CRIMINAL LAW - Sentence - Total effective sentence of 25 years and seven months' imprisonment with non-parole period of 22 years - Appellant presently 53 years of age - Sentencing discretion re-opened as result of some convictions having been quashed - Overlap between at least one count which is quashed, and one count which is extant - Preferred approach to sentencing for multiple counts - Appellant re-sentenced to total effective sentence of 23 years and five months' imprisonment with non-parole period of 19 years and six months' - DPP v Grabovac [1998] 1 VR 664 and R v Izzard [2003] VSCA 152; (2003) 7 VR 480 considered.

1 I have had the advantage of reading in draft the reasons for judgment of Weinberg JA. I agree with the orders which his Honour proposes, for the reasons which he gives.

3 On 22 March 2010, the applicant pleaded guilty to seven counts of procuring a minor for child pornography; nine counts of producing child pornography; one count of sexual penetration of a child under 16 years; six counts of rape; 12 counts of indecent act with a child under 16 years; one count of administering a drug for the purposes of sexual penetration; two counts of indecent assault, and one count of being in possession of child pornography.

4 On 18 June 2010, the applicant was sentenced as follows:

Administering a drug for the purposes of sexual penetration

5 The total effective sentence was 25 years and seven months' imprisonment.[1] A non-parole period of 22 years was fixed.

6 On 6 July 2010, the applicant filed a notice of application for leave to appeal against sentence. For reasons that are not presently relevant, that application could not be heard as expeditiously as would have been desirable. On 29 July 2011, the applicant sought an extension of time within which to file an application for leave to appeal against conviction. The Registrar of this Court granted that extension on 2 August 2011.

7 It seems that in the period after the applicant was sentenced, it was discovered that, notwithstanding his plea of guilty to all counts on the presentment, several of the charges brought against him could not stand. On that basis, and on the basis of a Crown concession to that effect, the Registrar determined that the question of leave should be put to one side, and that the entire matter should be referred to this Court for determination.

8 The offending conduct all occurred between January 1996 and January 2008, when the applicant was between 38 and 49 years of age. Most of it took place at the applicant's residence, which consisted of a makeshift bedroom and large shed on his father's property. His father occupied the main house on that property.

9 Though not employed as such, the applicant taught music throughout the relevant period at a local primary school. It was through that affiliation with the school that he established contact with various families, and gave private music lessons to a number of children. These included most of the complainants.

10 The applicant's offending came to light when, as a result of an incident on 17 January 2008, a young girl, CR, complained of his conduct to the police. Subsequently, on 23 January 2008, a search warrant was executed at his premises.

11 The applicant was then arrested, and police seized a number of items. These included videos, DVDs, video camera cassettes, computer hard drives, video cameras, a bag containing clothing, folders of photographs, a homemade toilet (consisting of a crate, cushion funnel and covert video camera), a number of sexual implements (including vibrators, and a cushion with a penis-shaped attachment), and two lengths of chain with stirrups covered in pink padding.

12 The applicant willingly participated in a record of interview. He made certain admissions in relation to three complainants. He was then released from custody, pending further investigation.

13 A formal police operation then commenced. On 27 February 2008, police executed a second search warrant on the applicant's premises. He was again arrested, and further items seized. These included a vast number of compact discs, computer hard drives, computer discs, photographs and negatives, image slides, soft drink bottles containing urine, adult and child female clothing, prescription medication (including Triptanol and Zydol), cartridge ammunition, and laser pointers.

14 The applicant was again interviewed by police. On this occasion, he declined to answer any questions and was remanded in custody.

15 The subsequent investigation revealed recording devices containing footage which formed the basis of most of the charges against the applicant.[2] The police found a camera set up on a tripod in the applicant's bedroom, as well as covert cameras located in both his bedroom and in a homemade toilet at the premises. In addition, a covert camera was located in a toilet at another location.

16 The circumstances surrounding each count need only be summarised briefly.

Count 1: TW - dates of offending between 1 January 1996 and 8 May 1997

17 The applicant was engaged by TW's parents, whom he had befriended, to give her piano lessons.

18 Footage taken at the applicant's premises depicted TW, then aged 12 or 13, changing from her bathing suit into clothing. Her breasts and vagina were exposed. There was also footage of her urinating into a toilet.

19 The footage had been edited, and various sequences were repeated in slow motion. Other files consisted of still images where TW's face was superimposed onto a pornographic image (count 1 - procuring a minor for child pornography).

