Carter (a Pseudonym) v The Queen [2018] VSCA 88

1 On 9 June 2015, the applicant was charged with three counts of incest occurring in early 2003 (charge 1) and late 2004 (charges 3 and 5). He was at that time the de facto spouse of the complainant's mother. He was also charged with two other sexual offences involving the same complainant, one in 2003 (charge 2) and the other in 2004 (charge 4). The complainant was aged between 11 and 12 at the time of the offending.

2 The complainant first reported the alleged offending to police in 2007. The applicant was interviewed by police at that time, but no charges were laid due to what was then perceived to be a lack of sufficient evidence.

3 In July 2014, the Office of Public Prosecutions re-visited their file in respect of the complaints, in the context of considering other charges against the applicant for sexual offences involving incest of two other girls who were about 12 and 14 years old. Those complainants were daughters of a later de facto spouse of the applicant. In that context, a decision was made to lay the subject charges against the applicant. The trial of the other incest charges occurred in 2016. The applicant was acquitted of all those charges.

4 The applicant was tried and found guilty on charges 1 and 5 only. He was acquitted on charges 2, 3 and 4. He was sentenced on 7 April 2017 in accordance with the following table:

[s 44(2) Crimes Act 1958]

[s 44(1) Crimes Act 1958]

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

Other relevant orders: Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is life.

5 As appears above, there was substantial delay in charging the applicant. Nearly 11 years elapsed between his latest offending (charge 5) and the filing of the indictment against him. Although such delays are not uncommon in cases of this kind, the applicant was first interviewed in relation to the offences in 2007. There was then a further delay of about eight years until he was charged. In the meantime, notwithstanding a fairly extensive history of convictions for non-sexual offences in the period 1996 to 2011, he found a stable partner in 2011 and substantially rehabilitated himself in the five year period until he was charged.

6 The applicant applies for leave to appeal against sentence on the following grounds:

(1) **Ground 1 - ** The learned sentencing judge erred by failing to give proper application to the principles of just punishment and equal justice.

(2) **Ground 2 - ** The learned sentencing judge erred by characterising the objective seriousness of the offending as mid-range incest.

(3) **Ground 3 - ** The individual sentences, orders for cumulation, and the non-parole period are each manifestly excessive having regard to:

(b) personal factors in mitigation, in particular the applicant's progress during the period of delay, and his good prospects of rehabilitation;

(c) current sentencing practices for similar offending, and sentencing practices at the time of the offending;

(d) the need for 'incremental' rather than sudden increases in sentencing practices.

7 The applicant was at relevant times the de facto spouse of the complainant's mother. Together with the complainant and her brother, they lived at various premises. The two offences were committed at different premises.

8 In early 2003, when the complainant was 11 years old, she fell asleep on a couch during a movie and was carried to bed. The applicant entered the bedroom and put his hands down the complainant's pyjama pants and started touching her vaginal area. The applicant digitally penetrated the complainant's vagina (Charge 1 ** - Incest**). The complainant pretended to be asleep. The applicant continued this for a while and this hurt the complainant. When she tossed and turned the applicant exited the bedroom.

9 In late 2004, when the complainant was 12 years old, the applicant entered the complainant's bedroom and opened the princess netting around the bed. The complainant woke up. The applicant put his hand under the complainant's pyjama pants and into her underwear. The applicant digitally penetrated the complainant (Charge 5 ** - Incest**). The complainant said that it hurt a lot and told the applicant to stop or she would tell her mother. He then stopped.

10 There were numerous other occasions where the applicant touched and rubbed the complainant under her clothes on her vagina area. The complainant gave evidence that these incidents were 'sort of mashed together'. This sexual misconduct evidence was put before the jury.

11 The applicant told the complainant not to tell anyone about the offending. He told her it was a 'secret' and would upset her mother if she found out.

The applicant's history and personal circumstances

12 The applicant was born in December 1978. He had a very troubled childhood. His parents separated when he was aged seven. He lived with his mother and her de facto husband until he was about 14 years old. During that time, when he was 12 or 13 years old, he was assaulted by his de facto stepfather. He tried to leave home and live with his grandfather, but his father intervened. He recommenced living with his mother until he left home a second time and commenced living with his father. He was then aged 14 or 15.

13 When he was 16 or 17, he was in a relationship with his present de facto wife, Robin Vincent,[2] who he had met at high school and was a year or two older than him. His father met Ms Vincent and formed a relationship with her which continued for about 18 years. Soon after that relationship started, his father physically assaulted the applicant and threw him out of the house - because of his father's relationship with Ms Vincent, his father's allegation that the applicant had been stealing some of his cannabis plants in the backyard, or a combination of the two reasons. These events led to the applicant suffering continuing stress, anxiety and depression.

14 By this time, the applicant had left school after an extraordinarily interrupted schooling, involving no less than nine primary schools.

15 The applicant commenced work at an early age in various occupations and lived at various premises, sometimes living on the street. He used alcohol and illicit drugs and resulting problems caused periods of unemployment. However, he 'straightened' himself out and obtained employment for about two years.

