Blair v The Queen [2014] VSCA 175

CRIMINAL LAW - Sentence - Sexual offences - Incest - Complainant applicant's step-daughter - Applicant pleaded not guilty - Convictions on two counts related to one incident when complainant 15 years old - Sentencing judge imposed 10 years total effective sentence with 8 years non-parole - Crown conceded sentence manifestly excessive - Applicant re-sentenced to 7 years total effective sentence with 5 years non-parole.

1 I have had the advantage of reading in draft the reasons prepared by Whelan JA. I agree with those reasons and with the orders proposed.

2 The applicant was charged with seven counts of incest and two counts of committing an indecent act with a child under 16 years. He pleaded not guilty and the matters went to trial. The trial judge directed the entry of verdicts of not guilty on the two indecent act charges. The seven incest charges went to verdict. The jury returned majority not guilty verdicts on five of the incest charges and unanimous guilty verdicts on two of them. The judge sentenced the applicant to eight years' imprisonment on each of the two incest convictions with an order that two years on one be served cumulatively with the sentence on the other, making a total effective sentence of 10 years. She fixed a non-parole period of eight years.

3 The applicant seeks leave to appeal his convictions on the ground that the guilty verdicts were unreasonable and cannot be supported having regard to the evidence and to the not guilty verdicts on the other five incest charges.

4 The applicant also seeks leave to appeal his sentence. It is of course only necessary to consider that application in the event that his application for leave to appeal his convictions, or the appeal if leave is granted, fails. There are a number of grounds upon which the applicant seeks leave to appeal his sentence, including the ground that the total effective sentence and the non-parole period are manifestly excessive. The prosecution concedes that the total effective sentence is manifestly excessive.

5 The person against whom the offences were allegedly committed is the stepdaughter of the applicant. She gave evidence of a sexual relationship, involving vaginal intercourse, anal intercourse, oral sex and other sexual activities, occurring

on numerous occasions from before she was 12 years old until she was 16. According to her account of events the first act of intercourse occurred when she was 12 years old, but she said that there were sexual incidents before then.

6 The complainant's evidence was that she consented to, and often initiated, sexual activity between herself and the applicant. On her account of events sexual activity occurred on a frequent and regular basis. In the course of her evidence she described many such incidents, some of which were the subject of charges and some of which were so-called 'uncharged acts'. Generally, her ability to fix the time of particular incidents, or to place them in a temporal context, was very limited. Sometimes she could place incidents in sequence, in other words this happened before that, but rarely, with one potentially important exception, could she relate particular incidents to any external verifiable event. These limitations in the complainant's evidence were heavily relied upon by the defence during the trial. Another important aspect of the defence case was reliance on what was said to be the fantastic and incredible nature of the sexual activities which the complainant described, and of the circumstances in which she said they had occurred, in particular, circumstances which involved a high risk of observation by others.

7 The prosecution relied upon the complainant's evidence and also relied upon two recorded conversations between the complainant and the applicant in which, it was alleged, the applicant made relevant admissions. These conversations were recorded at the instigation of the police and were generally referred to as the 'pretext' calls or conversations.

8 As the complainant's ability to place the incidents she says occurred into a timeframe was itself controversial, I will identify the relevant incidents by reference to the sequence in which they were addressed by the applicant's counsel in his final address at the trial.

9 The complainant said that the first act of intercourse between her and the applicant occurred when she was 12 years old on an occasion when her brother had been sent by the applicant to a local milk bar with money given to him by the applicant. This incident was the subject of charge 1. The complainant's evidence was that there had been two incidents before then, one in which the applicant had inserted his big toe into her vagina while they were sharing a bath and another in which she had performed oral sex on the applicant while he was asleep on a fold out couch.

10 The two incidents which were the basis for the indecent act with a child under 16 charges (charges 2 and 4), in relation to which directed acquittals were entered, each concerned the applicant masturbating in the complainant's presence. The complainant's evidence as to timing, even if accepted, could not found a conclusion beyond reasonable doubt that she was under 16 at the time.

11 The first occasion upon which the applicant said that anal sex occurred was in an incident which was the subject of charge 3. On the complainant's evidence this incident occurred during the daytime while she and the applicant were in the house and while her mother was in the front garden.

12 The complainant said that she and the applicant would often engage in what the other family members, being her mother and her younger brother, were told was a 'hug' or a 'cuddle' in or on her bed, when in fact they were having sex. The applicant described one occasion when her mother had interrupted them and stood at her bedroom door talking to them without apparently realising what was occurring. They were in what the complainant referred to as a 'spooning' position. This incident was one of the uncharged acts.

13 Incest charges 5 and 6 were occasions of oral sex and intercourse which the complainant said occurred whilst she and the applicant were riding bikes through what was then the outer suburbs of Geelong in 'training' for a bike camp which the complainant said she attended when she was in year eight at school.