Counts 2 - 4: CF - dates of offending between 10 September 1997 and 9 September 2000

20 The applicant taught CF, relevantly aged between 11 and 14 at the time of the offending, to play the piano. He became close friends with her parents.

21 During an overnight stay at the applicant's house, he inserted his fingers into her vagina. CF did not recall the incident, but still images recovered by the police depicted her vagina, and digital penetration of her external genitalia. The images suggested that penetration occurred more than once (count 2 - sexual penetration of a child under 16 - representative count).

22 Still images also depicted CF in a sexualised manner or with exposed genitalia (count 3 - procuring a minor for child pornography; and count 4 - producing child pornography - rolled-up count).

Counts 5 - 9: AR - dates of offending between 28 October 1997 and 27 October 2001

23 The applicant attended AR's home at her parents' request, to give her piano lessons. During the course of these lessons, he developed a friendship with her parents. It was arranged that he would drop off and pick up AR from netball on Wednesday evenings.

24 AR, who was aged between 12 and 15 during the relevant period, was filmed by the applicant while changing into her netball outfit in his bedroom. Her vagina was visible. Still images were created from the footage.

25 Video footage also depicted AR unconscious, while the applicant inserted his penis into her vagina and into her mouth. The applicant also inserted his finger into her vagina (counts 5, 6 and 7 - rape).

26 The video file had been edited and some portions were in slow motion. Still images had been extracted from the footage. The applicant also superimposed AR's face onto other pornographic images (count 8 - procuring a minor for child pornography - representative count; and count 9 - producing child pornography - rolled up count).

Count 10: EF - date of offending between January and December 2000

27 EF was CF's younger sister. The applicant attended their home when EF was the only person present. He showed her pictures of naked children on the computer and touched her leg (count 10 - indecent act with a child under 16). She was in grade prep at the relevant time.

Counts 11 - 15: JL - dates of offending between 1 January 2004 and 31 December 2007

28 The applicant befriended JL and her family in the course of giving various family members music lessons. JL attended the applicant's residence in order to build a go-kart. Footage depicted the applicant touching her breasts and vagina while she was in various states of consciousness (counts 11 and 12 - indecent act with a child under the age of 16 - representative counts). The applicant also rubbed

a penis-shaped vibrator along JL's arm (count 13 - indecent act with a child under the age of 16).

29 There were numerous pornographic video files and still images of JL (count 14 - procuring a minor for child pornography - representative count; and count 15 - producing child pornography - rolled-up count).

30 JL was between 11 and 15 years of age at the time of this offending.

Counts 16 - 20: AW - dates of offending between 1 January 2004 and 31 December 2007

31 The applicant conducted private piano lessons at AW's home. He became a trusted friend of the family. AW came to his home on numerous occasions.

32 The police located several hours of video footage depicting the applicant touching AW's breasts and vagina, and rubbing a vibrator over her body (counts 16, 17, and 18 - indecent act with a child under 16 - representative counts).

33 They also located numerous pornographic video files and still images of AW (count 19 - procuring a minor for child pornography - representative count; and count 20 - producing child pornography - rolled-up count).

34 AW was aged between nine and 13 at the time of the offending.

Count 21: Victim unidentified - date of offending between August 2004 and August 2006

35 A video was located depicting a young girl using the toilet at the home of another man, RS. The unknown girl's vagina and bottom were exposed, and visible.

36 The footage had been edited to show the sequence over and over again. Although the applicant denied this, the evidence suggested that the unknown girl was TL (JL's sister). The applicant was presented on the basis that the victim was a person unknown (producing child pornography - count 21).

Count 22: SL - date of offence between September 2004 and September 2006

37 Police seized a video depicting SL, a young girl aged between 14 and 16 years at the time, sitting on the toilet and urinating at the home of the man RS. Her vagina and bottom were exposed, and visible (count 22 - produce child pornography).

Counts 23 - 32: ML - dates of offending between January 2005 and January 2008

38 ML (the sister of JL, TL, and SL) met the applicant through her family's close association with him. She went to his home on many occasions.

39 On one occasion, he administered a drug which rendered her unconscious. Hair sample analysis confirmed the presence of the drug Xylopedene (count 23 - administering a drug for the purpose of sexual penetration).

40 Visual footage that was seized depicted ML in a state of dizziness and/or unconsciousness. The applicant inserted a vibrator into her vagina. He also introduced his penis into her vagina, and into her mouth (counts 24, 25, 26 - rape).