16 In 2002, when he was about 23 years old, he met the complainant's mother and, with minimal use of alcohol and cannabis, settled into a relationship for two years, during which he fathered two children with her. However, this relationship ended in April 2004 when, suffering from psychological problems and intending to commit suicide, the applicant burnt down the family home and was sentenced to prison for arson and other offences.

17 Upon being released from prison in 2006, the applicant commenced another relationship which lasted until 2010 when he was convicted of assault and imprisoned.

18 On release from prison in early 2011, the applicant contacted Ms Vincent, who was living with the applicant's father in Tasmania, and their relationship recommenced. Ms Vincent left the applicant's father and cohabited with the applicant as his de facto wife until the applicant was arrested for the subject offences in 2015. There are two young children of that relationship. This relationship is a strong one, and endures notwithstanding the charges against the applicant and his conviction. Before his arrest in 2015, the applicant and Ms Vincent were engaged in a small business together.

19 Unfortunately, Ms Vincent was diagnosed in 2016 with a squamous cell carcinoma on her tongue, resulting in her tongue being surgically removed and consequent chemotherapy and radiotherapy. This was an understandably traumatic episode in their relationship, and this family hardship has relevance to the effect of the applicant's incarceration on both him and Ms Vincent.

20 Against this background, we turn to consider the applicant's prior convictions:

(1) April 1996 - a dishonesty offence resulting in a suspended term of imprisonment and a community based order (CBO).

(2) February 1997 - theft and lighting a fire on total fire ban day - a CBO for six months.

(3) October 1997 - fined $400 for a summary offence.

(4) January 1999 - breach of CBO imposed in February 1997 - fined $100 and 20 days' imprisonment, suspended for 12 months.

(5) August 2003 - theft and failure to answer bail - fined $500.

(6) December 2003 - breach of Domestic & Family Violence Protection Act (Qld) - fined $600 (later varied to 25 hours of unpaid community work).

(7) June 2004 - acting in an indecent manner in a public place - fined $1,000. This offence apparently resulted from his partner opening the curtains whilst the applicant was walking unclothed with a cup of coffee in each hand.

(8) October 2004 - failure to comply with the CBO imposed in March 2004 - $300 or 15 hours' unpaid community work.

(9) June 2005 - cannabis charges - hearing adjourned for one year.

(10) February 2006 - arson conviction and two charges of common law assault. Three years' imprisonment with non-parole period of 12 months.

(11) February 2006 - theft and resisting police - 21 days' imprisonment.

(12) March 2008 - dishonesty offences - fined $400.

(13) October 2008 - breach of intervention orders. Four months' imprisonment, suspended for two years. That sentence was restored in August 2010.

(14) August 2010 - convicted of assault causing injury - 12 months' imprisonment.

(15) January 2011 - contravention of family violence intervention order and dishonesty offences - one month's imprisonment.

21 Since then, there have been no convictions. None of the above offences involved a sexual assault.

22 The principal matters relied upon by the applicant's counsel on the plea may be summarised as follows.

23 First, the combination of the delay in laying the charges and the applicant's effective rehabilitation since he commenced his relationship with Ms Vincent. The applicant here emphasises that this is not a case where the young age of the victim caused all of the delay prior to charges being laid. Instead, there was a relatively early complaint in 2007, with charges not being laid until 2015. The applicant contends that, in these circumstances, if the charges had been laid soon after the initial complaint in 2007, he would have been sentenced under a different sentencing regime than applies today 'post-Dalgliesh' - a reference to the two Court of Appeal decisions in Director of Public Prosecutions v Dalgliesh (a pseudonym).[3]

(1) The Court of Appeal initially dismissed an appeal by the Director against sentence on the ground of manifest inadequacy ('Dalgliesh No 1').[4]

(2) The applicant in this case was sentenced, and this application was commenced, with reference to Dalgliesh No 1.

(3) The High Court then allowed the Director's appeal against Dalgliesh No 1, and remitted the Director's appeal to this Court ('Dalgliesh HCA').[5]

(4) On remitter, this Court allowed the Director's appeal and re-sentenced Dalgliesh ('Dalgliesh No 2').[6]

25 Second, imprisonment will have added weight on him because of the uncertainty as to whether he will be able to see his two young sons, Ms Vincent's compromised medical condition following her cancer surgery, and her need for further reconstructive surgery while he will be in prison.

26 Third, although it is accepted that the offending was clearly serious having regard to the age and vulnerability of the complainant at the time of offending, the physical acts constituting the incest are at the lesser end of the scale of such offending. In particular, the applicant relied upon the absence of aggravating features such as physical compulsion for the offending and the disease and pregnancy risks associated with penile penetration.

27 Fourth, the applicant contended that matters of general and specific deterrence, and public denunciation, ought be moderated because of his good prospects of rehabilitation given his strong family support.

28 Fifth, the applicant relied upon his traumatic childhood as evidenced by the report of Mr Jeffrey Cummins, consulting clinical and forensic psychologist, which also assessed his risk of committing a further sexual offence as low-moderate, or low if he attended a sex offender program and yielded the benefits from participation in such a program.