14 Charge 7 concerned an incident in the applicant's car. The complainant maintained that she was having oral sex with the applicant whilst he drove, an activity which she said was commonly performed by them, and that the applicant deliberately allowed a motorcyclist to watch what was occurring and that he exposed the complainant's vagina to the motorcyclist whilst it was occurring. This was referred to as the 'motorcyclist incident'.

15 The complainant described other sexual activity involving the applicant's car, in addition to the motorcyclist incident, including one where she placed a club lock in her vagina. These were uncharged acts.

16 Charges 8 and 9 concerned an act of intercourse on a coffee table in the lounge room. The complainant said she had an apple in her mouth, imitating something she had seen in a pornographic film. After intercourse the applicant was said to have rubbed the complainant's clitoris while she was lying on the lounge room floor. This was referred to as the 'coffee table incident'.

17 Other uncharged acts were described by the complainant involving the use on one occasion of what the complainant was told was a dildo belonging to her mother, wearing red lingerie which belonged to her mother, being shown a video depicting her mother performing oral sex, and being shown other pornographic films.

18 The complainant also described an incident in which, after her mother and her younger brother had gone to visit her mother's parents at Derrinallum, she had dressed in an old primary school uniform before having sex with the applicant all that day while her mother and brother were away. She also described incidents involving the use of a lollypop, and incidents which occurred in the shed at their home. These were all uncharged acts.

19 The pretext calls were particularly relied upon by the prosecution. It is necessary to address their contents in some detail.

20 In September 2010 the complainant rang the applicant at the instigation of the police twice. The calls were recorded without the applicant's knowledge.

21 The complainant left the home of the applicant and her mother when she was 18 and went to live with her father, eventually moving interstate. The pretext calls were made when the complainant was living interstate.

22 In the first call, after an initial exchange of pleasantries, the complainant began asking how the applicant felt about their relationship. Eventually the complainant prompted him by an express reference to their sexual relationship in response to which the applicant said: 'Oh, oh, that?'

23 In response to a suggestion by the complainant that he had sexually abused her the applicant said: 'I didn't sexually abuse you at all, [diminutive of complainant's first name].'

24 The complainant suggested to the applicant that she had lost her virginity to him when she was 12 years old. The applicant denied that.

25 The applicant asked the complainant what she was trying to suggest and asked her whether she was suggesting that he had 'monstered you or something'.

[COMPLAINANT]: So we never had sex? Is that what you're saying?

[APPLICANT]: Not, not properly, no.

27 When the complainant made accusations to him about particular incidents, the applicant responded by asking her what it was she was doing or what answer she was expecting to get.

28 In response to a suggestion that they had had vaginal sex when she was 12 years old, the applicant responded: 'A hundred per cent, a hundred per cent no, [diminutive], I'm telling ya.'

29 The applicant suggested to the complainant that from a period prior to when she had left home she had started 'turning on me'.

30 It is apparent from this first conversation that the complainant's mother was present with the applicant whilst he was talking, or was nearby. The complainant suggested that the applicant should move to another room but he said that he could not. The complainant and the applicant then arranged to speak again a few days later.

31 A few days later, as arranged, the complainant rang the applicant again. In this conversation the applicant was more expansive.

32 The applicant was very concerned to emphasise that he had never pressured the complainant. He said:

I never, I never hunted down, forced, pressured or anything like that, [diminutive]. Right, and, you've got your dates mixed up.

33 As to 'dates', the applicant repeated a number of times an account of an incident which he said had happened in the shed. Relevantly, what he said happened was this: 'And you come up to me and you said, If I wasn't 13 would you F me?'

34 The complainant said that she did not remember that but said that she did not deny that it happened. The applicant makes it clear that the reason he was referring to that story was to demonstrate to the complainant that it could not be true that they had first had intercourse when she was 12. Later, the applicant said: 'Well, there, there was instances where you're older, right?'

35 The applicant asked the complainant a number of times if she was trying to have him sent to jail and the complainant asked why he was concerned about going to jail if there had been nothing wrong in what they had done. The applicant said that he was not saying that there was nothing wrong. He then continued:

[W]hatever happened, [diminutive], I never hounded you, pressured you or anything like that, [diminutive].

36 Referring to the earlier conversation, the applicant said that he could not say 'a thing' that day. The following interchange then occurred:

[COMPLAINANT]: So you can, well, you can open up to me now.

[APPLICANT]: Yeah, I did have feelings for you.

[COMPLAINANT]: And how old, do you know how old I was 'cause I, obviously I can't remember.

[APPLICANT]: Yeah, I know, I know early, [diminutive], that you were highly sexual, right?

[COMPLAINANT]: What do you mean by that?

[APPLICANT]: Well, you were, you were highly, a highly sexually charged person, right?

37 The complainant asked the applicant how many times he had tried to stop what was happening and he replied 'a lot'. He said that many times 'early' he had been trying to say 'No' and he emphasised again that he 'never, ever pressured you'.

38 The applicant then referred to the complainant's conduct, saying:

How many times were you doing stuff to me opposite the rooms and, you know, rubbing groins under the table and stuff like that?

39 A reference was made by the complainant to the first time they had had anal sex and as to whether the complainant had felt under pressure to do it.