41 The applicant also licked her vagina, touched her breasts, touched her vagina, and rubbed a vibrator on her body (counts 27, 28, 29, and 30 - indecent act with a child under the age of 16 - representative counts).

42 There were also located numerous pornographic files and still images depicting ML (count 31 - procuring a minor for child pornography - representative count; and count 32 - producing child pornography - rolled-up count).

43 ML was aged between seven and 10 years during the period of the offending.

44 The applicant regularly gave LS piano lessons at her home. Her mother agreed to having LS help him with a local theatre production. While driving LS home, when she was aged 15, the applicant said words to the effect, 'I can read your mind' and, 'I can tell you what your soul wants.' He placed his hand on her thigh, in the vicinity of her vagina (count 33 - indecent act with child under 16). He continued thereafter to try to touch her arm, and to kiss her.

Counts 34 - 37: CR - dates of offending between 6 February 1996 and 17 January 2008

45 CR visited the applicant at his home in order to use his computer. On several occasions, he touched her breasts and rubbed a vibrator on her body (counts 34 and 35 - indecent assault - representative counts).

46 Several pornographic video files and still images depicting CR were located (count 36 - procuring a minor for child pornography; and count 37 - producing child pornography - rolled-up count).

47 As previously stated, it was CR's complaint to her mother, in January 2008, that led to the involvement of the police. Counts 34 and 35 were said to have been committed on 17 January 2008. Counts 36 and 37 were said to have been committed between 6 February 1996 and 17 January 2008.

Count 38: Victims unidentified - dates of offending between September 1997 and January 2008

48 This count of production of child pornography was a miscellaneous and rolled-up count, in respect of numerous pornographic video files and still images depicting children, that the police seized.

49 The files included footage from the covert camera installed in the applicant's homemade toilet, as well as moving footage from the hard drive materials, depicting ML and AW.

Count 39: Victims unidentified - date of offending 23 January 2008

50 This count of possession of child pornography was a rolled-up count. The

offence involved the possession of numerous pornographic video files and still images depicting children.

51 The files included particulars from the previous counts of producing child pornography (counts 1, 4, 9, 15, 20, 21, 22, 37, and 38), as well as what the sentencing judge described as 'retail pornography' which had been downloaded from the internet.

52 There are two grounds in support of the application for leave to appeal against conviction. They are as follows:

1. [The applicant's] convictions on counts 1, 3 and 8 should be set aside in spite of [his] pleas of guilty because those counts alleged offences not known to law in the period they were alleged to have been committed.
2. [The applicant's] convictions on counts 14 and 19 should be set aside in spite of [his] pleas of guilty because those counts are defective in that they allege the commission of offences over a period which commenced prior to the introduction into law of the relevant offence.

53 In order to understand the basis upon which each of these grounds rests, it is necessary to consider, first, the statutory framework within which the relevant charges were laid and, second, the relevant dates upon which the alleged conduct the subject of each of the impugned counts occurred.

54 Section 69 of the Crimes Act 1958 was enacted in 1995,[3] and came into effect on 1 January 1996. The section originally read as follows:

A person who -

(a) invites a minor to be in any way concerned in the making or production of child pornography; or

(b) procures a minor for the purpose of making or producing child pornography -

is guilty of an indictable offence punishable on conviction by level 7 imprisonment.

55 Subsequently, and following other amendments not presently relevant, s 69 was amended in 2004 to read as follows:

69 Procurement etc. of minor for child pornography

(1) A person who -

(a) invites a minor to be in any way concerned in the making or production of child pornography; or

(b) procures a minor for the purpose of making or producing child pornography; or

(c) causes a minor to be in any way concerned in the making or production of child pornography; or

(d) offers a minor to be in any way concerned in the making or production of child pornography -

is guilty of an indictable offence punishable on conviction by level 5 imprisonment (10 years maximum).[4]

56 Section 69, in its amended form, commenced operation on 19 May 2004.

57 In the present case, the counts charged under s 69 were expressed in the language of s 69(1)(c). That is, it was alleged in respect of counts 1, 3, 8, 14 and 19 that the applicant 'cause[d]' each relevant victim 'to be in any way concerned in the making or production of child pornography'. Both the presentment, and the Crown opening tendered on the hearing of the plea, used that language specifically and in terms.

58 In that light, it is now necessary to consider the dates on which the alleged offences the subject of counts 1, 3, 8, 14 and 19 were said to have occurred:

59 Plainly, counts 1, 3, and 8 were defective because they alleged a form of offending that was not known to the law at the time the conduct in question took place.