29 In response, the Crown submissions on appeal may be summarised as follows.

30 First, the applicant shows no remorse. He ran his trial and maintains his innocence.

31 Second, the delay in laying the charges, and in bringing them on for trial, has also had the effect that the complainant has had to relive the incest many years after the event, at a time when she ought to have been looking forward. The victim was at the time of the trial pregnant and in a stable relationship. On the plea, the Crown acknowledged that the delay was not the fault of the applicant, and he was entitled to some mitigation of his sentence as a result of it. As appears below, the sentencing judge accepted that was the case and said she made allowance for it in the sentences she imposed.

32 Third, the fact that the applicant told the complainant not to tell her mother of the offending is an aggravating feature.

33 The sentencing judge set out the nature of the offending and the applicant's history and personal circumstances. The judge then dealt with the following issues.

34 First, the sentencing judge did not accept that Ms Vincent's medical condition constituted 'exceptional circumstances' relevant to family hardship. However, the sentencing judge stated that she had taken into account in fixing the applicant's sentence that he would be concerned about Ms Vincent's medical condition and its effect on her ability to raise their two sons while he was in prison.[7]

35 Second, the sentencing judge accepted that the delay in laying charges after the initial complaint was made in 2007 was a relevant sentencing factor, because the applicant had made significant efforts towards rehabilitation during that period.[8] She described him as having good prospects of rehabilitation.[9]

36 Third, the sentencing judge considered the report of Mr Cummins and the positive character references put forward on behalf of the applicant.

37 Fourth, the sentencing judge referred to the victim impact statements of the victim and her mother. Reading the sentencing reasons as a whole, it is clear that the sentencing judge found these statements compelling. The victim's statement referred to severe post-traumatic stress disorder, anxiety and depression and described the extremely adverse effect on her ability to trust others, her personal relationships and her relationship with her mother and her mother's family. Her mother's victim impact statement disclosed severe guilt at not investigating the offending earlier and failing to protect her daughter.[10]

38 However, although attaching weight to the victim impact statements, the sentencing judge made it clear that she was conscious that she ought 'not allow the effects upon a victim to swamp the sentencing process'.[11]

39 Fifth, the sentencing judge stated that there was a need for specific deterrence, given the applicant's 'extensive criminal history, albeit not for the same type of offending'.[12] The sentencing judge was also influenced by the fact that there was a significant period of time between the offending constituting the charges, which gave rise to 'the opportunity to desist between the commission of charge 1 and charge 5'.[13]

40 Sixth, the sentencing judge referred to applicable sentencing decisions of this Court, in the following terms:[14]

I am aware also of the decision of DPP v Dalgliesh [No 1][15] and more recently that of R v Kilic,[16] the latter involving different offences to yours, but containing a discussion of current sentencing practices generally. Kilic was recently referred to in Stanley v The Queen.[17]

Sexual offending against children is regarded by the courts as very serious and there have been such pronouncements over many years, including in R v Wayland,[18] R v Sposito,[19] R v WEF,[20] DPP v VH.[21] That list is not exhaustive and further authorities were also referred to in Dalgliesh.

Regarding the charges of incest, in DPP v G,[22] Winneke P said:

This court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes. ... The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents - and those in loco parentis - who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.[23]

41 Grounds 1 and 2 each specifically mention impermissible application by the sentencing judge of Dalgliesh No 1.[24]

42 The Dalgliesh case concerned a more serious case of incest than the present. Dalgliesh was the de facto stepfather of the victim, who was aged 13 at the time of offending. Dalgliesh had sexual intercourse with the victim, who fell pregnant as a result (charge 1). The pregnancy was terminated. The victim told her mother that the pregnancy was the result of sexual intercourse with a local boy from school. As a result, the mother decided to move the family from one rural town to another. Dalgliesh was aware that the victim had lied to her mother regarding the circumstances under which she had become pregnant, but allowed the mother to continue to believe her daughter's lie. Acting on that belief, the mother continued her de facto relationship with Dalgliesh until she later caught him indecently assaulting her other daughter.[25]

(1) sexual penetration of the same victim while under the age of 16, but before she became his de facto stepdaughter (charge 4);

(2) incest involving the victim's mildly disabled sister (charge 2); and

(3) indecent assault of the disabled sister (charge 3).

44 Dalgliesh pleaded guilty to all charges and was sentenced in the County Court. A sentence of imprisonment of three years and six months was imposed on charge 1. The Director of Public Prosecutions appealed to this Court against that sentence and the orders for cumulation on the other sentences. The Court observed that the objective seriousness of the relevant offending demanded a considerably longer sentence than had been imposed. However, having regard to the 'constraints of current sentencing practice',[26] the Director's appeal based on manifest inadequacy of the sentence was dismissed as not being outside the range of sentences for 'mid-range offending' of that kind.[27] In reaching its decision, and at the invitation of the Director, the Court made a number of general statements to the effect that 'current sentencing standards for incest are demonstrably inadequate',[28] the sentences currently being imposed 'devalue the objective gravity of the offence',[29] and that 'current sentencing for incest reveals error in principle'.[30] The Court concluded:

The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be - and should be - self-correcting.

Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.

On the current state of sentencing, there is no sufficient differentiation between worst case and mid-range offending. As we have said, sentences for mid-category offending have been constrained by sentences for worst category offending, and the sentencing range for mid-range offences has been inappropriately compressed.[31]

45 Based on these statements by the Court, the applicant contended that Dalgliesh No 1 was wrongly applied in this case, for two reasons.

46 First, because the approach revealed in Dalgliesh No 1, and later in Dalgliesh No 2, was not current when he committed the relevant offences in 2003 and 2004. He contends that this approach involved the specific error of not applying principles of just punishment and equal justice (Ground 1).

47 Second, the applicant contended that the sentencing judge erred in her implied characterisation of his offending as 'mid-range incest', and thus sentencing him in accordance with the above statements in Dalgliesh No 1. On this basis, he contended that the sentencing discretion should be re-opened, and a lesser sentence imposed (Ground 2). We will deal with this ground first.

48 The applicant acknowledges that the sentencing judge did not expressly state that she regarded the offending in this case as 'mid-range'. However, he contends that reading the sentencing reasons as a whole, it is apparent that she must have done so; and this follows from her Honour's emphasis on the seriousness of the offences, their effects on the victim and her mother, and the statement that her Honour was aware of the decision in Dalgliesh No 1. The sentences imposed are said to bolster that conclusion.

49 For the reasons given below in considering the manifest excess ground of appeal (Ground 3), the objective seriousness of the offending in this case may be thought to lie outside 'mid-range'. However, we do not accept that the sentencing judge gave any particular classification to the applicant's offending. Correctly, her Honour referred to the objective seriousness of the offending (which was and is not in contest) and referred generally to Dalgliesh No 1 and R v Kilic[32] - two obviously relevant cases to be taken into account in the sentencing task.

50 The sentencing judge's emphasis on the seriousness of the offending was correct. Her Honour's reference to the range of incest cases referred to in Dalgliesh No 1,[33] and her experience as a sentencing judge, show that her Honour likely took account of where the offending here lay on the spectrum of cases from least to worst. Each six year sentence was about one quarter of the maximum sentence of 25 years for this offence. However, it has not been shown that a 'mid-range' classification was made or applied by the sentencing judge. Ground 2 is not made out.

Ground 1 - delay and relevance of sentencing practices at time of offending

51 We turn to consider the effects of delay. As appears above, the applicant contends that close attention should be paid to the combination of the delay in laying the charges and the applicant's effective rehabilitation since he commenced his relationship with Ms Vincent in 2011.

52 In Arthars v The Queen,[34] this Court summarised the justification for taking delay into account as a mitigating factor in sentencing as involving:

the twin considerations of rehabilitation and fairness. Chernov JA in R v Cockerell,[35] in a statement subsequently affirmed in R v Tiburcy,[36] expresses these principles thus:

First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent AJA has pointed out in Schwabegger, there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender.[37]

53 In Stalio v The Queen,[38] this Court considered whether, in the context of delay between the time of offending and the time of sentencing an offender, the Court could take into account sentencing practices at the time the offence was committed. The Court accepted that those sentencing practices should be taken into account as one of the factors in the sentencing synthesis - not as the 'current sentencing practices' referred to in s 5(2)(b) of the Sentencing Act 1991, but because the sentencing practices at the time of the offending were relevant to arriving at a sentence which was just in all the circumstances.[39] This was necessary to ensure that the principle of equal justice was adhered to:[40]

The principle of equal justice requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time. In Lowe v R,[41] Mason J stated:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[42]

It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.[43]

55 The following matters should be noted about the above statement. First, Lowe involved parity between co-offenders - where the principle of equality was obviously relevant - and Stalio did not. Second, when read as a whole, the decision in Stalio does not (as the applicant contends) require a sentencing court when sentencing occurs after a substantial lapse of time from the offending to sentence in accordance with prevailing sentencing practices at about the time of the offending. Stalio requires only that 'regard can be had to sentencing practice at the time of offending for the purpose of ascertaining just punishment in accordance with the principle of equal justice'.[44] The weight to be given to this factor in any given case will depend upon its own circumstances, which will usually involve more than 'simply ... the lapse of time'.[45]

56 In this case, there is more than the simple lapse of time. The applicant was interviewed in 2007, at a relatively early time after the offences, and presumably denied them. Had he admitted the two offences which he has since been found guilty of at that time, and pleaded guilty, he would have been sentenced according to sentencing practices which then prevailed.

