Crouch (A Pseudonym) v The Queen [2019] VSCA 30

1 On 9 May 2018, the appellant pleaded guilty to the charges set out in the following table and, on 16 May 2018, he was sentenced as set out in that table.[2]

Indecent act with a child under 16 [Crimes Act 1958 s 47(1)]

Incest [Crimes Act s 44(1)]

Section 6AAA Statement: 12 years with non-parole period of 9 years

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

2 All of the charges are representative charges. Pursuant to pt 2A of the Sentencing Act 1991, the appellant was sentenced as a serious sexual offender in respect of charges 3-6.

3 The offending occurred between 13 September 1991 and 7 May 1995, when the appellant was aged between 40 and 43 years, and involved two complainants. He was in a relationship with the mother of the complainant the subject of charges 1-4 ('first complainant'). The first complainant was aged between 9 and 11 years at the time of the offending against her, namely, in the period from 13 September 1991 until 13 September 1993.

4 The complainant the subject of charges 5-6 ('second complainant') was a friend of the first complainant who regularly slept over at the first complainant's house. The second complainant was aged between 8 and 11 years at the time of the offending against her, namely, in the period from 7 May 1992 until 7 May 1995.

5 On 17 August 2018, a single judge of this Court granted the appellant leave to appeal on three of his four grounds of appeal. Those grounds were as follows: first, the judge erred in having regard to the represented instances of offending in determining the sentences for the representative charges; secondly, the judge failed to take into account that 23 offence-free years had passed since the offending; and thirdly, the individual sentences, orders for cumulation and non-parole period are manifestly excessive.

6 For the reasons that follow, the appeal will be dismissed.

7 In 1988, when the first complainant was about 6 years of age, her mother commenced a de facto relationship with the appellant. The appellant and the first complainant's mother were heavy drinkers, and the appellant's offending occurred after he had been consuming alcohol.

8 The appellant began to show sexual interest in the first complainant when she was 6 years of age. He touched her breasts over her clothing. This conduct is not the subject of any charge.

9 In 1990, when the first complainant was about 8 years old, she, her mother, her younger sister and the appellant moved to a town in northern Victoria. Approximately six months later, the appellant went into the first complainant's bedroom one night and she woke to find him rubbing his fingers on the outside of her vagina (charge 3 - indecent act with a child under 16) and touching her breast. He told her not to tell anyone because they would not believe her. In the following few months, while the first complainant's mother and sister were sleeping, the appellant regularly went into the first complainant's bedroom and did the same thing.

10 When the first complainant was 9 years old, the appellant went into her bedroom and put her hand on his penis and made her masturbate him to orgasm (charge 1 - indecent act with a child under 16).

11 In the six months following the offending the subject of charge 1, the appellant regularly went into the first complainant's bed and touched her intimately, including on occasion laying naked with her and rubbing his penis against her vagina (charge 2 - indecent act with a child under 16). This conduct also occurred on camping trips.

12 When the first complainant was about 10 years of age, the appellant went into her bedroom one night and inserted his penis into her vagina (charge 4 - incest). This conduct then occurred regularly, with the appellant sometimes using his saliva as lubricant.

13 The first complainant attempted to tell her mother about the appellant's conduct, but her mother was usually drunk and she did not believe her. The appellant continually told the first complainant that no one would believe her.

14 The second complainant was raised by her grandmother. She became friends with the first complainant and her sister at school. When she was 8 years of age, she began to sleep over at the first complainant's house.

15 Soon after the sleepovers began, the appellant asked the second complainant if her grandmother had taught her about 'headjobs', to which she replied no. The next day, the appellant touched the second complainant's breast (charge 5 - indecent act with a child under 16) and vagina (charge 6 - indecent act with a child under 16) outside of her clothes. Similar touching occurred regularly when the complainant stayed over. On occasion, the appellant sexually touched the first and second complainants in front of each other.

16 The appellant and the first complainant's mother separated in 1995 and he moved away from the northern Victorian town. In approximately 1996, the first complainant reported the appellant's conduct to police, however an investigation did not result in proceedings. In the intervening years, she told friends and a former partner about the offending in general terms.

