Cole (a Pseudonym) v The Queen [2015] VSCA 44

5 The jury's verdicts at his trial established that the appellant indecently touched his step-daughter, 'J', on several occasions in 2009. J was then aged 12 years, and the appellant was aged 39.

6 Charge 2 related to an occasion when J was seated on a couch in the lounge room. The appellant came from behind J. He pushed her shoulder towards the couch and then put his hand down her top, underneath her bra, and touched her breasts. J 'sort of' screamed. She told the appellant to stay away.

7 On another occasion, J was lying on her bed listening to the radio. The appellant came into her bedroom and put his hand up her skirt towards her inner mid-thigh. J kicked his arm off her. These events were the basis of charge 3.

8 Charge 4 also related to an occasion in J's bedroom. J was sitting on the floor next to her bed when the appellant came in. He put one hand on J's shoulder and pushed her back, and put his other hand down her top underneath her bra and touched her breast.

9 J complained to police in August 2009, and the appellant was interviewed. The police had decided by early 2010, however, not to charge the appellant. It was not until J's sister, 'N', later made her own allegations against the appellant that he was charged with any offence relating to J. In April 2014 the police charged him with offences involving both N and J.

10 At trial, the indictment was severed, so that there were separate trials respectively of the charges concerning N and J. A jury acquitted the appellant of the charges relating to N. Another jury acquitted the appellant of the first charge involving J, but, as we have mentioned, found him guilty of charges 2, 3 and 4.

11 There had been a five year delay between J first complaining to the police, and the finalisation of the charges relevant to her allegations. That delay, as the judge accepted, was not attributable to the appellant. Moreover, as the judge accepted, the appellant's rehabilitation had been ongoing during the period of the delay. By the time that he was sentenced, the appellant had formed a new family, had a child - his partner was pregnant with her second child - and had completed a parenting course with his partner. Counsel submitted that the delay should have been treated as a powerful mitigatory feature,[5] but that it must have been devalued in the exercise of the sentencing judge's discretion.

12 Further, counsel submitted that, although the judge made no allusion to prospects of rehabilitation in his reasons for sentence, the appellant's prospects must be seen as 'better than good'. The available material compels the view that this is so, given the appellant's strong work history, lack of prior or subsequent convictions and the support enjoyed from his new family.

13 Counsel also sought to rely on an affidavit of the appellant's solicitor, Emily-Jane Clark, affirmed 16 March 2015. The effect of the matters deposed to was that the appellant's partner's mental state had indeed deteriorated since the judge was told of it during the course of the plea hearing, and her children had been the subject of protective intervention. Counsel sought to rely on the affidavit as fresh evidence going to exceptional family hardship, and also as providing material relevant to resentencing should the appeal succeed.[6] Although the respondent's counsel accepted that the contents of the affidavit might bear on the sentencing discretion were this Court called upon to sentence the appellant afresh, he did not accept that the material constituted fresh evidence. The Court resolved to receive the affidavit, and to determine the use to which it might be put (if any) after hearing full argument.

14 With respect to the merits of the appeal, counsel for the respondent submitted that the judge was cognisant of the effects of delay. But his Honour was required to balance the 'inordinate delay' and the 'lengthy period of rehabilitation' against the serious features of the offending, which involved a serious breach of trust of a step-father vis-à-vis a 12 year old child in her own home over an extended period. Properly synthesised, the absence of any prior or subsequent offences; distress flowing from the appellant's late charging; and the appellant's ongoing rehabilitation; did not lead to the conclusion that the sentence imposed - individual sentences, orders for cumulation, total effective sentence and non-parole period - was manifestly excessive.

15 Notwithstanding J's young age, the breach of trust represented by the appellant's conduct and the effect on the offending on the complainant, we have concluded that the individual sentences on charges 2, 3 and 4, the total effective sentence and non-parole period are manifestly excessive.

16 On one level, of course, any offending of a sexual nature against a child is serious. The particular offending in this case, however, cannot be said to be at the high end of the spectrum of seriousness for such offences. Although the victim was a child, and the appellant's conduct - particularly on charges 2 and 4 - was intrusive and distressing, the offending must be put into perspective. Offending of this kind is by its very nature serious, but the seriousness of the offending in the individual circumstances of this case should not be overstated. Indeed, the sentencing judge seems to have accepted that the offending was short-lived, and that none of the relevant events extended beyond mere seconds.

17 It cannot be gainsaid that the appellant could not call in aid in amelioration of sentence any plea of guilty. And we do not ignore that the appellant was to be sentenced as a serious sexual offender on charge 4. But in our opinion, the sentences imposed on the individual charges, and the total effective sentence produced after orders for cumulation, would have been appropriate for offending of a more serious kind.

18 When an appellate court is confronted with a claim of manifest excess, the members of the court intuitively synthesise for themselves all relevant features bearing on sentence. Manifest excess is, as has been said repeatedly, a conclusion. Thus, if the sentence under review is within the range of sentences open in the sound exercise of discretion when all relevant factors are synthesised, appellate intervention is not warranted (no matter that the members of the court would have, if sentencing at first instance, imposed a different sentence).

