault of a male person (representative count - 5 acts)

5y (first offence), 10y (for each offence thereafter)

Unlawful and indecent assault of a male person (representative count - 5 acts)

5y (first offence), 10y (for each offence thereafter)

5y (first offence), 10y (for each offence thereafter)

5 Count 27 involves the most serious criminality, and was appropriately adopted by his Honour as the base sentence. On the occasion in question, that is the one involving count 27, the appellant twice attempted to penetrate, with his penis, the anus of an 11-year old boy. The first attempt caused the victim to bleed. Yet the appellant persisted.

6 The other counts involved masturbation, fondling, oral sex and (count 12) the digital penetration of the victim's anus. The sentencing judge found that the appellant had 'ruthlessly, and in an horrifically predatory way, exploited a large number of vulnerable young children who were in [his] care and control.' It was a finding with which there could be no quarrel. The offending itself, together with its impact upon its victims as described in one victim impact statement after another, left no room for any other conclusion.

8 Ground 1 is that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

9 Ground 2 is that the sentencing judge erred in failing to place any or any sufficient weight upon the appellant's age, his ill health, the delay between the commission of the offences and the passing of the sentence, and the facts that -

(b) the appellant had successfully completed a Sex Offenders' Program when in custody in 1996 for offences which occurred after the offences with which the Court is now concerned; and

10 Ground 3 is that, in the circumstances of this case, the sentencing judge erred in undervaluing the matters going in mitigation because of the overwhelming effect of the impact of the offending upon its victims.

11 In all, the appellant pleaded guilty to 31 sexual offences, ranging from indecent assault to sexual penetration. There were 12 victims, all children. Their ages ranged between four and 13 years. Five of the victims were wards of the state with whom the appellant came into contact in his role as a volunteer at the Bayswater Boys' Home (run by the Salvation Army) and the Tally-Ho Boys' Home in Burwood. Another group of victims were neighbouring children - two boys and a sister of one of them. The final group of victims were children associated with a junior basketball team which competed in the Kilsyth Basketball Association. In 1984, the appellant became a coach of that team. Four of his victims were members of it.

12 It was the Crown case that the appellant deliberately groomed his victims, or at least many of them, before enticing them to participate with him in the acts which constituted the offences. His methods included the payment of money, the provision of weekends away from the boys' homes, provision of alcohol and cigarettes and the showing in some cases of pornographic videos and magazines. Some victims, according to the Crown, were provided with money, alcohol and cigarettes (or a combination of these) not merely in return for their involvement in the offences, but also in return for their silence.

13 The appellant was sentenced as a serious sexual offender on all counts except counts 2, 8, 9, 13, 14, 27 and 30. In imposing a sentence of imprisonment on each of the remaining counts, the sentencing judge was obliged to regard the protection of the community from the offender as the principal purpose for which the sentence was imposed: Sentencing Act 1991, s 6D(a). The sentencing judge was also obliged to have regard to s 6E of that Act, which provides that every term of imprisonment imposed by a court on a serious sexual offender for a sexual offence must, unless otherwise directed by the Court, be served cumulatively on any sentence or sentences of imprisonment imposed on that offender at the time he or she is sentenced for a sexual offence.

14 This provision gives effect to a legislative policy that serious sexual offenders are in a special category of offenders. One aspect of that policy is that the scope for applying the principle of totality must be more limited than it is in cases not falling within s 6E. Another is that, although the judge has a discretion to direct that sentences to which the section applies operate concurrently rather than cumulatively, the object of the provision is to ensure that sentences are cumulative unless there is good reason why they should be served concurrently. And, as McHugh, Gummow and Hayne JJ observed in their joint judgment in R v RH McL:[1]

... the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. ... [S]entencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.

15 Given the number of victims and the nature of the offending, cumulation was in my opinion warranted. It also seems to me that the principle of totality was, in the light of R v RH McL, correctly applied by his Honour. In this context, I note that the sentencing judge modified the full effect of s 6E while taking into consideration both that provision and the need to avoid a crushing sentence.

16 A third aspect of the policy that serious sexual offenders are in a special category is that the protection of the community is to be regarded by the sentencing judge as the principal reason for which the sentence is imposed: Sentencing Act 1991 s 6D(a). In this case, however, his Honour accepted that 'the likelihood of [the appellant] re-offending is extremely remote.' Accordingly, this factor, while it must be taken into account in the way that Parliament intended, is nevertheless not as significant as it would be in other circumstances.