40 As the conversation continued, both parties became audibly upset. The following interchange occurred:

[APPLICANT]: No, and I don't think I had S-E-X with you when you were a child, [diminutive].

[COMPLAINANT]: When do you, how old was I, then, at the start when it first started?

[APPLICANT]: Well, you, you may have been under 16 but you weren't a child. You were 15.

[COMPLAINANT]: When, I was 15 when we first had sex?

[APPLICANT]: Yes.

41 Towards the end of the conversation, the applicant directs considerable effort towards attempting to persuade the complainant not to tell her counsellor about their relationship because he would go to jail 'for 20 years' and family members would be affected. The applicant said that he felt bad for everything that had happened, that he was not blaming her, that he was an immature adult, that he had 'fucked up', and that he was not proud of anything that had happened. He emphasised that 'I didn't chase you or abuse you'. He said that he was sorry. He said: 'I held off ... for a long time, [diminutive].' And: '[I]t was a long time before anything happened.'

42 As well as reading the transcripts several times, I have listened to the calls. For present purposes, it suffices to say that what the applicant said in those calls is open to be interpreted as an admission that the applicant and the complainant were in a sexual relationship when the complainant was 15 years old. More particularly, what the applicant said in the calls is open to be interpreted as an account of their relationship whereby the complainant had been 'highly sexually charged', that she had attempted to initiate sexual relations with him including a specific request for intercourse when she was 13 years old, that he had held off for a long time, that he had never pressured or forced her to do anything, but that he had eventually relented, and that they had had a sexual relationship commencing when she was 15 years old.

43 The applicant did not give evidence. The defence case concentrated on undermining the credibility of the complainant and also relied heavily upon the evidence of the complainant's mother, the applicant's wife, who was called by the prosecution.

44 In the course of cross-examination counsel for the applicant put to the complainant that there had never been vaginal or oral sex between her and the applicant, and that her evidence of the various uncharged acts, as well as her evidence about occasions of intercourse were all entirely 'made up'. But he also put to her, reflecting what the applicant had said in the pretext calls, that she had been 'a highly sexually charged person', and that there were occasions from when she was 'about the age of 13' when she would rub the applicant's groin under the table, pull down her pants and masturbate in front of him and 'flash' herself at him. It was put that the applicant had done nothing to initiate or encourage this behaviour and that she had continued in it knowing that he had not told her mother what was happening. It was put to her that the only occasion when there was any sexual act between them was at a time when she was 15 years of age when he awoke to find her giving him oral sex, and that he then told her to desist (not in those words).

45 Generally, whilst the complainant admitted that she had initiated sexual encounters from time to time and that there had been behaviour by her such as 'flashing' and rubbing under the table, she denied that this was something done without the applicant's active participation.

46 In cross-examination counsel for the applicant particularly focused on as the motorcyclist incident (charge 7), the suggestion being that her account of that incident was especially unbelievable. Photographs of the street upon which the incident was said to have occurred were tendered on behalf of the defence.

47 When cross-examined about the uncharged acts when her mother and younger brother had gone to Derrinallum, the complainant confirmed that that trip had been taken in a Tarago. It was put to her that that Tarago had been purchased in November 2006, when she was 15 years old. Other evidence confirmed that the Tarago had been purchased then.

48 The complainant was cross-examined at length in relation to her inability to place a time upon the occurrence of the various incidents or to relate them to externally verifiable events. In that context, when asked about the coffee table incident (charges 8 and 9) the following interchange occurred:

Are you able to date this incident in terms of whether you were 12, 13, 14, 15 or 16? - - - I was in high school.

You were in high school, so you were 13, 14, 15 or 16? - - - Yes.

Other than that, are you able to date this particular incident? - - - No.

Again, with all of those external factors and I won't go through them all, are you able to say in relation to some objective specific event, or a time, or season, are you able to help the members of the jury, as to when this happened? - - - No.[2]

49 Later, when being asked about the uncharged act involving what was said to be the mother's dildo the following interchange occurred:

Are you able to say whether this incident occurred in relation to any other incident which you've given evidence on by way of the charged acts or the uncharged acts? - - - I believe this happened after the time that my mum and my brother went to Derrinallum and before the time that I had sex with [the applicant] on the coffee table with the apple.

Are you able to say whether you were 13, 14, 15 or 16? - - - No.[3]

50 The suggestion that there was sexual activity on her part but not on his was put to her more than once.

51 The evidence of the complainant's mother had a number of potentially relevant features in the present context. She was called by the prosecution.

52 She described the relationship between the complainant and the applicant as 'beautiful' and 'very close' until the complainant 'just evolved into this other person'. In cross-examination by counsel for the applicant she was asked about the very difficult relationship which existed throughout the complainant's childhood between herself and the complainant's natural father, her ex-husband.