19 Since manifest excess is a conclusion, it is generally unproductive to endeavour to identify a factor (or factors) which might have led a sentencing court to impose an excessive sentence. That said, the delay in this case was, as counsel for the appellant submitted, a powerful mitigating feature. The delay of five years between the initial complaint to police and resolution of the charges, during a lengthy part of which the charges hung over the appellant's head, was considerable. Acknowledging that the weight to be given to delay as a mitigating factor will depend on the particular circumstances of a given case,[7] it seems to us that, properly weighted, the delay should have dictated a sentence far less severe than that imposed. As counsel for the appellant pointed out, the judge seems to have accepted that there had been 'ongoing' rehabilitation during the five year delay between offending and sentence. The judge purported to reflect that when he said that he would order partial concurrency of the sentence on charge 4 'to reflect matters such as the delay in this matter, the nature of [the appellant's] offending, [his] lack of antecedents and [his] positive prospects of rehabilitation'. In our view, however, the appellant's continuing rehabilitation, and his distress at having the matter unresolved for a long time, is not reflected adequately in the sentence imposed. The appeal must be allowed and the appellant be resentenced.

20 We would add the following. The appellant is now aged 45 years. Between the time of the offending and the time of sentence, he had, as we have mentioned, formed a new family, had a son, and completed a parenting course with his partner. Evidence before the sentencing judge showed that, upon the appellant's imprisonment, significant hardship would befall his partner (who, as we have said, was pregnant with her second child). The evidence also suggested that the anticipated birth of a new infant in the appellant's absence would render his partner susceptible to a return of the post-natal depression that she had previously suffered. She would also probably lose her accommodation. It is to be noted that the judge accepted that these factors would make the appellant's imprisonment 'a burdensome experience as a consequence'. As the affidavit of Ms Clark shows, the appellant's partner has suffered a deterioration of her mental state. The Court having determined that the sentence first imposed is manifestly excessive, we have, of course, taken into account the matters deposed to in Ms Clark's affidavit, together with the constellation of other relevant features, in determining the sentence to be imposed.

21 Counsel had sought a CCO from the sentencing judge. At the time of sentence, however, the judge did not have available to him this Court's guideline judgment in Boulton,[8] which makes plain that 'if the CCO is to serve the purpose which Parliament quite clearly envisaged for it, sentencing courts (including this Court) need to rethink the conventional wisdom about whether prison is really the only option'.[9] In Boulton, the Court 'was at pains to spell out the grave disadvantages of imprisonment, both for the offender and for the community, and the unique advantages of a CCO in enabling real punishment to be imposed at the same time as advancing the offender's rehabilitation in a way no prison term ever can'.[10]

22 In our view, general deterrence, specific deterrence, denunciation and just punishment may all sufficiently be reflected in the imposition of a CCO. More to the point, when imposing sentence, the judge should have recognised that this is so by himself imposing a CCO rather than a term of imprisonment. At the risk of repetition, the sentence imposed was manifestly excessive. It must be set aside, and this Court must resentence the appellant. In so doing, we would, as we have said, impose a CCO.

23 The appellant has, to this point, spent some 19 weeks in custody. Notwithstanding the significant punishment that the appellant has thus undergone, we are of the view that some further period of community work is necessary to satisfy the purposes of sentencing beyond that of rehabilitation.

24 The Court having ordered[11] and received[12] a report, the appellant will, with conviction be sentenced to a CCO of two (2) years duration upon the conditions specified in s 45 of the Sentencing Act 1991, together with conditions that he perform 200 hours' community work over two years;[13] undergo such assessment and treatment for alcohol use or dependency as may be directed by the Secretary;[14] and undergo assessment for, and participate in, the Sex Offender Advice and Treatment Services as may be directed by the Secretary.[15]

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

[2] Crimes Act 1958, s 47(1). The maximum penalty is imprisonment for 10 years.

[3] Charge 1 on the indictment was also a charge of indecent act with a child under 16. The jury acquitted the appellant on that charge.

[4] On charge 4, the appellant was, pursuant to s 6E of the Sentencing Act 1991, sentenced as a serious sexual offender.

[5] Counsel cited R v Merrett, Piggot and Ferrari [2007] VSCA 1; (2007) 14 VR 392, 400 [35]-[36].

[6] Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451, 462-3 [43].

[7] GEM v The Queen [2010] VSCA 168, [49] (Maxwell P and Weinberg JA).

[8] Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 ('Boulton').

[9] Sherritt v The Queen [2015] VSCA 1, [46] (Maxwell P).

[10] See also McAleer v The Queen [2015] VSCA 4, [23]-[25].

[11] Sentencing Act 1991, s 8A.

[12] Ibid s 37(b).

[13] Ibid s 48C.

[14] Ibid s 48D(3)(b).

[15] Ibid s 48D(3)(f).