17 In 2014, the second complainant reported to police that she had witnessed the appellant offending against the first complainant, causing the 1996 investigation to be revived. The appellant was interviewed by police on 24 March 2016 and arrested on 4 April 2017.

18 In her victim impact statement, the first complainant stated that since the offending she has suffered flashbacks, anxiety, had difficulty sleeping and being intimate, and attempted suicide. She has been diagnosed with post-traumatic stress disorder and depression for which she receives counselling. She has low self-esteem, finds it difficult to trust people and feels hopeless. She stated that the offending robbed her of her childhood and ruined her life.

19 The second complainant did not provide a victim impact statement, however there was evidence at the committal that she had a difficult adolescence and early adulthood as a result of the offending.

20 The appellant was 66 years of age at the time of sentencing. The appellant's father was diagnosed with brain cancer when the appellant was about 4 years old, and that illness had a significant impact on the appellant's youth. His father died when the appellant was 24 years old. After his father's death, the appellant's relationship with his mother deteriorated and they have not seen each other for many years. He has an adopted younger brother but they do not have a close relationship.

21 The appellant left the family home when he was about 14 and a half years old and moved into a boarding house. When he was 18 years old, he married his girlfriend, who was pregnant. After the child was born the appellant learned that he was not the father, and that relationship ended. The appellant's relationship with the first complainant's mother has been his only other significant relationship.

22 The appellant worked as a welder and in other types of labouring jobs from his mid-teenage years until his 40s. He attended night school and obtained qualifications in welding and business management. Approximately one year after he moved to the northern Victorian town, he injured his back while working as a welder. Since that time, he has received a disability support pension.

23 After the appellant's relationship with the first complainant's mother ended, he moved to New South Wales and lived by himself on a rural property until 2013, when he sold it to travel around Australia. It was during that trip that he was arrested for the current offending.

24 In 2011, the appellant was diagnosed with mouth and laryngeal cancer which was treated with surgery that affected his voice. He has a degenerative condition in his lower three lumbar discs which causes him pain, particularly when travelling.

25 The appellant has no criminal history. He has a history of drinking and smoking heavily, although by 2011 he had significantly reduced his alcohol consumption. He has no history of mental illness.

26 While on remand, the appellant worked 6 days per week at the Hopkins Correction Centre, including in carpentry, and was appointed as a billet in the timber products section.

27 The judge described the appellant's offending as 'of the utmost seriousness', in that he had 'opportunistically assaulted two vulnerable children for the purposes of sexual gratification'.[3] Regarding the nature of the charges, the judge said the following in paras 9-10 of his sentencing remarks:

Each of the charges that you have pleaded guilty to are representative charges. That is each charge details a particular act performed by you which is representative of you performing that act on multiple occasions in respect of the particular victim between the dates alleged in the charge.

The fact that each charge on the Indictment is a representative charge, with multiple like acts performed by you, permits me to have regard to the whole of that offending in arriving at an appropriate proportionate sentence in respect of each of the charges you have pleaded guilty to.[4]

28 The judge had regard to the appellant's plea of guilty on the first day of his trial, after a contested committal hearing during which the complainants and other witnesses were cross-examined. He rejected the appellant's submission on the plea that his earlier offer to plead guilty to two charges of sexual penetration of a child under 16 in respect of the first complainant was evidence of remorse, as it did not in any way correspond to his criminality. He concluded that '[the appellant's] pleas of guilty do not demonstrate remorse in [his] case and [he has] offered no plausible evidence or material in that regard'.[5]

29 The judge did, however, take into account in mitigation of sentence that the appellant, by his plea, had spared the community and the complainants the burden of a criminal trial. He had regard to the fact that the appellant fell to be sentenced on the basis that he had no prior convictions, and there were 'no subsequent convictions or outstanding charges'.[6]

30 The judge found that the appellant's prospects of rehabilitation were 'to be approached with a degree of caution', despite the fact that his risk of reoffending will diminish as he becomes older, because he had 'demonstrated little or no remorse for what [he had] done and there is no evidence of any insight in that regard'.[7] He also noted that, due to the appellant's isolated lifestyle, he will have little or no support from family and friends on his release from prison. He stated that the appellant's social isolation would compound the hardship of imprisonment for him.