60 Counts 14 and 19 were defective because these were 'between dates' counts, and the alleged form of offending was not known to the law for part of that period.

61 There is also a problem with count 36. That count appears to suffer from the same defect as counts 14 and 19 because it alleges that the applicant 'caused [CR] ... to be in any way concerned in the making or production of child pornography'. The period of the alleged offending, as pleaded, covers February 1996 - January 2008. As already indicated, the relevant amendment to s 69, upon which that offence rests, did not become law until May 2004. If the convictions on counts 14 and 19 must be set aside, in spite of the applicant's pleas of guilty, the same would seem to be true of count 36.

62 After the hearing of the application for leave to appeal, the Court invited the parties to file written submissions with regard to count 36. It was submitted on behalf of the applicant that count 36, as pleaded, was indeed defective. It had been pleaded as a representative count, as were counts 14 and 19. It was charged in conjunction with count 37, which alleged the making of child pornography by the recording or production of images of CR. Thus, it was to be understood that the conduct 'represented' by count 36 was defined by Schedule F, referred to in count 37. That Schedule listed 'Disc Material' and a number of still photographs, much of

which could not be dated. The possibility that some of that material was recorded prior to May 2004 could not therefore be excluded.

63 The Crown conceded that count 36, in its present form, was defective. It followed that the conviction on that count, as matters presently stood, could not be maintained. The Crown submitted, however, that this Court should permit the count to be amended, even at this late stage, because some of the offending, at least, that lay at the heart of that count must have occurred after May 2004. In practical terms, the offence was still 'representative' in nature, and the sentence imposed on the count could not be said to be inappropriate.

64 It may be that this Court has power, as submitted, to deal with this count pursuant to s 277(1)(c) of the Criminal Procedure Act 2009. That section enables this Court to enter a judgment of conviction of a different offence from that charged if satisfied that the appellant could have been found guilty of that different offence instead of the offence charged. Whether that truly amounts to an amendment of the existing count, as distinct from the substitution of a new and different offence, is perhaps a matter to be considered at another time.

65 If the Court does have the power for which the Crown contends, this is not a case, in my view, in which it should be exercised. The drafting of this presentment was careless to say the least. It must be a rare case where some six counts, and not just one or two, all suffer from the same fundamental defect. The problem was caused by the Crown in failing to give proper attention to detail when considering how to frame a charge, between dates, with full knowledge of the fact that the law in this area had been amended a number of times over the years. In addition, there is an element of speculation associated with the Crown's submission that an amendment of the count should be allowed at this stage. I decline to engage in such speculation.

66 There is no doubt, in my mind, however, that the Crown's concession that the convictions on counts 1, 3, 8, 14 and 19 cannot stand is correct. Each of those convictions must be set aside. The same must apply to count 36. Judgment and verdict of acquittal should be entered in relation to each of these six counts.

67 The consequence of the Crown's error in presenting the applicant on six counts that could not, as a matter of law, be sustained, seems to me to be that the entire sentencing discretion is reopened. The Crown did not argue to the contrary. It follows that the applicant must now be re-sentenced by this Court.

68 There are, of course, cases where an error as to a relatively small, and essentially inconsequential, component of a total effective sentence, which must nonetheless be corrected, does not result the entire sentencing discretion being reopened.

69 In Smith, Garcia and Andreevski v The Queen,[5] there was an error of that kind, but one that was of no practical significance because the particular sentence was wholly concurrent with the other, unimpeachable, sentences imposed. Ashley JA formulated the approach to be taken in such a case. His Honour said:

... in a case in which a convicted person is sentenced for multiple offences, I consider that not only will a successful appeal against a particular individual sentence not open up other individual sentences for consideration, it will not do so in respect of the total effective sentence or the non-parole period fixed unless it was the base sentence, or unless it was the subject of a total or partial order for cumulation.[6]

70 The present case is quite different from that of Smith. The sentences imposed upon the applicant in relation to the six counts which must now be quashed (six months on each of counts 1, 3 and 8, 18 months of each of counts 14 and 19 and 12 months on count 36) were all the subject of partial orders for cumulation. In effect, they added some two years to the total effective sentence. They also, no doubt, influenced the length of the non-parole period that was fixed.

71 It should be noted that there was also some, marginal, overlap between at least one of the counts which is now to be set aside, and a count that is extant.[7]

72 Ordinarily, in a case of that kind, an error of such consequence will result in the sentencing discretion being reopened.

