Bussell (a Pseudonym) v The Queen [2014] VSCA 310

[s 47A(1) of the Crimes Act 1958]

[s 47A(4) of the Crimes Act 1958]

[s 74 of the Crimes Act 1958]

[s 74 of the Crimes Act 1958]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 14 years with a non-parole period of 11 years

Pursuant to s 6F of the Sentencing Act 1991 the offender is sentenced as a Serious Sexual Offender in respect of charge 2.

Pursuant to s.464ZF of the Crimes Act 1958 the offender is to undergo a forensic procedure. Pursuant to s.34 of the Sex Offenders Registration Act 2004 the offender is to report for life.

2 The applicant seeks leave to appeal on the following grounds:

Ground 1: The period of concurrency ordered between the charges was inadequate and offended the principle of totality.

Ground 2: The sentence imposed on charge 2 was manifestly excessive, in light of current sentencing practices and the Applicant's plea of guilty.

Ground 3: The total effective sentence was manifestly excessive, in light of current sentencing practices.

3 The applicant is the biological father of the complainant. The offending occurred between 1 September 2003 and 31 July 2012. During this period, the complainant was aged between seven and 16 years, and the applicant was aged between 26 and 35 years. The offending was constituted by the applicant's sexual abuse of the complainant. The sexual abuse included sexual intercourse on multiple occasions. Charge 1 relates to the applicant's sexual abuse of the complainant before she turned 16 years of age. Charge 2 was a representative charge, constituted by two further occasions upon which the applicant had sexual intercourse with the complainant after the complainant turned 16.

4 It is not necessary for the purposes of this application to set out all of the details of the applicant's offending. It is sufficient to describe three occasions of sexual abuse committed by the applicant when the complainant was variously eight years of age, 11 years of age and 15 years of age, and one of the acts of incest committed when the complainant was 16 years of age.

5 On the occasion when the complainant was 8 years of age, the applicant was angry with her and took her to a shed. The applicant pulled the complainant's pants down, threw her on a seat, and while holding her hair had sexual intercourse with her. The applicant was on top of the complainant, and holding her down, because the complainant 'did not want to do it'.

6 On the occasion when the complainant was 11 years of age, the applicant took the complainant into the rumpus room. He closed the curtains and put a pillow down for the complainant. The applicant pulled the complainant's pants down, pulled his pants down and inserted his penis into her vagina. On this occasion 'he wanted it to last a long time, so he was fast and then slow until he ejaculated'.

7 On the occasion when the complainant was 15 years of age, the complainant was in the applicant's bedroom. The applicant told the complainant he needed help as he was 'horny'. The applicant asked to look at the complainant's vagina. He became aroused, pulled down his pants and told the complainant to lie on the floor. He told her he was going to 'do her hard'. The applicant had sexual intercourse with the complainant while holding her arms down. The complainant was in pain and noticed blood when she wiped herself.

8 On the occasion when the complainant was 16 years of age, the complainant made a request of the applicant. The applicant told the complainant that she had to do something first. The complainant refused. However, notwithstanding the complainant saying no, the applicant pulled the complainant's pants down, laid her down and engaged in sexual intercourse with her.

9 At the plea hearing, the applicant agreed that these four occasions, and six other occasions detailed in respect of charge 1, and the one other occasion detailed in respect of charge 2, were not the only times abuse occurred. Further, as the judge described it in his reasons for sentence,[2] on occasions the applicant was violent or physically threatening to the complainant.[3]

10 In his reasons for sentence, the judge set out the applicant's background in some detail.[4] The judge's description of the applicant's backround is not in dispute. At the time of sentencing, the applicant was 37 years of age. His domestic situation at that time was that he had a de facto wife, a 16 year old stepdaughter and a five year old son.

11 Until his incarceration, the applicant was self-employed in a gardening business. The judge accepted that the applicant had an unhappy upbringing, and that the applicant's father was violent. A history given to a forensic psychologist was that the applicant was sexually abused by an older sister when he was 10 years of age.

12 The judge accepted that the applicant had a limited education and learning difficulties when at school. In about 2009, the applicant was injured in an industrial accident and suffered significant burns to his body. The applicant was assessed as having a low to moderate risk of reoffending. The forensic psychologist who examined the applicant for the purpose of his plea identified the applicant as having some remorse for his offending. The basis for this opinion was the applicant's verbal expression of remorse, early plea of guilty and statement that he did not want to put his daughter through a trial.

13 While the applicant had limited prior convictions for recklessly causing injury and theft related offences, these were not regarded as relevant for sentencing purposes by the judge.

Counsel in this case referred me to the sentencing snapshots for the two charges that you have pleaded guilty to in this court. They referred me to the authority of BM v R, reported at 2013 [VSCA] 3; a case of Wallace Cummins (a pseudonym) v R, again a case in [2013] VSCA 352; and the DPP v DDJ, which is [2009] VSCA 115. I have taken into account the pronouncements of the Court of Appeal in those cases and in other cases on sentencing in incest cases, in arriving at your sentence.