57 This approach to Stalio is consistent with the subsequent treatment of this issue in Bradley v The Queen,[46] and, more recently, Thrussell (a pseudonym) v The Queen,[47] where this Court (Maxwell P, Santamaria JA and Beale AJA) summarised the effect of Stalio in this regard in terms that:

'the concept of equal justice' requires regard to be had to sentencing practices at the time of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence.[48]

58 In Bradley v The Queen,[49] this Court (Maxwell P, Weinberg and Tate JJA) considered a sentence for murder imposed about 32 years after the offence. The sentencing judge moderated the sentence somewhat to allow for some measure of equal justice 'as required by Stalio'.[50] The Court said this approach did not involve error.[51]

59 The applicant contends that the principles stated in Stalio have the effect that the sentencing judge should have, and this Court must, sentence the applicant in accordance with prevailing sentencing practices in about 2008, shortly after the applicant was first interviewed in relation to the subject offending. As a fall-back position, the applicant contends that the decision in Stalio requires, at least, that the sentences in this case be moderated to recognise the delay since the time at which a trial would ordinarily have been held if he had been charged following interview in 2007 and the time he was in fact charged in 2015 (about seven years). For the reasons discussed above, the applicant's fall-back position should be accepted, and his principal submission rejected.

60 The respondent contended as follows concerning the principles discussed in Stalio.

61 First, the respondent contends that Stalio has been impliedly overruled by the High Court decisions in Kilic and Dalgliesh HCA. Reliance was placed upon the reference in the joint judgment in Dalgliesh HCA,[52] where the 1986 decision of the Court of Criminal Appeal in this State in R v Kaye[53] was described as 'remarkable, even for its own time'.[54] In that context, the High Court in Dalgliesh HCA repeated its earlier remarks in Kilic that the requirement in s 5(2)(b) of the Sentencing Act 1991 to have regard to current sentencing practices recognises that:

sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim.[55]

62 We do not accept the respondent's contentions in this regard. The requirement in s 5(2)(b) of the Sentencing Act that a sentencing court must have regard to current sentencing practices in the sense discussed in Kilic and Dalgliesh, as one factor in the sentencing mix, does not mean that other relevant sentencing factors such as the principle in Stalio, as properly understood, should be disregarded. Section 5(2)(g) of the Sentencing Act requires a sentencing court to have regard to 'the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances'. These factors or circumstances may arise from a substantial delay between the time of offending and the time of sentencing, depending upon the facts of each case.

63 Second, the respondent contends that no error in the application of Stalio principles to the facts of this case has been established. We agree. The sentencing judge set out the history of the delay in charging the applicant, and the fact that he was interviewed in relation to all the charged offences in 2007. The judge continued:

I accept that this delay has not been in any way attributable to you and I accept in the intervening period since 2011, you have made significant efforts towards your rehabilitation, including forming pro-social relationships. I accept the submissions made by [counsel for the applicant on the plea] in that regard.

64 The sentencing judge's attention was not specifically drawn to Stalio principles on the hearing of the plea. However, counsel for the applicant on the plea contended that her Honour should consider the date of offending, the 2007 interview, the sentencing regime in 2008 'or whenever the trial had run' had the applicant been charged in 2007, the lack of any fault by the applicant contributing to the delay after 2007, and the applicant's effective rehabilitation since 2001. In her sentencing reasons, the sentencing judge expressly accepted these submissions. To the extent that the complaint is that the sentencing judge did not give these matters sufficient weight, that is a matter to be considered under Ground 3 concerning manifest excess. No specific error of the kind contended for in Ground 1 has been made out.

Ground 3 - was the total effective sentence manifestly excessive?

65 In Dalgliesh No 2, a differently constituted Bench of this Court (Ferguson CJ, Weinberg and Whelan JJA) summarised the effect of Dalgliesh HCA and re-sentenced in accordance with it. The sentence of three years and six months was set aside as manifestly inadequate, and Dalgliesh was sentenced in lieu for the relevant incest offence to a term of seven years and six months' imprisonment.[56] This greatly increased sentence gave weight to a range of mitigating factors - including the fact that, through no fault of his own, Dalgliesh had to endure the strain of having had the Director's appeal hanging over his head for more than two years. This factor led to a 'slightly lower sentence ... than might otherwise have been appropriate'.[57]

66 We turn to consider whether the sentences imposed were manifestly excessive in light of Dalgliesh HCA, Dalgliesh No 2, and subsequent cases concerning incest.

67 A finding of manifest excess would require the Court to determine that the sentences were wholly outside the range of sentences reasonably available for this offending.[58] Such a finding does not depend upon identification of specific error. As the High Court stated in Dinsdale v The Queen:[59]

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than noncustodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

68 We begin with the sentence imposed on remitter in Dalgliesh No 2. The objective gravity of the offending in that case was of a higher level than in this case. It involved sexual intercourse with resulting pregnancy. It was described by the Court in Dalgliesh No 2 in the following terms:

In our view, the offending giving rise to charge 1, represented a serious example of parent-child incest. It involved a 13 year old girl who fell pregnant as a result of the respondent's entirely purposeful, and wholly reprehensible conduct. The offence was further aggravated by his having stood by, while his stepdaughter lied to her mother about who had impregnated her, resulting in the family having to be uprooted.

The victim impact statement provided by JS spoke eloquently of the harm that the respondent's conduct had inflicted upon her daughters and herself. It records A's history of self-harm and of suicidal ideation. JS herself has experienced anxiety and depression.

