C F v The Queen [2012] VSCA 22

1 Following a trial which began on 8 October 2007, the appellant was convicted of 18 counts of incest and 19 of committing an indecent act with, or in the presence of, a child under 16. The final count on the presentment, count 38, also resulted in a conviction. It was described in the presentment as that of procuring and counselling a child to take part in an act of sexual penetration. In fact, however, two children were involved. They were her son ('C1') and her daughter ('C2'), who at the behest of their mother and her husband, their stepfather, performed oral sex on each other.

2 Following her conviction, the appellant was on 18 December 2007 sentenced to a total effective sentence of 12 years' imprisonment. Her Honour ordered that the appellant serve a minimum of 8 years before becoming eligible for parole.

3 The offences, maximum sentences, individual sentences and orders for cumulation are set out below in the Table below.

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Indecent act with or in the presence of a child under 16

Counselling or procuring child under 16 years to take part in act of sexual penetration

4 On 14 November 2008, Ashley JA granted the appellant's application for leave to appeal against these sentences.

5 There are three grounds of appeal. The first and second are linked. Their combined complaint is that the sentencing judge twice erred when passing sentence on count 38. Her Honour first failed to have proper regard to the correct maximum penalty for that offence, a failure made evident by her initial decision to order that, on count 38, the appellant be imprisoned for six years (as at the date of sentence, the maximum penalty was 10 years' imprisonment, but at the time the offence was committed, the maximum was five years). Then, upon appreciating her mistake about the applicable maximum, her Honour simply reduced the initial sentence from six years to five, thus imposing upon the appellant the maximum sentence for that count. Having in the meantime ordered that 18 months of the initial period of six years be served cumulatively upon the base sentence, the sentencing judge did not adjust that order for cumulation to reflect the decrease from six to five.

6 The third ground of appeal is that the individual sentences, the head sentence and the non-parole period are manifestly excessive.

7 Her Honour did not, in her sentencing reasons, advert to the pre-2006 maximum sentence of five years' imprisonment for procuring and counselling a child to take part in an act of sexual penetration. She simply announced that 'For count 38, counselling and procuring children to take part in an act of sexual penetration, you [the appellant] are sentenced to six years' imprisonment.' When, very shortly afterwards, the mistake was pointed out to her, the sentencing judge simply said 'So that would need to be adjusted by one year'.[1] The prosecutor responded in the affirmative. Hence the sentence of five years' imprisonment on count 38.

8 The appellant's conduct in procuring her children to perform oral sex on each other constituted a very grave example of the offence of procuring another person to take part in an act of sexual penetration outside marriage with a child under the age of 16, which is proscribed by s 58(2) of the Crimes Act 1958.

9 The seriousness of the offending may be judged against the facts that not one, but two, children under the age of 16 were involved; and the victims were the appellant's own son and daughter. It was not contended by the Crown that force, or threats of force, was or were involved, or that other than oral sex was performed. Were it otherwise, the maximum penalty must have been properly open to a sentencing judge.

10 Given the considerations which take this case out of the category of the worst example of its kind, we would accept the appellant's submission that when her Honour corrected her mistake she was unduly influenced by the sentence of six years she had previously intended to impose, in the belief that the maximum sentence for this offence was 10 years' imprisonment. The imposition of the maximum penalty without any explanation from the sentencing judge was, in our opinion, an error which must be corrected. Grounds 1 and 2 are therefore made out. In those circumstances, it is necessary to re-sentence the appellant on that count. In our opinion, a sentence of three years and nine months' imprisonment on count 38 should be substituted for the five years imposed by her Honour. We would adopt her Honour's decision to cumulate 18 months of this sentence with the base sentence.

11 It is submitted that the sentencing judge, in fixing the individual sentences, the head sentence and the non-parole period, failed to give proper weight to the evidence of the appellant's husband as the dominating force in her offending. That her Honour held this opinion about the respective positions of influence as between husband and wife is apparent from [44] of the sentencing reasons. Her Honour there said:

In this case, I have heard both sworn evidence and assertions from the bar table. I am satisfied beyond reasonable doubt [that the appellant's husband] dominated his wife to the extent that it made a significant contribution to her offending. Were it not for his instigation, combined with his dominance at a level higher than a mere imbalance between an older man and a much younger woman in poor health, she would not have offended.

12 The appellant's husband was undoubtedly the moving force behind each of the 38 offences. Although there was no evidence that he physically threatened the appellant he instigated the notion that his step-children should be sexually abused by putting it to the appellant that that is what the children wanted, that it would advance their education, and that it would bring the family together. It was also he who suggested most if not all of the sexual behaviours in which the participants engaged, he was present as each offence was committed, and he physically participated in many of them. The appellant did not commit offences against the children when she was alone with them. The husband is, in addition, 31 years older than the appellant. On the other hand, his age means that, other things being equal, he will not have so much of his life remaining upon his release from custody.

13 Taking all these considerations, as well as other mitigating circumstances peculiar to the appellant's husband, into account, the complaint that the appellant's sentence was manifestly excessive because her total effective sentence was only two years less than that imposed upon her husband is not in our opinion made out.

14 The appellant also submits that her health is poor, and that this was not taken sufficiently into account by the sentencing judge. A complaint that a judge has given insufficient weight to a sentencing consideration is simply a particular supporting the proposition that the sentence was manifestly excessive.[2] It is trite law that the claim that a sentence is manifestly excessive is very difficult to make out. It was for her Honour to exercise her discretion when deciding the weight to be given to mitigatory factors such as poor health. It follows, therefore, that unless the end result of the sentencing process is a sentence that is outside the range which in the circumstances is appropriate, it cannot be impeached simply on the basis that greater weight might have been given to the appellant's indifferent health, with the result that a different and lower sentence might also have been appropriately imposed.

15 At [49] of her reasons for sentence, her Honour said:

A further mitigating factor is that of [the appellant's] health. She has been diagnosed with chronic mixed anxiety and a depressive disorder, a reasonably significant disorder that might be exacerbated by being in gaol. She is receiving counselling in gaol for anxiety and panic. She suffers from frequent episodes of petit mal epilepsy and less frequent grand mal episodes, sometimes needing hospitalisation. Her condition is hard to control by medication such that she has had to rely on her husband for assistance in the past.

16 In our opinion, it cannot be said that the judge failed to take the appellant's health properly into account. Similarly, the appellant's submission that her Honour should have given greater weight to the circumstances: (i) that the appellant may spend her time in gaol in protection; (ii) that that burden will be increased because of her many physical and mental difficulties; (iii) that the appellant is unlikely to re-offend; (iv) that she exhibited remorse; and (v) that her cross-examination of her children at trial was limited in its scope - all go to the exercise by her Honour of her sentencing discretion. It has not been shown, or even alleged, that her Honour disregarded any of them, or took into account irrelevant matters, or acted upon some wrong principle.

17 In our opinion, the sentences imposed by her Honour, with the sole exception of that imposed in respect of count 38, were within range. Given, however, that we do not think that the relevant period of cumulation of 18 months should be changed, the total effective sentence should remain at 12 years' imprisonment, with a non-parole period of 8 years. The appeal should therefore be allowed in respect of count 38, but only to the extent necessary to reduce the sentence on that count to one of 3 years and 9 months' imprisonment. We would otherwise dismiss the appeal.

[2] R v Gorladenchearu [2011]VSCA 432.