The basic purposes for which a court may impose a sentence of imprisonment are, as I have said before, just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for them, your personal circumstances and those of your victim. I am required to balance those interests with the interests of the community in denouncing your criminal conduct, with the interests of the community, in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society.

You have pleaded guilty to these proceedings, and as I said, the plea was indicated after the committal proceedings. Your plea has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea indicates public confidence in the legal processes set up to protect the community.

You have, by your plea, relieved your victim, your daughter, from giving evidence against you. It facilitates some closure for her, as a victim of your offending. Your plea also is a clear acknowledgment by you that you accept your responsibility for your criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community. I will also accept your plea of guilty to these charges indicates and demonstrates some remorse on your part.

Under the serious offender provisions of the Sentencing Act on your conviction and sentence, to a term of imprisonment in respect of Charge 1, I am required on the sexual offences charges thereafter to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered under s.6D of the Sentencing Act to impose a sentence proportionate to the gravity of the offences. This means that the sentencing task in respect of Charge 2 on the indictment is to be undertaken the basis that the protection of the community from you is a principle purpose for which that sentence is imposed. To achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offence, considered in the light of the objective circumstances.

Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charge 2 on the indictment, the sentences I impose on you are to be served cumulatively. I note here the Crown not call for a disproportionate sentencing for all the cumulation contemplated in either s.6D or 6E of the Sentencing Act, allowing for the matters I have already outlined. In my view, it is appropriate to impose only the degree of cumulation to which I subsequently refer, reflecting as it does several episodes of offending. To do otherwise may produce a sentence which is not appropriate and is unjust. I previously referred to the impact of your plea of guilty and I have taken that into account in the manner in which I outlined previously.

The prosecution submitted these charges call for a significant period of imprisonment to reflect the seriousness of your offending. Your counsel submitted that the sentences for Charge 1 and 2 should be fully concurrent or marginally cumulative. Your counsel submitted that some of the aggravating features of BM v R case were absent in your offending, hence your sentence should be a lower sentence than that one imposed there.

I find that there are two separate offences, as have you pleaded to, and that a degree of cumulation between those individual sentences properly reflects the Parliament's intention when legislating for the two periods in the life of a victim, affected by your offending. I also take into account the principles of totality in sentencing and in setting individual sentences and the cumulations between the two charges.[5]

15 In arguing grounds 1 and 3, the applicant placed significant reliance upon this Court's decision in BM v The Queen.[6] In BM, the appellant pleaded guilty to one count of maintaining a sexual relationship with a child under 16. He was sentenced to 12 years' imprisonment with a non-parole period of 9 years. The victim was the appellant's natural daughter, and the offending occurred over a period of 10 years, during which time the victim was aged between four years and 13 years. The Court described the sentence imposed on BM as 'at the upper end of current practice'[7] and 'at the top of the permissible range'.[8]

16 The applicant contends that there were aggravating features in BM not present in his case, namely:

• the victim was younger in BM;
• threats to harm were used to maintain silence in BM;
• the appellant in BM enforced his victim's silence and presented her as a liar to her mother, and continued to abuse her;
• the victim in BM continually protested;
• the appellant in BM continued to offend after being sentenced for possession of child pornography, placed on the Sex Offender Register and having received a suspended sentence; and
• the appellant in BM offended when on a good behaviour bond.

17 The applicant submitted that when one had regard to the circumstances in BM and the sentence imposed in that case, the sentences, the order for cumulation and the non-parole period imposed on the applicant were impermissibly high, and outside the range open to the judge.

18 In further support of the applicant's complaint about totality (ground 1), the applicant submits that the judge erred when he said that 'a degree of cumulation between [the] individual sentences properly reflects the Parliament's intention when legislating for the two periods in the life of a victim'.[9] Ms Sleeth, who appeared before us this morning, emphasised the applicant's complaint as to the order for cumulation made by the judge. We will refer further to this issue below.

19 In support of his argument on ground 2, the applicant relied upon this Court's decision in Reid (a Pseudonym) v The Queen.[10] Reid involved sexual offending against a step-daughter that occurred over a period of four and a half years, during which time the victim was aged between 13 and 17 years. In Reid, the appellant had been sentenced to a total effective sentence of 18 years and 8 months' imprisonment with a non-parole period of 14 years and 8 months. This Court upheld the appellant's complaints of manifest excess and re-sentenced the appellant in Reid to 14 years' imprisonment with a non-parole period of 10 years. In the course of so doing, the Court re-sentenced on a number of charges of incest, the sentencing judge's sentences in respect of those charges having been determined to be manifestly excessive.

20 The applicant submits that his offending in relation to charge 2 (incest) is not as serious as the charges of incest in Reid that attracted like periods of imprisonment to the sentence imposed on the applicant for charge 2.