53 The complainant's mother denied ever noticing anything of a sexual nature between the complainant and the applicant and, went further, giving evidence the effect of which was that aspects of her daughter's evidence could not be true. In that context, she denied ever owning a dildo, ever being the subject of a pornographic film, ever keeping any old primary school uniforms, or ever visiting Derrinallum without her daughter. She said that she and her daughter would visit Derrinallum where her own parents lived 'probably' twice a month. There were other specific incidents about which the complainant had given evidence which her mother said had never happened.

54 In re-examination the prosecutor asked the complainant's mother whether she had ever gone out and left the applicant and the complainant at home. She said that that had never happened.

55 In her final address the prosecutor sought to diminish the impact of the complainant's lack of specificity in terms of dates and times, and to diminish the impact of what could be seen as the extraordinary nature of some of the sexual activity which the complainant had described, such as the motorcyclist incident. The prosecutor relied heavily on the admissions allegedly made in the pretext calls. The prosecutor suggested that the jury might not find the complainant's mother's evidence to be credible. In particular, it was submitted that the mother had attempted to create an impression that there had never been any opportunity for any kind of sexual dealings between the complainant and the applicant to occur, which, it was submitted, was not credible.

56 In the final address on the applicant's behalf the first and last submissions that were made were that the applicant was not on trial for having a particular kind of relationship with the complainant but rather was charged with specific incidents that had to be proved beyond reasonable doubt. The placement of this submission, first and last, reveals its perceived importance.

57 The evidence in relation to each of the charged incidents and the uncharged acts was addressed, emphasising in particular the complainant's lack of specificity as to timing and the extraordinary character of the activities in which the complainant said she and the applicant engaged. In that context it was put to the jury that the complainant's evidence of sexual acts taking place in a suburban area in the course of a bike ride, the subject of charges 5 and 6, was 'quite unbelievable', but that 'the motorcyclist incident really takes the cake'. Counsel for the applicant continued:

It is so fantastic and so out there that you should not have any problems in rejecting it.[4]

58 The applicant's counsel's treatment of the coffee table incident, charges 8 and 9, emphasised the complainant's inability to give any timing of the incident either by year or by reference to some other event, and what was said to be the 'fantastical' elements of the account she gave.

59 Counsel for the applicant placed particular reliance on the evidence of the complainant's mother.

60 In the course of his address counsel for the applicant referred to the uncharged acts related to the trip to Derrinallum. He said:

[T]hat was the day when [the brother] and mum went in the Tarago, at the end of the football season to see Grandma. Just about the best evidence she gives with respect to dating in the matter. End of the football season, white Tarago, off to Derrinallum.[5]

61 Counsel for the applicant then analysed that evidence making a number of criticisms of it, the suggestion being that that was the best she could do and it was far from satisfactory. By contrast, in relation to some of the other uncharged acts, counsel for the applicant put to the jury:

They lack the context of the objective factors such as the Tarago and Derrinallum and those other matters that I referred to yesterday which I compared dates and times, etc.[6]

62 In relation to the pretext calls it was put to the jury that they were 'too vague and inconsequential to be able to look at specific admissions and use them with respect to the charges that are in the indictment'. It was suggested that the reference to having sex at the age of 15 should be seen in the context of 'her being highly sexual' and 'what we'd say was an incident when she was 15, which she denied, where she, we say, and put to her, that she engaged in oral sex with him'.

63 In her charge the trial judge emphasised, in terms not dissimilar to those employed by counsel for the applicant, that the prosecution had to prove beyond reasonable doubt 'any or all of the acts of sexual penetration that are the subject of the seven incest charges.' That was the first matter the trial judge addressed in her charge, and she repeated it twice thereafter.

64 The trial judge explained to the jury why they had heard evidence of acts which were not the subject of a charge, and directed them as to the relevance of that evidence. No complaint is made about what the trial judge said in that regard.

65 In relation to the pretext calls the trial judge explained that it was not suggested that an admission had been made to any specific charge but she instructed the jury that if they accepted that the accused intended to admit a sexual relationship 'then you can use that as an admission by him that there was a sexual relationship and therefore that bears on your assessment of [the complainant's] evidence of the general sexual relationship and on your assessment then of how you use that as context, relationship and tendency evidence to evaluate the seven specific acts, the subject of the seven charges.' No complaint is made as to what the judge said in that respect.

66 As indicated, the jury acquitted the applicant of five of the incest charges. So, the jury was not satisfied of guilt beyond reasonable doubt in relation to:

• the alleged first occasion of vaginal sex - charge 1;
• the alleged first occasion of anal sex - charge 3;
• the alleged two occasions of sex whilst 'training' for the bike camp - charges 5 and 6; and
• the alleged occasion of oral sex viewed by the motorcyclist - charge 7.

67 The jury convicted the accused on charges 8 and 9, the 'coffee table incident'.

In my view, the verdicts can be rationally explained by reference to the evidence. The charges which resulted in the not guilty verdicts were either specifically denied by you in the recorded calls, not supported by independent evidence, or were the subject of conflicting evidence about the time at which they were said to have occurred. By contrast, the complainant fixed the time of the events, the subject of charges 8 and 9, the guilty verdict charges, as being after another event which was the subject of an uncharged act. Her evidence about that was that that uncharged act event had occurred after the purchase of a family Tarago. Registration records showed that that was purchased in late 2006, when the complainant was 15.