73 In R v Fuller-Cust[8] this Court laid down the approach to be followed in such circumstances. In that case the sentencing judge had erred in characterising one of the offences for which the applicant had been sentenced as a serious sexual offence. There were also technical faults in relation to a small number of other counts. Batt JA considered that, in such circumstances, the sentencing discretion was re-opened in its entirety. His Honour said:

The upholding of grounds 6 and 7, agreed in, as I understand it, by the other members of the court, means that the sentencing discretion is re-opened in relation to the direction (or refusals of directions) as to concurrency of the sentences on counts 3, 4 and 6. Further, the sentences and directions as to concurrency in relation to the indecent assault counts are re-opened because consideration was not given to whether they were 'sexual offences' as defined, on which the application of ss 6D(a) and 6E depended. But, in my view, the re-opening goes further, extending to all elements of the total sentence. Unless this court thinks that no different sentences or directions for cumulation or concurrency should be passed or given it must resentence the applicant. This was the approach taken in R v Wakime. The mix of sentences may be affected: cf Director of Public Prosecutions v Bulfin. In the circumstances it is unnecessary for me to deal with the other grounds of appeal.[9]

74 A similar approach was taken by this Court in R v Gill.[10] There, it was held that once a sentence imposed for what was a component of a single episode of offending was excessive, the entire sentencing discretion had to be re-opened. Otherwise, there would be structural problems in the overall sentence.

... although it might conceivably be argued that the sentence on the rape count alone should stand, the sentencing exercise was an integrated one in which the judge was required to synthesise the various sentencing considerations so as to produce individual sentences and an order for partial cumulation (if he considered that the latter was required) which appropriately punished the appellant for the totality of his offending. Several aspects of the sentencing exercise having been successfully impugned, what remains must necessarily be re-examined.[11]

76 It being common ground that the applicant must be re-sentenced, the question arises as to how that task should be approached.

77 The first point to make is that the applicant seems to me to be entitled, as a matter of fairness, to have his sentence of 25 years and seven months reduced by at least the two years that were cumulated upon the other counts by reason of the convictions for the six counts that are now to be quashed.

78 If no changes were made to any other individual counts, or to any of the other orders for cumulation, that would result in a total effective sentence of 23 years and seven months' imprisonment.

79 It would, of course, be necessary in any event, to fix a new non-parole period.

80 The Crown raised an interesting approach to the re-sentencing exercise. Though conceding that the appeal against conviction on the six counts had to be allowed, it submitted that this Court should either increase the individual sentences on some of the remaining counts, or make different orders as to cumulation, so as to bring about the result that the applicant would still serve a total effective sentence of 25 years and seven months. The Crown further submitted that a non-parole period of 22 years should be reimposed.

81 The Crown's submission assumed that the sentencing judge in the present case had 'moderated' some of the sentences imposed on individual counts in order to give effect to the principle of totality. Once it became clear that six of the counts to which the applicant pleaded guilty were to be set aside, there was no longer any reason for such 'moderation'. Accordingly, the individual sentences imposed on the remaining counts could be adjusted upwards.

82 The learned prosecutor drew attention to a particular passage in the sentencing judge's sentencing remarks which, he submitted, showed that his Honour had, indeed, moderated some of the individual sentences on other counts based on totality. The passage in question is as follows:

In this exercise because there are so many counts the sentence on each count represents its relative objective seriousness at large, but also in comparison with other counts. The orders of accumulation are designed to get to a total effective sentence which I regard as appropriate.[12]

83 I reject the Crown's submission that this Court, in re-sentencing the applicant, should adjust some of the individual counts upwards so as to produce the same total effective sentence as that imposed by the judge at first instance.

84 There are several reasons for that conclusion. First, I doubt that his Honour did, in fact, 'moderate' a number of the individual sentences imposed in order to give effect to the principle of totality. Certainly, he did not, in terms, say so. And the passage upon which the Crown relied does not support any such conclusion.

85 To have approached the matter in that way would have been at odds with what this Court, in DPP v Grabovac,[13] said should be the preferred method of sentencing for multiple counts.

86 In that case, Ormiston JA (with whom Winneke P and Hedigan AJA agreed) said:

In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, ... where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences

represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a 'crushing' sentence.[14]

87 Of course, Grabovac does not lay down a rigid, and inflexible rule, as to how a sentencing judge should deal with the vexing problem of sentencing for multiple counts. It speaks only of a preferred approach, and of a 'precept or guideline' to be applied as and when practicable.