31 The judge stated that denunciation, general deterrence and protection of the community were relevant sentencing considerations for offences involving sexual exploitation of children. He found that specific deterrence was also relevant due to the appellant's 'lack of remorse and the absence of any plausible explanation for [his] offending'.[8] The judge rejected the appellant's submission on the plea that his offending was the product of the circumstances in which he was living, namely that he found himself in the role of a stepfather without having previously been in a significant relationship. He stated that there was nothing in the appellant's relatively stable background or upbringing to suggest that he was vulnerable or unaware of his responsibilities as an adult with children in his care.

32 The appellant's grounds of appeal are in the following terms:

1. The sentencing Judge erred in law in determining that, because the [appellant] was to be sentenced for representative counts, his Honour was permitted 'to have regard to the whole of that offending in arriving at an appropriate proportionate sentence in respect of each of the charges [he has] pleaded guilty to.'
2. The sentencing Judge erred in law in failing to take into account that following the offending to which the [appellant] pleaded guilty more than 23 years had passed during which he had not committed any further offences.

1. The individual sentences, orders for cumulation and the non-parole period imposed are manifestly excessive having regard to:

(a) the [appellant's] pleas of guilty and offer to plead guilty to offences involving the complainant for charges 1-4;

(b) the excessive weight given to the principle of specific deterrence;

(c) the insufficient weight given to the rehabilitation of the [appellant];

(d) the insufficient weight given to the passage of time since the [appellant's] offending and lack of further offences during that time;

(e) the circumstances of the offences.

33 The appellant submitted that the judge erred by, in effect, treating the representative charges as 'rolled-up' charges by having regard to 'the whole of [the] offending in arriving at an appropriate proportionate sentence in respect of each of the charges'.[9] He argued that the judge impermissibly sentenced him for the uncharged instances of the offending rather than treating those instances as part of the context within which the charged instances occurred.

34 The Crown submitted that representative charges have the effect of demonstrating that the offending the subject of the representative charges is not isolated and placing that offending in context, and that the judge was required to take into account the entirety of the offending conduct. It contended that the judge did not err in his treatment of the representative charges and that nothing in his remarks suggests that he treated them as 'rolled-up' charges.

36 Insofar as they are relevant to the present case, the principles relating to sentencing for a representative charge may be summarised as follows:

(a) A representative charge is a charge for an offence which is representative of other instances of the same offence being committed by the offender in the same manner on other occasions, within the specified period of the offending. Where a representative charge is laid, the offender is charged for the offending the subject of that charge and is not separately charged for the other instances of the offending which are represented by that charge ('represented instances of offending').

(b) The offender falls to be sentenced for the offending the subject of a representative charge but not for the represented instances of offending.

(c) The represented instances of offending are not aggravating circumstances of the offending the subject of a representative charge.[10]

(d) The maximum penalty for the offence the subject of a representative charge applies to that charge. The represented instances of offending do not have the effect of increasing the maximum penalty. The sentence that is imposed for a representative charge must be just in all of the circumstances.[11] It cannot be disproportionate to the nature and gravity of the offence the subject of the representative charge.[12]

(e) The fact that a charge is a representative charge precludes any moderation in sentence that may have been warranted if the offending the subject of that charge had been an isolated incident.[13]

(f) The fact that a charge is a representative charge enables the court to consider the offending the subject of that charge in its wider context.[14] This includes the court's assessment of the nature and gravity of that offending, the offender's moral culpability for that offending and the impact of that offending on the victim.[15]

(g) The fact that a charge is a representative charge may inform the court's assessment of the weight to be given to sentencing considerations, such as denunciation, protection of the community, specific deterrence and the offender's prospects of rehabilitation.[16]