Sentencing for parent-child incest of the kind that gave rise to charge 1 must reflect the respondent's grave breach of trust. It must act as a deterrent, general and specific, and it must signify the community's firm denunciation of conduct of this kind.[60]

69 As we have said, the Court re-sentenced Dalgliesh to seven years and six months' imprisonment, after taking into account a range of mitigating circumstances.

70 In McCray (a pseudonym) v The Queen,[61] a decision of this Court published after the High Court decision in Dalgliesh but two weeks before Dalgliesh No 2, an application for leave to appeal against a five year sentence for incest involving repeated digital penetration by a father against his daughter over a two year period while she was aged between eight and 10 years, was refused. The relevant charge was a 'course of conduct' charge. The sentencing judge in that case sentenced on the basis that the offending occurred on numerous occasions over a two year period, involving repeated acts of digital penetration.[62] There was no Crown appeal based on manifest inadequacy.

71 In Director of Public Prosecutions v Tewksbury (a pseudonym),[63] this Court considered a Director's appeal involving (among other sentences) two sentences for incest. The offences were committed by the victim's stepfather and were separated in time. There were other indecent acts of the stepfather against his stepdaughter before, in the interim between the two incest offences, and afterwards. The first incest occurred when the victim was 12 years old, and involved lingual penetration. The offence was video-recorded by the stepfather over a seven minute period. The video shows the victim in a terrified state. The second offence occurred when the victim was aged 14. It involved digital penetration, and this offence was also filmed by her stepfather over a four minute period. The victim's obvious distress was apparent from the video, resulting in her crying hysterically.

72 The sentencing judge in Tewksbury had described the incest offences as 'mid-range examples of the crime of incest'.[64] The stepfather contended that this characterisation was an error, as the offending was 'at the higher end of the lower range of seriousness for the offence of incest' because:

those charges were limited to two discrete acts, of relatively short duration, and involved only limited digital and lingual penetration. He argued that these forms of penetration were less serious than penile-vaginal penetration. He further argued that the offending lacked aggravating features that would have placed the offending in the mid or high-level ranges such as threats, ejaculation, risk of pregnancy or sexually transmitted disease, or violence or humiliation.[65]

73 The Court rejected this contention and found that the objective gravity of the offence had been rightly characterised by the sentencing judge as mid-range.[66] The Court gave the following reasons for this conclusion:

First, the offending conduct involved lingual and digital penetration on two separate occasions. The offending occurred in the context of sexual offending against Katie over a two and a half-year period. We reject the respondent's submission that the fact that his penetration of Katie was lingual and digital rather than penile-vaginal rendered his offending less serious. Lingual and digital penetration are not necessarily less serious than penile-vaginal penetration; the gravity of the offending depends on all the circumstances of the case. In the present case, the circumstances surrounding the lingual and digital penetration of Katie were so distressing and terrifying to her, that the offending could not be considered less serious due to the absence of penile penetration.

Secondly, as the judge found, the offending was protracted. The first incident in which penetration took place lasted seven minutes and the second incident lasted four minutes. We reject the respondent's submission that the offending was of relatively short duration and that the penetration was 'limited'. The gravity of the offending cannot be assessed merely by reference to the duration of the penetration. The lead-up to the penetration in the present case involved conduct by the respondent which involved subjugation and degradation of Katie.

We also reject the respondent's submission that the offending did not involve humiliation of Katie. Katie clearly felt humiliated, as she tried to retreat and hold on to her clothing when the respondent tried to undress her. On the first occasion she covered her mouth with her hand and shook her head, and on the second occasion she covered her face with a pillow.

Thirdly, as the judge found, the offending took place in the face of Katie's protests and obvious distress. In both incidents, Katie made it clear to the respondent that she did not want to engage in any sexual activity with him. He ignored her entreaties to stop and persisted notwithstanding that Katie began to cry and tried to resist. On the second occasion, Katie was so distressed that she cried hysterically as if she was hyperventilating. We reject the respondent's submission that his offending lacked violence. Although there was no discrete act of physical violence, as this Court said in Dalgliesh [No 1], incest is an inherently violent offence which involves physical subordination of the victim.

Fourthly, as the judge found, the offending involved a gross breach of trust and abuse of parental authority on the part of the respondent towards his stepdaughter, who was entitled to feel safe in her own home.

Fifthly, as the judge found, the effect of the offending against Katie was 'grievous'. This finding is more than justified having regard to Ms Merriman's victim impact statement. Even in the absence of a victim impact statement, it can be safely assumed that, as a victim of incest, Katie suffered lasting psychological effects of the offending. There is a presumption of harm in cases of sexual offending against children and, as this Court has noted, young victims of incest carry that scar for the rest of their lives.

Also relevant to the assessment of the gravity of the offending was the fact that the respondent filmed the offending conduct without Katie's knowledge. This added a layer of degradation and indignity to the physical abuse. However, in order to avoid double punishment, we have not treated the production and possession of the videos of the incidents of incest - which comprise part of the offending the subject of charges 1 and 8 - as aggravating features of the incest offences.