88 Nonetheless, it is fair to say that most sentencing judges adopt the approach favoured in Grabovac when dealing with multiple counts. Indeed, Grabovac has been cited with approval by this Court on a number of occasions.[15]

89 It was submitted, on behalf of the Crown, that Grabovac could not be reconciled with a number of other cases, all of which recommended an entirely different approach to sentencing for multiple offences. It followed, so it was submitted, that the sentencing judge in the present case, following that other line of authority, may well have 'moderated' the individual sentences that he imposed, rather than giving effect to the principle of totality in the approved Grabovac manner.

90 The prosecutor referred to R v Izzard,[16] and particularly the judgment of Callaway JA, which he submitted reflected what is sometimes described as the 'moderate and cumulate' approach to sentencing for multiple offences. [17]

91 In Izzard the applicant, who suffered from schizophrenia, was convicted on five counts relating to attacks on four victims. The offender was sentenced to five years' imprisonment on a count of armed robbery, and to various terms of imprisonment, all to be served concurrently, on the other counts. That made a total effective sentence of five years' imprisonment.

92 This Court held that the trial judge had erred in the way in which the sentences had been constructed. Rather than impose five years' imprisonment for the armed robbery, with all other sentences to be served concurrently, the judge should have imposed a lesser sentence for that offence, as well as lesser sentences for the other counts, and reached the figure of five years by appropriate orders as to cumulation.

93 Callaway JA indicated that it was his preferred position, when sentencing for multiple offences, that the sentencing judge 'moderate and cumulate'. He gave three reasons for doing so. First, moderation was 'a virtue in itself'. Secondly, it meant that other victims were not left to feel that the offences committed against them were 'meaningless statistics'. And thirdly, a sentence structured in that way was said to be less vulnerable on appeal.[18] It is surprising, in that context, that his Honour did not refer, at any stage, to the judgment of Ormiston JA in Grabovac.

94 Callaway JA had previously endorsed the 'moderate and cumulate' approach to sentencing for multiple counts in R v McCorriston.[19] The question to be considered is whether the two approaches are, in fact, irreconcilable, or merely alternative ways of giving effect to the High Court's clear directive in Mill v R[20] that the principle of totality must be given proper weight.

95 The decisions in Grabovac, and Izzard, were considered, and synthesised in R v Hogan.[21] There, the Court indicated that there could be no inflexible rules as to how the objective of giving effect to totality should be achieved.

96 More recently, in In Azzopardi v The Queen,[22] this Court again emphasised the need for flexibility in structuring a sentence for an offender convicted of multiple counts. Redlich JA, (with whom Coghlan and Macaulay AJJA agreed) observed:

It is always necessary to fix an appropriate sentence for each offence before considering questions of cumulation, concurrence and totality . ..[23]

97 His Honour cited Grabovac as authority for that proposition. He did not refer to any contrary line of authority.

98 It is unnecessary, for present purposes, to determine whether, as the Crown submitted, there is in truth an irreconcilable difference between the approach taken in Grabovac, and that subsequently adopted in Izzard. Frankly, however, I doubt that any such difference exists. Both cases seem to me to contemplate a degree of flexibility in the approach that a sentencing judge can adopt. Each approach has its own advantages, and disadvantages.

99 My reading of the sentencing judge's remarks in the present case does not suggest that he departed from Grabovac in favour of 'moderation and cumulation'. That being so, there is no justification, in my view, for considering whether individual sentences imposed upon the counts that remain should be adjusted upwards.

100 Even if I were satisfied that his Honour had 'moderated and cumulated', any decision by this Court to increase any individual sentence would first require the applicant to receive the statutory warning[24] of the risk that he ran in pursuing his appeal. No such warning was sought by the Crown to be given, and none was given. For that reason alone, the Crown's submission that there should be an upward adjustment on some counts (or fresh orders as to cumulation that would have the effect of increasing the total effective sentence) cannot be accepted.[25]

101 That takes me back to the task of re-sentencing the applicant. Dealing first with the gravity of the offending in this case, I consider that the applicant's many crimes fall within the worst category of this type of offence. I have reached that conclusion only after careful consideration.

102 My reasons for classifying this offending in that way are as follows: First, there is the sheer number of offences committed, bearing in mind that a number of the counts were representative in nature. Secondly, there is the length of time in which the offending occurred. Thirdly, there is the large number of complainants, and their very young ages. Fourthly, there is the fact that some of the victims were unconscious when they were abused, in one case the young girl having been drugged. Fifthly, there is the fact that not only were a number of the offences filmed, but the images were retained. Sixthly, there is the egregious breach of trust involved in most of the instances. Seventhly, the majority of the offences were planned, and some of them, at least, involved a degree of 'grooming'.