(h) There is no rule that the sentence for an offence the subject of a representative charge must be higher than for the same offence that is not the subject of a representative charge. However, if all other things are equal, the considerations set out at (e)-(g) above may result in a higher sentence for a representative charge.[17]

(i) The number of represented instances of offending is relevant to the exercise of the sentencing discretion. As a matter of common sense, the considerations set out at (e)-(g) above are likely to warrant a higher sentence for a representative charge that is representative of 100 represented instances of offending, compared to a representative charge that is representative of two represented instances of offending. However, that does not mean that it is appropriate for a sentence to be increased in proportion to the number of represented instances of offending. That is because the court must impose a sentence for a representative charge that is just in all the circumstances and is not disproportionate to the nature and gravity of the offending the subject of that charge. The maximum penalty will also provide a yardstick for determining what is an appropriate sentence in all the circumstances.

37 Unlike a representative charge, which alleges a single offence, a 'rolled-up' charge alleges more than one offence.[18] Both types of charge can only be used with the agreement of the accused for the purposes of a guilty plea.

38 As appears from [27] above, in the present case, the judge stated that the fact that each charge on the indictment was 'a representative charge, with multiple like acts performed by [the appellant], [permitted the court] to have regard to the whole of that offending in arriving at an appropriate proportionate sentence in respect of each of the charges [the appellant had] pleaded guilty to'. That statement is consistent with the principles summarised at [36] above. We do not accept the appellant's submission that the words 'the whole of that offending' mean that the judge sentenced him not just for each representative charge but for all the represented instances of offending. In our opinion, when those words are read in context, they are intended to refer to the principle set out at [36(f)] above, namely that the represented instances of offending provide context for assessment of the representative charge.

39 Our interpretation of the judge's remarks is supported by his statement that reference to the represented instances of offending enabled him to arrive at 'an appropriate proportionate sentence in respect of each of the charges [the appellant had] pleaded guilty to'.[19] The words that we have emphasised are consistent with the principle set out at [36(d)] above and indicate that the judge did not purport to sentence the appellant for the represented instances of offending.

40 We are fortified in our view by a consideration of the sentences imposed by the judge for each of the representative charges. For the reasons discussed under ground 4, each of those sentences is consistent with recent sentences for single instances of the same offence, that is, for charges of that offence which are not representative charges. If the appellant's interpretation of the judge's sentencing remarks were correct, one would have expected that the sentences the judge imposed would have been significantly greater than recent sentences for single instances of the same offences.

Ground 2: Lengthy offence-free period since the offending conduct

41 The appellant submitted that the judge failed to appreciate the significance of the passage of more than 23 years between the period of the offending and sentencing, and his lack of offending during that period. He contended that the judge erred by not referring to that passage of time and subsequent events in the appellant's life - including his isolated lifestyle - when reasoning to the conclusion that the appellant's prospects of rehabilitation were to be approached with caution. He argued that the judge similarly erred by failing to have regard to these factual matters in concluding that specific deterrence was a relevant sentencing consideration.

42 The Crown submitted that the judge had expressly taken into account the fact that the appellant had not committed any offences since those against the complainants. It argued that the appellant did not present any compelling material to suggest that, in the preceding 23 years, he had addressed his offending behaviour or changed his life in a manner that would alleviate concerns about his behaviour. It further argued that the appellant had not provided any indication that he had developed insight into his behaviour, and he had demonstrated only limited remorse. Accordingly, so it was said, the judge's findings as to the appellant's prospects of rehabilitation, and the relevance of specific deterrence in the sentencing synthesis, were open.

44 Delay between the time an offence is committed and the time the offender is sentenced is relevant to the exercise of the sentencing discretion, particularly if the delay is lengthy and the offender has not reoffended during that period. These circumstances may inform important sentencing considerations such as the risk of reoffending, specific deterrence and the offender's prospects of rehabilitation. However, a lengthy interval between the offending and the sentence during which the offender does not reoffend does not necessarily require the court to make favourable findings about these sentencing considerations. That is because the court must make findings on those considerations based on all the circumstances of the case.