It is true, as the respondent submitted, that his offending lacked some of the aggravating features, such as express threats, ejaculation and the risk of pregnancy and sexually transmitted diseases, which often attend the offence of incest. However, the absence of these aggravating features does not mean, as the respondent submitted, that his offending fell into the lower range. Their absence simply means that the offending, while grave, was not even more serious.

The judge correctly characterised the two incest offences as 'mid-range' and referred to the statement in Dalgliesh [No 1] that sentences for incest offences falling within that range had been too low historically and must be increased. Unfortunately, the sentence of 2 years' imprisonment which the judge imposed on each incest offence failed to reflect the requirement in Dalgliesh [No 1] that there be an uplift of sentencing practice, which was not the subject of any criticism by the High Court in Dalgliesh (HCA). Equally, it failed to reflect the maximum penalty of 25 years' imprisonment. [67]

74 While the emphasised portions of the above-quoted reasons provide relevant distinctions between the offending in this case and the offending in Tewksbury - making the offending there objectively more serious than here - the sentencing judge correctly described the offending here as most serious.[68]

75 On the other side of the comparison exercise, Tewksbury pleaded guilty and the applicant here did not. In incest cases, an accused who pleads guilty is entitled to more than just the usual utilitarian benefits. Importantly, added benefits mitigating the sentence flow from avoiding the victim, and other affected persons such as a parent or other close relative, from having to undergo the extreme stresses of a trial. The benefits flowing to Tewksbury from his guilty plea obviously moderated his resentencing for the incest offences. Thus, although the Court resentenced Tewksbury to five years and five years and six months respectively for the two incest offences, we readily infer that those sentences would have been substantially higher (by about three years for each offence) if, like the applicant here, he had put his victim and her family through the ordeal of a trial.

76 It is, of course, impossible to know whether or how the other offending in Tewksbury may have affected the individual sentences imposed for the two incest convictions. Tewksbury remains, however, a sufficiently comparable example of current sentencing practices to be considered as a factor in determining whether the sentences in this case were wholly outside the range of available sentences for this offending, and thus manifestly excessive.

77 McCray is also a relevantly comparable decision. Although decided after Dalgliesh HCA and in the context of a course of conduct charge, there was a guilty plea and there was no Director's appeal.

78 The use of McCray and Tewksbury is in our view consistent with the High Court's reasons in Kilic,[69] where the High Court considered a Crown appeal from a decision of the Court of Appeal in a case of intentionally causing serious injury by fire. The Court of Appeal had held that the circumstances of offending were 'truly horrific' and fell within the 'worst category of this offence',[70] but nevertheless reduced a sentence of 15 years' imprisonment with a non-parole period of 11 years to a total effective sentence of 10 years and 10 months' imprisonment with a non-parole period of seven years and six months.[71] This result was reached in the Court of Appeal because it was held that there was 'such a disparity between the sentence imposed [for the principal offence] and current sentencing practice as illustrated by the authorities relied on by the parties' that it was apparent that there had 'been a breach of the underlying sentencing principle of equal justice'.[72] The High Court allowed the Crown appeal. Relevantly, the High Court:

(1) was critical of the categorisation of the offending as being within 'the worst category' of the offence of intentionally causing serious injury, because that description should only be applied to offences which warrant the maximum penalty - and that penalty had not been imposed by the Court of Appeal. Thus, the Court of Appeal's categorisation of the offending was to be avoided in future cases where the maximum penalty was not to be imposed.[73]

(2) concluded that the Court of Appeal had been correct in observing that examination of cases of causing serious injury by fire may provide a relevant 'yardstick' by which Victorian courts can attempt to achieve consistency in sentencing, but that the range of sentences imposed in the past did not define a sentencing range. Instead, comparable cases may inform a 'broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle'.[74] However, the Court of Appeal in Kilic had 'in effect impermissibly treated the sentences imposed in the few cases mentioned as defining the sentencing range'.[75]

(3) said there were, in any event, 'too few' comparable cases of causing serious injury by fire referred to by the parties to reveal a sentencing pattern[76] and in event, the cases that were referred to, were 'disparate' rather than truly comparable.[77] This did not, however, mean that the cases could not be referred to for the purposes of considering where the offending at issue stood 'on the spectrum of seriousness'.[78] In this respect, the High Court had previously stated that sentencing judges are:

bound to consider where the facts of a particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called.[79]

79 In light of the High Court decision in Kilic, it is permissible to have regard to McCray and Tewksbury as representing recent cases on the spectrum of seriousness for incest following Dalgliesh HCA. Making due allowance for their differences in both the offending and the circumstances of the offenders, these cases assist the Court's consideration of where the offending in this case lies on the relevant spectrum of seriousness. This approach is consistent with that taken in Director of Public Prosecutions v Trueman.[80]