21 The respondent submits that the judge's order for cumulation and total effective sentence did not infringe the principal of totality. The applicant fell to be sentenced as a serious sexual offender on charge 2.[11] This meant that the sentence on charge 2 was required to be served cumulatively on the sentence on charge 1, unless the court otherwise directed.[12] The respondent submitted that the fact that the judge did not fully cumulate the sentence on charge 2 indicated that his Honour had regard to the principle of totality. Further, the judge stated that he took into account the principles of totality.[13]

22 As to the complaint of manifest excess in respect of the sentence on charge 2 (ground 2), the respondent submitted that:

A sentence of six years' imprisonment, in circumstances where the occurrence of incest after the victim turned 16 was not isolated, was well within the range of sentences imposed for such offending. The Sentence Advisory Council Sentencing Snapshot for incest indicates that the median length for imprisonment for incest is four years and nine months, whilst the most common range imposed was five to six years' imprisonment.

23 As to the complaint that the total effective sentence was manifestly excessive and as to the applicant's reliance upon BM, the respondent submitted that the offending in the present case was not less serious than the offending in BM. While the offending in BM commenced when the victim was four years of age, that offending was said not to substantially involve penile vaginal penetration. Ultimately, the respondent submitted that in both cases the offending was of long duration, involved manipulative and coercive behaviour and was a gross breach of trust. The respondent contended that the similarities between BM and the present case 'far outweigh any differences'.

24 There is little to be gained from parsing the facts and differences identified in BM, Reid and the present case. All three cases are examples of extremely serious sexual offending against children. All three cases were and are deserving of severe punishment. Further, while the consideration of sentencing statistics and comparable cases has its role to play in determining whether a particular sentence was within the permissible range of sentences open to the sentencing judge,[14] as has been said repeatedly, sentencing statistics and so-called comparable cases can only be of limited assistance.[15] Each case is different. The myriad of matters that must be taken into account by a sentencing judge are never the same in each case. Sentencing statistics provide even less detail than might be gleaned from the reasons for sentence of a so-called comparable case, particularly since they do not differentiate between pleas of guilty and contested trials. As Kaye AJA said in Russell v The Queen, they are, at best, only a very crude guide as to the appropriate sentence in each case.[16]

25 That said, as the analysis in BM and Reid demonstrates, the sentences and order for cumulation imposed in the present case must be regarded, at least, as being at the upper end of the permissible ranges open to the judge. For that reason, we will grant leave to appeal.

26 However, an analysis of BM and Reid also demonstrates that the sentences, order for cumulation and non-parole period imposed by the judge upon the applicant were not outside the ranges permissibly open to the judge. This was sexual offending of a most serious kind. The offending went on over many years. It involved a gross breach of trust. The victim was of a particularly young age when the offending commenced. There were aspects of violence in relation to the conduct that constituted charge 1. Additionally, there was an obvious lack of consent by the complainant on at least one of the occasions that formed the basis for charge 2. This circumstance itself well-justified the sentence on charge 2 and the order for cumulation made by the judge. Further, as the judge noted, the complainant was exposed to the risks of pregnancy and sexually transmitted disease that are associated with unprotected sexual intercourse.

27 Ms Sleeth, in a careful submission, argued before us that the order for the cumulation of three years of the sentence imposed in respect of charge 2 on the sentence imposed on charge 1 was excessive. However, it is to be remembered that the applicant fell to be sentenced as a serious sexual offender in respect of charge 2 -resulting in a presumption of cumulation rather than concurrency in respect of this sentence. Further, it could not be said that the conduct constituting charge 2 was an isolated offence committed close in time to the complainant's 16th birthday. The conduct constituting charge 2 occurred over a period of months after the complainant turned 16. For these reasons, we are unable to accept Ms Sleeth's very helpful submissions on this issue.

28 Finally, neither the judge's reasons, nor the actual sentences imposed or orders made by the judge, disclose any error on his Honour's part. With respect, the Reasons disclose that a careful and appropriate analysis was engaged in by the judge. Further, and in any event, in all of the circumstances of this case, we are not persuaded that any different sentences or orders should be imposed.[17]

[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] DPP v Bussell (a Pseudonym) (Unreported, County Court of Victoria, Judge Carmody, 8 August 2014) ('Reasons').

[6] [2013] VSCA 3 ('BM').

[10] [2014] VSCA 145 ('Reid').

[11] This was because the applicant had been convicted on charge 1 of persistent sexual abuse of a child under the age of 16 (see paragraph (ab) of the definition of 'serious sexual offender' in s 6B of the Sentencing Act 1991 and clause 1(a)(viii) of Schedule 1 of that Act).

[12] Sentencing Act 1991 s 6E.

[14] Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 88 ALJR 372, 379 [40].

[15] See for example Zhu v The Queen [2013] VSCA 102 [72] (Redlich JA and Kaye AJA, with whom Whelan JA agreed). See further, Russell v The Queen [2011] VSCA 147; (2011) 212 A Crim R 57, 58 [1] (Buchanan JA), 66-7 [42] (Neave JA) and 69-70 [56]-[61] (Kaye AJA).

[16] Russell v The Queen [2011] VSCA 147; (2011) 212 A Crim R 57, 70 [61].

[17] See s 281(1)(b) of the Criminal Procedure Act 2009. See further, Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947, 957-8 [42]-[43].