45 In cases of historical sexual offences, it is not unusual for many years to pass between the offending and charges being laid, and for the offender to have been a law abiding citizen during the intervening period. In such cases, it is important that 'the antiquity of the offences and the [offender's] ... blameless life since then [do not result in] sentences [that] devalue the gravity of the offences'.[20] In Director of Public Prosecutions v Toomey,[21] Vincent JA referred to the profound harm that is caused by sexual offending against child victims and the lifelong unjustified feelings of embarrassment, shame and guilt that are often induced.[22] The need for general deterrence and denunciation remain very important sentencing objectives even though the offending took place many years previously.[23]

46 In the present case, the judge was aware of the chronology of events relating to the appellant, as set out in the prosecution opening, including the interval of 23 years between his offending and sentence. The judge's statement that the appellant fell to be sentenced on the basis that he did not have any prior convictions and there were 'no subsequent convictions or outstanding charges'[24] clearly indicates that the judge was not only aware that the appellant did not commit any offences during that interval, but took that fact into account in sentencing him. Accordingly, we reject the appellant's submission that the judge disregarded that fact in the exercise of his sentencing discretion.

47 In circumstances where the appellant did not demonstrate remorse, insight into his offending or empathy towards his victims, it was open to the judge to find that, notwithstanding that the appellant did not reoffend for 23 years, his prospects of rehabilitation were guarded and that specific deterrence remained a relevant sentencing consideration.

48 In any event, even if the judge had failed to give sufficient weight to the fact that the appellant did not reoffend for 23 years, for the reasons set out under grounds 1 and 4, we are not satisfied that a different sentence should be imposed for any of the charges.[25]

49 The appellant acknowledged that his offending was very serious, that representative charges usually result in heavier sentences than non-representative charges and that there was a statutory presumption of cumulation on charges 3-6, for which he was sentenced as a serious sexual offender. However, he submitted that the individual sentences, orders for cumulation and the non-parole period are manifestly excessive because the judge gave insufficient weight to matters which indicated the appellant's rehabilitation, and gave excessive weight to the nature of the offences and specific deterrence which, as noted at [41] above, he argued had little relevance.

50 The appellant contended that, despite the judge's s 6AAA statement, it was not apparent from the sentences imposed that the judge had accorded him any benefit for his pleas of guilty, despite those pleas being indicative of some remorse, facilitating the course of justice and sparing the complainants the ordeal of a trial.

51 The Crown submitted that the sentences imposed were open to the judge having regard to the seriousness of the offending and the appellant's personal circumstances. It contended that the offending was serious having regard to: the ages of the complainants; the relationship between the appellant and the first complainant; the location of the offending in the first complainant's home; the fact that the complainants witnessed some of the offending against each other; the appellant's warnings to the first complainant not to tell anyone about the offending and that if she did no one would believe her; the lengthy and continuous period of the offending; and the devastating impact of the offending on the complainants.

52 The Crown argued that, against the seriousness of the offending, there was little that the appellant was able to call in aid in mitigation of sentence: there was no evidence of remorse, insight into his offending or victim empathy, and no evidence to support a strong positive finding regarding his prospects of rehabilitation.

53 In our opinion, for the reasons advanced by the Crown, no aspect of the sentences imposed by the judge is manifestly excessive.

54 The judge was right to describe the appellant's offending as 'of the utmost seriousness'.[26] As noted by the judge, the appellant 'opportunistically assaulted two vulnerable children for the purposes of sexual gratification'.[27] The offending involved a gross breach of trust by the appellant towards two very young girls who were in his care and entitled to feel safe in his home. The victim impact statement of the first complainant demonstrates the profound and life changing effects the offending had on her. Although the second complainant did not prepare a victim impact statement, it can be assumed that the offending had serious adverse effects on her.[28]

55 It must also be borne in mind that in respect of charges 3-6, the appellant was sentenced as a serious sexual offender. Under s 6D(a) of the Sentencing Act, the judge was obliged to have regard to the protection of the community from the appellant as the principal purpose of the sentence to be imposed on him. Notwithstanding the power conferred on the judge by ss 6D(b) and 6E to impose a sentence that was disproportionate to the gravity of the offending and to order full cumulation for all of the charges, he imposed a proportionate sentence and ordered moderate cumulation.