I have already made note of the fact that in the recorded phone calls, you denied any "S-E-X" as you called it, meaning as I understand it, penile vaginal sexual penetration, had occurred until the complainant was 15. Thus, your own admissions as to having had sex with the complainant, and the time that it commenced, can be seen as confirmation of sexual penetration after that time.[7]

Submissions on application for leave to appeal convictions

69 On behalf of the applicant it was submitted that the prosecution case was based upon the complainant being found to be credible and reliable. Reference was made to the attacks on the complainant's credit, the submission being that:

It is evident from its verdicts of acquittal that the jury did not accept that it could rely on the complainant as a truthful and accurate historian.

70 The argument continued that, given that they could not rely upon the complainant alone, the jury must have found, or believed they had found, some independent evidence which was sufficient to satisfy them of guilt in relation to charges 8 and 9. It was submitted that, on analysis, there was no such evidence.

71 It was accepted that the reconciliation suggested by the sentencing judge, namely a finding that the coffee table incident happened after the purchase of the Tarago thereby placing that incident at a time when the complainant was 15, together with the applicant's admissions of having had sex with the complainant after she turned 15, was the only possible explanation for the verdicts. There were two reasons why that explanation was inadequate, according to the applicant's submissions. The first was that the pretext calls did not provide any independent evidence of the coffee table incident. The second was that there was no reliable evidence about the timing of the coffee table incident.

72 In relation to the complainant's credit generally, the two features of the evidence which were emphasised by the applicant's counsel on the appeal were what was said to be the fantastic nature of the complainant's description of the motorcyclist incident, and the evidence given by the complainant's mother.

73 In relation to the submission that the pretext calls did not provide independent evidence of the coffee table incident, it was submitted on the applicant's behalf that the calls contained no reference to that incident or anything which could be construed as a reference to that incident. The submission went on:

At best, those calls could have been used as independent evidence that there had been one or more sexual encounters between the applicant and the complainant after she had turned 15.

74 In relation to the timing of the coffee table incident, it was submitted that the evidence given during cross-examination to the effect that the incident happened after the time when the complainant's mother and brother went to Derrinallum was insufficient to 'establish, beyond reasonable doubt' that that incident had occurred when the complainant was 15. This was said to be because of the other evidence the complainant had given about the timing of the coffee table incident and the 'general unreliability' of the complainant's evidence concerning dates.

75 On behalf of the prosecution it was submitted that the verdicts were not inconsistent. Amongst other things it was submitted that the coffee table incident was the only charged act said to have occurred in circumstances where there was little risk of discovery, whereas the other charged incidents allegedly had occurred whilst someone was home or in circumstances where observation by others was a real possibility. It was submitted that whilst the pretext calls did not contain admissions of the specific coffee table incident, there was evidence enabling a conclusion that the coffee table incident had occurred when the complainant was 15, and, if the jury accepted that, then the applicant's admissions in the pretext calls became significant.

76 In relation to the evidence of the complainant's mother the prosecution submitted:

[S]he seemed to be prepared to give whatever evidence necessary to assist the applicant including stating that over the period of the allegations (when the complainant was aged between 12 and 16) the complainant was never alone at night with the applicant as the witness was home every single night over that period.

77 There was no controversy as to the applicable legal principles. They are:

1. If there is a proper way by which an appellate court can reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion would generally be accepted.[8]
2. When an appellate court is asked to conclude that a verdict is unreasonable, more conventionally expressed as unsafe or unsatisfactory, the court must ask whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[9]

78 At times, the applicant appeared to submit that the verdicts of not guilty on the five incest charges necessarily meant that the jury had found the complainant's evidence to be untrue or had found that the events described by the complainant in relation to those counts had not occurred. To the extent that that was submitted, that is, of course, incorrect.[10]

Analysis of application for leave to appeal convictions

79 The jury was not persuaded beyond reasonable doubt that the events which were the subject of the five incest counts of which the applicant was acquitted had occurred. This may have been because they did not find the complainant to be a credible witness. But they may also have acquitted on those counts, having found the complainant to be generally credible, because they had a reasonable doubt about the particular incidents which were the subject of those five charges.

80 The primary case advanced on the applicant's behalf at trial was that the account given by the complainant was too vague and unspecific, too fantastic, and too inconsistent with her mother's evidence to be believed.

81 But it was also necessary for the applicant to deal with the pretext calls. It was open to the jury to conclude that in the pretext calls the applicant had admitted that there had been a sexual relationship between the two of them but that it had not begun until she was 15. It seems to me that the defence dealt with this by seeking to characterise the complainant as the sole active party and by emphasising that the prosecution must prove the charged incidents not the sexual relationship.