17 On the other hand, counts 1-5, 7-9, 13-15, 18, 19, 21, 23, 25 and 28-30 (19 out of 31) are representative counts. When the criminality of these is assessed against all the relevant circumstances, an appropriate adjustment must be made to reflect that criminality. All other things being equal, this will result in a heavier sentence for the particular representative count than would be the case with a single incident offence.

18 The multiplicity of representative counts reflects the fact that the appellant was a predator. He ingratiated himself with those in charge of the Bayswater and Tally-Ho Boys' Homes by purporting to be a kind and concerned adult willing to assist vulnerable wards of the State. He asked for, and was placed in, positions of trust. He betrayed that trust, as he did as a basketball coach and as a neighbour.

19 When these considerations are placed alongside his grooming of his victims, the depth of his criminality begins to emerge. But there are other aggravating features of his behaviour. I have already noted that his offending continued for 12 years, and involved 12 children aged between four and 13. He was more than two decades older than the youngest of them. He was aware that his behaviour was unacceptable, and accordingly warned his victims against any disclosure of his offending. He continued on several occasions to violate his victims despite their distress and protests. The catalogue of his crimes, as outlined in his Honour's sentencing remarks, is horrendous. And the effect on his victims reflects this fact. It was, for most if not all of them, devastating.

20 In these circumstances, and putting aside for the moment the mitigating factors to be examined under grounds 2 and 3, it cannot be said that the individual sentences, the total effective sentence and the non-parole period each fall into the impugned category. In my opinion, there is nothing in his Honour's exercise of his sentencing discretion which is indicative of error. Adherence to the principles laid down by the High Court in House v The King[2] requires this Court to refrain from interfering with the exercise of that discretion. Looked at in the light of the appellant's criminality, ground 1 must therefore fail.

21 There were, nevertheless, mitigating factors. His Honour was bound to give them appropriate weight. The appellant complains that he did not do so. In particular, the appellant submits that the sentencing judge erred in failing to place any or any sufficient weight upon the appellant's age and ill health, on the delay between the commission of the offences and the passing of sentence, and on the facts that there has been no offending since 1992, and that the appellant has successfully completed a Sex Offenders' Program and is now rehabilitated.

22 His Honour's sentencing remarks were careful and thorough. He examined each of the points made in mitigation. He described them in detail, and obviously took them into appropriate consideration. The assertion that his Honour failed to give any weight to any of these matters is therefore, in my opinion, no more than a rhetorical flourish. One may turn by way of example to paragraph [81] of the sentencing remarks, where his Honour said:

I am required to take into account the effect of delay and, if the delay has been long, as in this case, whether and how you have changed in that time. I am required to sentence you as you are now, not as you were then, that is, I am required to take into account the fact that you have undergone extensive rehabilitation and, on the evidence of an experienced and respected forensic psychologist, you are no longer a paedophile. I am required as a matter of principle to take into account the state of your health, if it impacts adversely upon the circumstances under which you will serve your sentence, together with your age. All these matters must be balanced by me in the difficult sentencing exercise which confronts me.

23 To say that the sentencing judge failed to give sufficient weight to any of the other matters listed in ground 2, is also in my opinion incorrect. For example, at paragraphs [95] and [96] of his sentencing remarks, his Honour said:

There has been a long delay between the offending and now. Delay is problematic in cases such as this. As has been observed by the Courts, delay is not uncommon in this type of case because victims are often loath to come forward. The real importance of delay, it seems, is what has occurred during the period of the delay. The principles that I must apply in this context ... were stated by Callaway JA in R v MWH [2001] VSCA 196 at [18] ...:

'It is the effects of delay that are important for sentencing. As in R. v. Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed

In my view, these principles concerning delay are clearly applicable in your case. In a long delay that has occurred, you ... have already been sentenced in relation to similar offences a decade ago and have undergone comprehensive rehabilitation to the extent that, on the evidence before me, which I accept, you are no longer diagnosable as a paedophile and you are unlikely ever to re-offend. The delay is also important in your case because, on the evidence, during the period of delay you have developed victim empathy and a genuine remorse. Thirdly, the delay is important in your case because you are now a man in your 60's. That means that, in my view, you are less likely to re-offend. Also, you are now suffering a level of ill health. However, in the circumstances of this case, whilst I regard your state of health as being a relevant factor, I do not regard it as a significant factor by any means, in reducing sentence. There is no evidence before me that your state of your health will be likely to render your imprisonment any more harsh than it would be for the ordinary healthy prisoner or that you are likely to suffer any aggravation of your illness by virtue of your incarceration. However, I do take it into account as being a difficulty that will mar your period in gaol. It is a matter that is to be given some weight by way of mitigation, but not a great deal in the circumstances of this case. So, I take into account the delay and am cognisant of what the Courts have said ... about the measure of understanding and flexibility that must be applied in cases where there has been a significant time between offending and sentence.

24 These paragraphs serve as examples of what in total amounted to an exemplary sentencing process. In sentencing remarks covering some 34 pages and 105 paragraphs, the sentencing judge covered every relevant topic in detail. There can in my opinion be no doubt that his Honour gave appropriate weight to the mitigating factors of age, health and delay. He also took properly into account the fact that the appellant has not offended since 1992, and that following the successful completion of a sex offenders' program, he is now rehabilitated.

25 His Honour was, however, required to balance these considerations against the very serious criminality of the offending behaviour. It was perpetrated against very young children on multiple occasions over a 12 year period. It involved grooming, and breach of trust. Were it not for the appellant's age, and his rehabilitation, a greater degree of cumulation and hence a higher total effective sentence would have been necessary.

26 During the hearing of the appeal in August 2010, it was submitted that, given some indication that the appellant's health had deteriorated since sentence was pronounced, new facts and circumstances warranting a fresh exercise of the sentencing discretion might have arisen. The hearing of the appeal was adjourned to give the appellant an opportunity to present any relevant evidence.

27 In the intervening period two further affidavits, one sworn by the appellant himself and one by his solicitor, have been filed on his behalf. In supplementary submissions in response, the Crown objected to their reception. Before ruling on the objection, the Court is prepared in the first instance to examine the fresh evidence on the assumption that it is admissible.

28 Much of it does not, as the Crown submits, throw any new light on the state of the appellant's health as it was at the time when sentence was pronounced on 26 September 2008. For example, the appellant on his reception into custody on 8 September that year reported that he had undergone a trans urethral resection of a bladder tumour, and had been diagnosed with transitional cell carcinoma of the bladder in 2007. It is against this background that, in his sentencing remarks, his Honour made the observations which I quoted above at [22].

29 It is therefore plain that, at the date of sentence, it was anticipated that the appellant would require further medical treatment. Indeed, on 5 February 2009 he was admitted to St Vincent's Hospital. He underwent a flexible sigmoidoscopy and twelve days later, he was re-admitted for a cystoscopy and a biopsy of his bladder to determine whether he had carcinoma in situ. There followed appointments as an outpatient at the urology department where he had a six cycle course of BCG therapy. The first of these was on 5 April, and the last on 17 May. In 2010 he underwent further urological treatment and will have further follow-up visits to

30 The appellant now complains that his hospital treatment takes him away from his cell at Ararat Prison. He wishes to avoid that inconvenience in the future, and as a result refused to attend scheduled health service or clinical appointments on five occasions last year. More particularly from his point of view, the process of transfer from Ararat for treatment has rendered his imprisonment more harsh than would be the experience of an able-bodied prisoner.

31 I have some sympathy for the appellant. Nevertheless, his general situation was foreseeable at the time of sentence, and it was not put to his Honour that transfers from one prison to another, or from prison to hospital, would be particularly burdensome for the appellant. Nor is it said now that the problem exacerbates his condition. It is put no higher than the process is very disruptive of a normal prison existence.

32 These, however, are matters for other authorities than the courts. Were difficulties of the kind experienced by the appellant to ground a review of a sentence, the courts would be required to investigate matters within the executive sphere which they are not equipped to do. In my opinion, the evidence sought to be tendered does not warrant any interference with the sentences already pronounced.

33 In my opinion, each of the three grounds of appeal must fail for the reasons I have endeavoured to articulate. The appeal must therefore be dismissed.

34 I agree with Harper JA for the reasons which his Honour has given.

36 The order of the Court will be that the appeal be dismissed.

[1] [2000] HCA 46; (2000) 203 CLR 452, 477 [76].

[2] [1936] HCA 40; (1936) 55 CLR 499.