103 Turning to the applicant's personal circumstances, there seems to be little to be said by way of mitigation. The applicant is presently 53 years of age. He was brought up in Melbourne. His father, who is now 80, is described as being 'a quarter Chinese'. His mother was of European background. She died approximately 17 years ago.

104 The applicant is the eldest of four siblings. He recounts a history of harsh parental discipline, claiming to have been teased and bullied at school on the basis of his Asian appearance. He describes himself as having been a victim of sexual abuse by a female teacher whilst in grade four at primary school.

105 The applicant recounted a history of normal sexual involvement with adult females. He has a 24 year old daughter. There is no suggestion of any misconduct on his part towards her.

106 The defence tendered a report prepared by Dr Lester Walton, a consultant psychiatrist, on a plea. The report was dated 3rd May 2010. Dr Walton is of course vastly experienced in matters of this kind. It is significant that he expressed the opinion that the applicant is properly to be described as a paedophile. He stated that the applicant had exhibited paedophile tendencies for at least 20 years. He regarded him as having shown only limited remorse, and as having gained only limited insight into the harm that he had caused to his many victims.

107 The evidence of Dr Walton is of particular significance. In his report, he was asked a series of questions. Of particular importance was the following:

10. To what extent does [the applicant] have little choice in:

a. having the disorder of paedophilia;

b. experiencing inescapable sexual fantasies involving children;

1. acting out those fantasies or engaging in sexually arousing behaviour directed towards children?[26]

My understanding is that sexual preference, including a preference to be sexually involved with children, is not a matter of personal choice. Furthermore, while there are strategies which enable persons to control or redirect their sexual fantasies, the spontaneous arising of sexual fantasies which any person experiences would at times be properly described as 'inescapable' in terms of voluntary control. What is controllable is that there is no imperative necessarily to act out whatever sexual fantasies one may entertain, unless there is additional problems compromising self-control, for example, as may occur with brain-injured or intellectually disabled persons. The number is unknown, but I have certainly encountered persons in my clinical practice where they are clearly of paedophilic inclination but they have never offended against children. As far as I'm aware, paedophilic urges are no more or less strong than any other type of sexual urge, and the expression of such urges can be frustrated indefinitely without any medically deleterious consequences. Specifically in the case of [the applicant], there is reason to expect that he would have been even more able than some other paedophiles to not engage in overt involvement with children because he has apparently no difficulty finding adult woman partners and engaging in mutually satisfying sexual activity with them.

109 Dr Walton was next asked the following question:

1. [The applicant] has expressed remorse and regret to his lawyer and others in relation to his offending. Is it plausible that [the applicant]

may in fact hate his urges and behaviour but cannot stop his behaviour on his own?

Dr Walton replied:

Given that in our society there is such a strong moral taboo against sexual abuse of children, it is inevitable that a person of otherwise normal intelligence, and not afflicted by any major psychiatric illness, that some process of denial or suppression of the normal abhorrence of sexually abusing children must occur before the abuse can emerge. There is often a lengthy process of psychological rehearsal in fantasy when both the perpetrator and the victim are relatively dehumanised prior to the emergence of overt sexual abuse. Once this process becomes entrenched, then it's not surprising that it may take some time to reverse, a process which is not entirely within the voluntarily control of the subjects. Thus it is common indeed that a paedophile in the immediate aftermath of apprehension often makes no expression of remorse and may attempt to shift blame for the misconduct on the victims. There is at least a component of that discernable with [the applicant], although less so than many paedophiles that I have assessed. Furthermore, there has now been a significant passage of time since he was arrested, and it is his own claim that not only his actual sexual urges for children has subsided, but he has become increasingly aware that his behaviour is regarded with loathing by others. As yet, he remains short of being able to make a comprehensive expression of remorse, but I would not preclude the possibility that his skills in that regard may be further developed, for example, precisely that process would be one focused on sex offender treatment in which inevitably he will become involved. It was not the case that [the applicant] was simply unable to control his behaviour resulting in the offending.

Then this question followed:

1. To what extent do you consider that [the applicant] understands or has insight into the consequences of his offending on his victims?

Dr Walton answered:

I would describe [the applicant] as having quite limited insight at this stage as to the deleterious consequences for the victims. Again, I do not necessarily see that as unchangeable.[27]

110 Dr Walton's evidence speaks for itself. At this stage, the applicant represents a significant danger to young children, and is likely to continue to do so for a considerable period.