82 The matters relied upon by the applicant at trial could have created, or left the jury with, a reasonable doubt in relation to events which they were not satisfied occurred when she was 15. They may not have had such a doubt in relation to counts where they were satisfied she was 15. Further, there were aspects of the complainant's account which could have caused the jury to have a reasonable doubt, or be left with one, either because the circumstances themselves seemed extraordinary or because of the risk of observation by others of what may have been seen as obviously shocking behaviour. The motorcyclist incident, on one view, combined both these characteristics. In fact, in that incident there was not a risk of observation by others, observation was a certainty.

83 Before turning to the particular counts, it is necessary to say something about the evidence of the complainant's mother. The prosecution submitted, to the jury and to this Court, that the mother's evidence was open to be rejected by the jury on the basis that she revealed herself to be determined to preclude any possibility of the events described by her daughter having occurred, and that in this she was not credible. In my view it was open to the jury to accept that submission. In particular, her evidence that the applicant and the complainant had never been left alone seems very hard to accept. Further, on the basis of the matters put to the complainant in cross-examination, there had been explicit sexual behaviour occurring between the complainant and the applicant which was kept secret from the complainant's mother.

84 Bearing all this in mind, one then turns to the individual counts.

85 Count 1 concerned what the complainant said was the first occasion of vaginal intercourse. It was clear on her account that this was an incident which occurred before she was 15. The complainant maintained it occurred when she was 12. This was an incident which the applicant strongly denied in the pretext calls. Upon the complainant's account there was a risk of discovery because the act occurred during a short window of time whilst her brother was at a local milk bar.

86 Count 3 was said by the complainant to be the first occasion of anal intercourse. Like count 1, it was clear the complainant maintained that this incident occurred well before she was 15. Like count 1, on the complainant's account there was a significant risk of discovery as the act occurred in the daytime whilst her mother was in the front garden.

87 Counts 5 and 6 were the incidents alleged to have occurred in the suburbs of Geelong during 'training' for the year 8 bike camp. As the incident was said to have occurred in year 8, it was before she was 15. The risk of discovery here was high, as, on the complainant's version, the acts occurred in public in an outer suburban area of Geelong.

88 Count 7 was the motorcyclist incident. The complainant's age is unclear on her account. In relation to this incident there was the certainty of observation by others. The applicant's counsel characterised this incident as the most far-fetched of all.

89 Counts 8 and 9, the coffee table incident, stand in contrast to the other counts in the following respects.

• There was evidence which enabled a conclusion to be reached that the incident occurred when the complainant was 15. There were criticisms made of that conclusion, but the evidence was there and the jury were entitled to accept it.
• This incident was said to have occurred whilst the complainant and the applicant were at home alone.
• If the jury concluded that the incident did occur when she was 15, then it was open to the jury to conclude it occurred at a time when the applicant admitted that he was having a sexual relationship with the complainant.

90 In my view the verdicts can be reconciled consistently with the jury having performed their function as required.

91 Whilst the sentencing judge did not address the issue in as much detail as I have done, I agree with her analysis.

92 The verdicts are capable of being reconciled, and are not unreasonable, unsafe or unsatisfactory.

93 As indicated, the applicant was sentenced to eight years' imprisonment on each charge, with two years on count 9 ordered to be served cumulatively with the sentence on count 8, making a total effective sentence of 10 years' imprisonment. A non-parole period of eight years was declared.

94 The grounds upon which the applicant relies are as follows:

1. In sentencing the applicant on the basis that he committed the uncharged acts as alleged by the complainant, the learned sentencing judge erred in:

(a) sentencing the applicant on a basis which conflicted with the jury's verdict; and

(b) punishing the applicant for crimes with which he was not charged.

1. The learned sentencing judge erred in failing to have regard to current sentencing practices.
2. The total effective sentence and the non-parole period imposed on the applicant are manifestly excessive.
3. The order for two years cumulation, and the resulting total effective sentence, breach the totality principle.

95 The sentencing judge gave full and detailed reasons for the sentence she imposed. In relation to the uncharged acts what she said was as follows:

You are entitled to the full benefit of the not guilty verdicts in respect of the other charges, but in my view, I can and should take into account the evidence of the uncharged acts as providing a context. It would be absurd to do otherwise, having regard to the nature of the acts and the charges you were found guilty of, and the circumstances in which they occurred. Such acts could not have occurred out of the blue, and given their nature, I am satisfied that they were informed by the complainant's watching of pornography, whether with you, or on her own with your encouragement and acquiescence, or as a result of her viewing and discussing the viewing of pornography with you.[11]

96 The sentencing judge observed that in her view these were 'extremely serious' examples of a serious offence. In that regard she referred to the fact that the complainant had been under the applicant's care since she was four or five years old, that the conduct had been depraved and degrading, and that the conduct had involved a gross breach of trust.

97 The judge referred to the victim impact statements. She characterised them as 'heartbreaking documents'. She referred to the fact that the complainant felt she had lost her childhood as did her younger brother. There had been a significantly detrimental impact on relationships within the family generally.