80 Paragraph (d) of the particulars of manifest excess seeks to challenge the sentences on the basis that there is a need for 'incremental' rather than sudden increases in sentencing practices. This particular involves a consideration of the effect of Dalgliesh HCA on this Court's previous statements to the effect that, where current sentencing practices for a particular offence are considered to be too low, they should be 'incrementally' adjusted upwards until current sentencing practices for the relevant offence reach appropriate levels which reflect the objective gravity of such offending. Such an approach cannot stand with the reasoning in Dalgliesh HCA, which requires a sentencing court in such circumstances to correct the error of principle underlying inadequate current sentencing practices and impose a just sentence according to law, even where an offender has pleaded guilty in light of current sentencing practices.[81] The incremental increase cases in Victoria should be taken to have been overruled by Dalgliesh HCA, as should the remarks of Bray CJ in R v Barber,[82] where it was said that if the prevailing standard of sentences for a particular offence is too low, 'it can be raised after due warning, but by steps and not by leaps'. It was this statement, referred to with apparent approval by the High Court in refusing special leave to appeal against sentence in Poyner v The Queen,[83] which appears to have contributed to the jurisprudence in this State concerning warnings and incremental increases, such as in the judgment of Redlich JA in Ashdown v The Queen.[84]

81 The decisions of this Court in Dalgliesh No 2 and in Tewksbury, each of which imposed greatly increased sentences above the current sentencing practices referred to in Dalgliesh No 1, implicitly proceed on the basis that the previously adopted position of this Court as to incremental increases cannot stand in light of the reasoning of the High Court in Dalgliesh HCA.

82 Considering the circumstances of this case a whole, the sentences of about one quarter of the maximum penalty were not wholly outside the range of sentences available to the sentencing judge in this case. The amount of cumulation and the non-parole period are unexceptional in the circumstances. The manifest excess ground is not made out.

83 For the above reasons, we would grant leave to appeal but dismiss the appeal.

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

[3] DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 ('Dalgliesh No 1'); DPP v Dalgliesh (a pseudonym) [2017] VSCA 360 ('Dalgliesh No 2').

[4] [2016] VSCA 148.

[5] [2017] HCA 41; (2017) 349 ALR 37.

[6] [2017] VSCA 360.

[7] DPP v Carter (a pseudonym) (Unreported, County Court of Victoria, Judge Pullen, 7 April 2017) ('Sentencing Reasons') [53]-[56].

[14] Ibid [100]-[102] (citations in original).

[15] [2016] VSCA 148.

[16] [2016] HCA 48; (2016) 259 CLR 256.

[17] [2017] VSCA 54.

[18] (Unreported, Supreme Court of Victoria Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992).

[19] (Unreported, Supreme Court of Victoria Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993).

[20] [1998] 2 VR 385.

[21] [2004] VSCA 180; (2004) 10 VR 234.

[22] [2002] VSCA 6.

[23] Dalgliesh No 1 [2016] VSCA 148 [83].

[31] Ibid [128]-[130] (citations omitted).

[32] [2016] HCA 48; (2016) 259 CLR 256 ('Kilic').

[34] [2013] VSCA 258; (2013) 39 VR 613, 620-1 [25] (citations in original).

[35] [2001] VSCA 239; (2001) 126 A Crim R 444.

[36] [2006] VSCA 244; (2006) 166 A Crim R 291.

[37] [2001] VSCA 239; (2001) 126 A Crim R 444, 447 [10].

[38] [2012] VSCA 120; (2012) 46 VR 426 ('Stalio').

[40] Ibid 440 [53] (citations in original).

[41] (1984) 154 CLR 604.

[42] Ibid 610-11; Radenkovic v The Queen [1946] HCA 17; (1991) 71 CLR 623, 632 (Mason CJ and McHugh J).

[43] Stalio [2012] VSCA 120; (2012) 46 VR 426, 441 [54] (emphasis added).

[46] [2017] VSCA 69.

[47] [2017] VSCA 386.

[48] Ibid [150] (emphasis added); citing Stalio [2012] VSCA 120; (2012) 46 VR 426, 445 [78].

[49] [2017] VSCA 69.

[52] Dalgliesh HCA [2017] HCA 41; (2017) 349 ALR 37, 49 [55]-[56] (Kiefel CJ, Bell and Keane JJ).

[53] (1986) 22 A Crim R 366.

[55] Ibid [56] citing Kilic [2016] HCA 48; (2016) 259 CLR 256, 267 [21].

[56] Dalgliesh No 2 [2017] VSCA 360 [71]-[81].

[58] Clarkson v R [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[59] [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6].

[60] Dalgliesh No 2 [2017] VSCA 360 [71]-[73].

[61] [2017] VSCA 340,

[63] [2018] VSCA 38.

[67] Ibid [67]-[75] (emphasis added) (citations omitted).

[68] Sentencing Reasons [4], [7], [101], [104].

[69] [2016] HCA 48; (2016) 259 CLR 256.

[79] Ibid 266 [19], citing Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452; Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483, 494 [27].

[80] [2017] VSCA 24 [42] (Weinberg, Whelan and Ferguson JJA).

[81] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37, 50-1 [63]-[68] (Kiefel CJ, Bell and Keane JJ); 55 [84]-[85].

[82] (1976) 14 SASR 388, 389-90.

[83] (1986) 66 ALR 264.

[84] [2011] VSCA 408; (2011) 37 VR 341, 410 [207]; see Dalgliesh No 2 [2017] VSCA 360 [21]-[22].