111 As I have indicated, the applicant's moral culpability for these horrendous crimes seems to me to be of the highest order. His conduct over many years must be denounced in the strongest possible terms.

112 Beyond the limited adjustments to be made to his total effective sentence as a result of the setting aside of six of the 39 convictions as previously discussed, and one other matter to which I shall now turn, I consider that he merits no additional reduction in any of the individual sentences imposed.

113 There is one exception. It seems to me that, in the particular circumstances of this case, there was some degree of overlap between the offences of procuring a minor for child pornography (count 31), and the production of that child pornography (count 32). Although these are analytically separate offences, they were so closely connected, on the evidence, as to warrant concurrency.

114 In the course of re-sentencing, therefore, I would adjust the orders made for cumulation to reflect the overlap between these two counts. I would make the sentence imposed on count 32 concurrent with the sentence imposed on count 31 and with all other sentences imposed.

115 I would re-impose each of the other individual sentences and make the same orders for cumulation as were made below. The effect would be to reduce the applicant's total effective sentence by a further two months. That would result in a new total effective sentence of 23 years and five months' imprisonment (two years having been already deducted from the total effective sentence of 25 years and seven months, as a result of the six counts upon which the applicant has now been acquitted).

116 I would fix a non-parole period of 19 years and six months.

117 As indicated, I would affirm all other sentences and all other orders for cumulation, as well as all the ancillary orders. I do so on the basis that those individual sentences and orders for cumulation seem to me to be appropriate, and certainly do not warrant any reduction.

118 Pursuant to s 6AAA of the Sentencing Act 1991, had the applicant pleaded not guilty, and been convicted, I would have imposed a total effective sentence of 28 years imprisonment with a non-parole period of 24 years.

119 Pursuant to the provisions of the Sex Offenders Registration Act 2004, I would declare that the applicant be registered as a serious sex offender in respect of counts 6, 7, 9-13, 15-18, 20-35, and 37-39, and direct that, pursuant to s 34(1)(c)(i) of the Act, as a result of having been found guilty of two or more Class 1 offences, the applicant must comply with reporting obligations under the Act for the remainder of his life.

[1] His Honour made it clear, in his Sentencing Remarks, that this was his calculation of the total effective sentence. For reasons that are not apparent, the return of prisoners contains a note to the effect that the sentence originally announced had been adjusted to one of 25 years and six months' imprisonment. However, the individual sentences fixed for each count, and the orders made for cumulation, give rise to the sentence that his Honour pronounced in Court, namely 25 years and 7 months' imprisonment. It must therefore be assumed that the 'adjustment' recorded was erroneous.

[2] The offences the subject of counts 10 and 33 were not captured visually.

[3] By the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic).

[5] [2012] VSCA 5. See also Weinberg JA [47]-[48].

[6] Ibid [1]. See also Phan v The Queen [2011] VSCA 254 (Nettle JA).

[7] Count 39 includes, as one of its particulars, the offending that was the subject of count 1.

[8] [2002] VSCA 168; (2002) 6 VR 496.

[10] [2010] VSCA 67.

[12] R v DHC [2010] VSC 325 [100].

[13] [1998] 1 VR 664, 680 ('Grabovac').

[15] See for example R v Coukoulis [2003] VSCA 22; (2003) 7 VR 45 and DPP v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14.

[16] [2003] VSCA 152; (2003) 7 VR 480.

[17] Winneke P and Vincent JA agreed with Callaway JA.

[18] Izzard 484-6 (Callaway JA with whom Winneke P and Vincent JA agreed).

[19] [2000] VSCA 200.

[20] (1988) 166 CLR 59.

[21] [2008] VSCA 279, [28]-[29].

[22] [2011] VSCA 372.

[24] Criminal Procedure Act 2009 (Vic) s 281(3).

[25] In R v Coukoulis [2003] VSCA 22; (2003) 7 VR 45, the Court did increase the sentence on some individual counts, while decreasing the sentence on others. There was no discussion, however, of the duty to warn the applicant of the risk that he ran in pursuing his appeal. Moreover, there was no statutory obligation, at a time, to give any such warning. It must also be remembered that, as a result of the decision of this Court in R v Ludeman (2010) 208 A Crim R 298, a 'sentence' for the purposes of the warning requirement in s 281(3), is the individual sentence imposed on any single count, and not the total effective sentence.

[26] R v DHC [2010] VSC 325 [95].