98 The sentencing judge observed that denunciation, just punishment and deterrence 'loomed large'.

99 The sentencing judge set out the relevant personal circumstances of the applicant. He was 42 years of age at the time of sentence and had no relevant prior criminal history. He had been married for 20 years and had had two young daughters with the complainant's mother. He has an excellent work history. He is a person held in high regard at work, at a number of sporting clubs with which he is associated, and in the community generally. He does not suffer from any psychological issues or substance abuse.

100 The sentencing judge accepted that the hardship which imprisonment will cause to his family will be an additional burden on the applicant while he is serving his sentence, particularly as his wife has health problems of her own.

101 The sentencing judge found that the applicant has good prospects for rehabilitation.

Submissions on the application for leave to appeal sentence

102 It was submitted on behalf of the applicant that the trial judge must have sentenced on a basis inconsistent with the jury's verdict. It was submitted that what the trial judge said in the passage I have quoted, combined with the severity of the sentence, can only mean that the trial judge had sentenced on the basis that the applicant had conducted a sexual relationship with the complainant when she was between the ages of 12 and 16 years.

103 The applicant referred to sentencing statistics and in particular Sentencing Snapshot 134 published by the Sentencing Advisory Council,[12] suggesting that a sentence of eight years' imprisonment on each count was significantly longer than the median sentence revealed by the statistics of four years and five months. It was submitted that the total effective sentence was towards the top of the range revealed by the statistics in circumstances where the average number of offences (nine) was much greater than here. Reliance was placed on this Court's recent judgment in Reid v The Queen ('Reid').[13]

104 It was submitted that both the total effective sentence and the non-parole period were beyond the range reasonably open in the circumstances.

105 On behalf of the prosecution the submission that the judge had sentenced on a basis inconsistent with the jury verdict was contested, but otherwise the submissions made on behalf of the applicant in relation to sentence were substantially endorsed. The prosecution conceded that 'there is much force in the argument made by the applicant that the learned sentencing judge failed to have regard to current sentencing imposing a sentence 8 years' imprisonment on each of the incest charges'. The prosecution submitted:

It is conceded that the total effective sentence was manifestly excessive. Although the charge of incest is a serious offence, the sentence fell outside the range properly available.

106 The specific submissions made on the applicant's behalf in relation to manifest excess were expressly accepted by counsel for the prosecution.

107 The prosecution submitted in relation to cumulation that 25 per cent cumulation did not in itself breach the totality principle but the prosecution conceded that a total effective sentence of 10 years was 'not reflective of the total criminality involved'.

Analysis of the application for leave to appeal sentence

108 The Crown concession as to manifest excess was properly and responsibly made. This sentence is outside the range properly available and is not reflective of the total criminality involved in the charges of which the applicant was convicted.

109 As far as the sentencing statistics are concerned, there are significant limitations to reliance on such statistics.[14] In particular, the sentencing statistics are reflective of the fact that the majority of sentences are imposed after guilty pleas. As this Court has recently emphasised in this specific context, a guilty plea is a very significant mitigating factor.[15] It is, however, relevant to note that the particular sentences here are almost double the median, and the total effective sentence here is comparatively high in a context where the applicant was convicted of two counts occurring in the one incident.

110 Comparable cases can be of significant assistance,[16] but they also need to be addressed with care and not used as 'benchmarks' inviting detailed comparison.[17]

111 A review of incest sentences dealt with in the Court of Appeal over recent years fortifies the conclusion that the prosecution concession was properly made.[18] The sentences involving offenders who pleaded guilty are of less assistance. The sentences in cases where comparable sentences were imposed after a trial involved more serious offending than here.[19] There are a number of cases which concerned convictions for more serious offending after a trial where lesser sentences were imposed.[20] When attention is confined to the offences of which the applicant was convicted, they do not possess aggravating features commonly seen in the higher sentences, such as numerous victims, use of force or coercion, pregnancy, exploitation for the gratification of third persons or publication on the internet, or a very young victim.

112 My conclusion is that the individual sentences, the total effective sentence, and the non-parole period are manifestly excessive. In the circumstances, it is unnecessary to address the other grounds.

113 The applicant should be granted leave to appeal the sentence. The appeal should be treated as instituted and heard instanter and allowed. The applicant then falls to be re-sentenced by this Court.

114 The sentencing judge set out the relevant matters in relation to the applicant's personal circumstances. I have already referred to them. The applicant is entitled to the full benefit of his acquittal. He cannot be sentenced on the basis that he conducted a sexual relationship with the complainant over the years when she was 12 to 16 years of age. To proceed on that basis would be inconsistent with the jury verdict. However, he should not be sentenced on the basis that counts 8 and 9 were isolated incidents either. On the basis of the pretext calls I am satisfied beyond reasonable doubt that they were not isolated incidents.

115 The two acts of incest of which the applicant has been convicted occurred in the course of the one incident. There were, however, two separate acts and some cumulation is required.

116 It was submitted on behalf of the applicant that count 9 was less serious than count 8. The submission was that that the conduct the subject of count 9 (rubbing the complainant's clitoris) could have been, and often is, charged as indecent assault. I accept that count 9 is less serious than count 8.