56 The sentences imposed by the judge are consistent with sentences imposed since the High Court decision in Director of Public Prosecutions v Dalgliesh[29] for incest and indecent act with a child under 16, in which the charges were for single instances of offending rather than representative charges.

57 In relation to incest, relevant cases include Director of Public Prosecutions v Dalgliesh[30] (7 years, 6 months' imprisonment); Carter v The Queen[31] (6 years' imprisonment); Grantley v The Queen[32] (5 years, 6 months' imprisonment); Phillips v The Queen[33] (6 years' imprisonment) and Thrussell v The Queen[34] (6 years' imprisonment).

58 In relation to indecent act with a child under 16, a sentence of 3 years' imprisonment for one charge of that offence was upheld by this Court in Phillips.

59 For the above reasons, the appeal will be dismissed.

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

[2] DPP v Crouch (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 16 May 2018) ('Sentencing remarks').

[10] Lord v The Queen [2013] VSCA 80 [21] ('Lord').

[11] Sentencing Act 1991 s 5(1)(a).

[12] Sentencing Act s 5(2)(c). See R v SBL [1998] VSCA 144; [1999] 1 VR 706, 724 [64] ('SBL').

[13] SBL [1998] VSCA 144; [1999] 1 VR 706, 726 [70]; DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 542 [38] ('CPD'); Reid v The Queen [2014] VSCA 145; (2014) 42 VR 295, 308 [75] ('Reid'); DPP v Walsh [2018] VSCA 172 [19] ('Walsh'); Bromley v The Queen [2018] VSCA 329 [58] ('Bromley').

[14] SBL [1998] VSCA 144; [1999] 1 VR 706, 726 [70]; CPD [2009] VSCA 114; (2009) 22 VR 533, 542 [38]; Reid [2014] VSCA 145; (2014) 42 VR 295, 308 [75]; Walsh [2018] VSCA 172 [19]; Bromley [2018] VSCA 329 [58].

[15] Sentencing Act s 5(2)(c), (d) and (daa). See DPP v McMaster [2008] VSCA 102; (2008) 19 VR 191, 202 [49] ('McMaster'); Lord [2013] VSCA 80 [21].

[16] Sentencing Act s 5(1)(b), (c), (d) and (e). See McMaster [2008] VSCA 102; (2008) 19 VR 191, 202 [49]; Lord [2013] VSCA 80 [21].

[17] Beyer v The Queen [2011] VSCA 15 [17]; Bromley [2018] VSCA 329 [59].

[18] R v Jones [2004] VSCA 68 [12]-[13]; Reid [2014] VSCA 145; (2014) 42 VR 295, 307-8 [73].

[19] See [27] above (emphasis added).

[20] DPP v Toomey [2006] VSCA 90 [14] ('Toomey'); Bromley [2018] VSCA 329 [70].

[21] [2006] VSCA 90.

[22] Toomey [2006] VSCA 90 [17], [22].

[23] Toomey [2006] VSCA 90 [14], [17]; Bromley [2018] VSCA 329 [71].

[25] Criminal Procedure Act 2009 s 281(1)(b).

[26] See [27] above.

[27] See [27] above.

[28] See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 364 [3], 368-71 [26]-[33]; DPP v Tewksbury [2018] VSCA 38 [72].

[29] [2017] HCA 41; (2017) 349 ALR 37.

[30] [2017] VSCA 360. This judgment followed the proceeding being remitted to this Court by the High Court.

[31] [2018] VSCA 88.

[32] [2018] VSCA 112.

[33] [2018] VSCA 114 ('Phillips').

[34] [2017] VSCA 386.