117 In all the circumstances, I would re-sentence the applicant to a term of imprisonment of 6 years on count 8 and 4 years on count 9. I would order that one year of the sentence on count 9 be served cumulatively with the sentence on count 8, making a total effective sentence of 7 years' imprisonment. I would fix a non-parole period of 5 years. I would otherwise confirm the orders made by the sentencing judge with the exception of the declaration of pre-sentence detention. A fresh declaration of pre-sentence detention should be made.

[1] To ensure that there is no possibility of identification of the victim(s) of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Transcript of Proceedings, Director of Public Prosecutions v [Blair (a pseudonym)] (County Court of Victoria, CR-13-00297, Judge Hampel, 7-9, 12, 13, 15, 16, 19, 21-3, 26 August, 6, 18 September 2013) 435-6 ('Transcript').

[7] Director of Public Prosecutions v [Blair (a pseudonym)] (Unreported, County Court of Victoria, Judge Hampel, 18 September 2013) [14]-[15] ('Sentencing Remarks').

[8] MacKenzie v The Queen (1996) 190 CLR 348, 366-7.

[9] M v The Queen (1994) 181 CLR 487.

[10] Ayol v The Queen [2014] VSCA 151 [13].

[12] Sentencing Advisory Council, Sentencing Snapshot No 134: Sentencing Trends Incest in the Higher Courts of Victoria (2012).

[13] [2014] VSCA 145.

[14] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535 [48] ('Hili').

[15] Reid [2014] VSCA 145 [111]-[113].

[16] Hili [2010] HCA 45; (2010) 242 CLR 520, 536-7 [53]-[55].

[17] Hudson v The Queen (2010) 30 VR 610, 617 [31]. See also Ayol v The Queen [2014] VSCA 151 [32]-[33].

[18] The cases reviewed were: Reid [2014] VSCA 145; Martin v The Queen [2013] VSCA 377; DPP v Jones [2013] VSCA 330; CD v The Queen [2013] VSCA 95; DPP v CJA [2013] VSCA 18; ISJ v The Queen (2012) A Crim R 484; DM v The Queen [2012] VSCA 227; M A v The Queen [2012] VSCA 214; E M T v The Queen [2012] VSCA 193; RSJ v The Queen [2012] VSCA 148; BSJ v The Queen [2012] VSCA 93; (2012) 35 VR 475; H R A v The Queen [2012] VSCA 88; AWP v The Queen [2012] VSCA 41; WC v The Queen [2012] VSCA 30; CF v The Queen [2012] VSCA 22; PDI v The Queen (2011) 216 A Crim R 577; R B N v The Queen [2011] VSCA 261; DLJ v The Queen [2011] VSCA 389; PRW v The Queen [2011] VSCA 381; I R J v The Queen [2011] VSCA 376; HP v R [2011] VSCA 251; DPP (Vic) v DJ (2011) A Crim R 367; LDF v The Queen [2011] VSCA 237; TC v The Queen [2011] VSCA 190; DPP v HPW [2011] VSCA 88; MP v The Queen [2011] VSCA 78; FD v The Queen [2011] VSCA 8; LJ v The Queen [2011] VSCA 3; DP v The Queen [2011] VSCA 1; CF v The Queen [2010] VSCA 275; GJW v The Queen [2010] VSCA 193; GEM v The Queen [2010] VSCA 168; OAA v The Queen [2010] VSCA 155; NJD v The Queen [2010] VSCA 84; AMP v The Queen [2010] VSCA 48; DPP v TDJ [2009] VSCA 317; DPP v BDJ [2009] VSCA 298; R v HJM [2009] VSCA 267; R v LFJ [2009] VSCA 134; Bellerby v The Queen [2009] VSCA 59; RLP v The Queen [2009] VSCA 271; AP v The Queen [2009] VSCA 249; DPP v Ral [2008] VSCA 140; DPP v EB [2008] VSCA 127; R v CLP [2008] VSCA 113; R v DD(No 2) [2008] VSCA 15; (2008) 181 A Crim R 51; R v DP [2007] VSCA 219; (2007) 176 A Crim R 382; DPP (Vic) v BGJ [2007] VSCA 64; (2007) 171 A Crim R 74; DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181; R v MKG [2006] VSCA 131; R v VN [2006] VSCA 111; (2006) 15 VR 113.

[19] BSJ v R [2012] VSCA 93; (2012) 35 VR 475; CF v The Queen [2012] VSCA 22; PDI v The Queen (2011) 216 A Crim R 577; TC v The Queen [2011] VSCA 190; GJW v The Queen [2010] VSCA 193.

[20] ISJ v The Queen (2012) A Crim R 484; M A v The Queen [2012] VSCA 214; DLJ v The Queen [2011] VSCA 389; PRW v The Queen [2011] VSCA 381; R v DD(No 2) [2008] VSCA 15; (2008) 181 A Crim R 51. Perhaps the case closest to this one is HP v R [2011] VSCA 251 where a sentence of six years with a non-parole period of four years was imposed for one count of incest.