Court of Appeal (Vic)|2012-09-21|Before: Neave JA, Osborn JA

D M v The Queen [2012] VSCA 227 (21 September 2012)

R v [DM] (Unreported, County Court of Victoria, Judge Mullaly, 11 June 2010)

1 I agree with King AJA that the appeal against sentence should be dismissed.

2 I have had the advantage of reading the judgment of King AJA in draft form and I agree with it.

3 This is an appeal by DM against a sentence of six years and nine months' imprisonment, with a non-parole period of four years and four months, which was imposed on him in the County Court following his plea of guilty to three charges of an indecent act with or in the presence of a child under 16 (charges 1, 2, and 5) and two charges of incest (charges 3 and 4), with his 14 year old daughter.

4 The maximum sentences for the offences, the individual sentences imposed and the orders for cumulation made by the learned sentencing judge are set out below:

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

5 The judge declared pursuant to s 6AAA of the Sentencing Act 1991 that the sentence he would have imposed but for the plea of guilty would have been nine years and eight months' imprisonment, with a non-parole period of six years and eight months.

6 On 3 February 2012, the appellant was granted leave to appeal against sentence on the following grounds:

The sentencing judge erred in his application of the principles in R v Verdins.

The individual sentences, orders for cumulation, the total effective sentence thus produced and the non-parole period are each manifestly excessive.

7 At the hearing of the appeal on 30 May 2012, the appellant was granted leave to add the following additional ground of appeal ('additional ground'):

The learned sentencing judge erred by finding that nothing raised by way of mitigation reduced the appellant's moral culpability.

8 The offences occurred in early 2008, when the appellant was living alone with the victim, his biological daughter, in Camperdown. The victim had previously experienced 'less than ideal' parental care when living with her mother and stepfather, and had then lived in foster care for a period due to problems with the appellant's then partner. The appellant's offending commenced in February 2008 when he asked the victim about her sexual experiences, and told her that he would 'help her out' for her first time. Over the following month, he purported to give the victim 'lessons' about sex. In particular, the appellant instructed the victim to remove her clothes and touched her vagina (charge 1), he ejaculated in the victim's presence seven times (charge 2, which was a representative charge), vaginally penetrated the victim digitally and by tongue (charges 3 and 4, both of which occurred on the same occasion), and asked the victim to masturbate him to ejaculation (charge 5).

9 On 14 March 2008, the victim told her doctor about her father's abuse, which led to his arrest on 19 March 2008. When he was interviewed by police, the appellant denied the allegations against him. He told police that he suffered from Tourette's syndrome, which caused him to masturbate, but said that he did not do so in his daughter's presence.

10 After a committal, in which the informant was cross-examined as to the delay in bringing proceedings against him, the appellant pleaded guilty to the charges against him.

11 In his reasons, the learned sentencing judge noted that the abuse occurred in the context of the appellant giving the victim 'lessons or teaching her about sex or how to give pleasure to a male partner' and that this pretext added to the perversity and seriousness of the appellant's conduct. He said that:

All parents give life lessons to children, mostly, by their good example of the right way to grow up. You perverted this natural process by trying to give your offending a sense of normality, or even helpfulness, to [the victim] as she grew up. It shows a troubling side of your character, disturbing enough though that is, by reason of your offending itself.[1]

12 His Honour described the victim as 'particularly vulnerable',[2] and referred to her difficult upbringing, including the 'less than ideal' parental care she received from her mother and stepfather. He went on to say that:

[the victim] had a sense that, in all her difficulties, this was the time that you would look after her. You abused her trust in those circumstances of which you were well aware. This makes your offending more serious. Of course, offending of this kind, by any parent, always involves an appalling abuse of trust.

...

What you involved your child in for your own perverse pleasure was appalling and any fair-minded member of our community would be sickened.[3]

13 The judge said that although the appellant's offending was relatively short-lived, and was not in the worst category, it was nonetheless a 'serious example of these grave crimes',[4] that nothing raised in mitigation diminished the appellant's moral culpability and that although the appellant had a chance to reflect on his actions and desist from offending, he did not do so.[5]

14 His Honour referred to the victim's 'heartfelt' and 'compelling' victim impact statement, in which she said that she found it hard to trust people, had recurring nightmares and in the past had felt the need for self harm.[6]

15 In considering the appellant's personal circumstances, the judge noted that he was then aged 45 years and was described by his counsel as an 'isolated and lonely man'. The judge noted that the appellant was confused about his actions, for which he felt 'shame and revulsion'.[7]

16 The judge accepted that the appellant's own upbringing had 'tragic aspects'. In particular, he had discovered his mother's body after she had committed suicide in the family home.[8] He had received treatment for depression, and in 2000, he was diagnosed with Tourette's syndrome, which caused him to make 'slight involuntary moments' and 'some noises from time to time'. The judge accepted that these conditions would make prison more burdensome for the appellant than for a person not suffering from those conditions, and took this into account in his favour.[9]

Apart from your Tourette Syndrome, and to a slight degree your depression, which makes gaol more onerous, I do not see any application of the principles in Verdins as was argued by your counsel.[10]

18 His Honour took into account the appellant's plea of guilty,[11] and his genuine remorse[12] (which was evidenced by the fact that he was taking medication to suppress his libido) as mitigating factors. The fact that the appellant was taking this medication was also regarded as relevant in assessing the appellant's likelihood of re-offending.

19 The judge referred to a report prepared by clinical psychologist Jeffrey Cummins, which expressed the opinion that if the appellant received treatment for depression and participated in a sex offender treatment program, his risk of offending was low, but that if he remained depressed, there was a moderate risk that he could re-offend. On that basis, his Honour considered that the appellant was 'in the middle of the spectrum' for risk of re-offending.[13]

20 The appellant contended that his depression played a causative role in his offending, and accordingly, that the judge had erred in failing to find that his moral culpability was reduced. In his written case, the appellant argued that the error was demonstrated by comments made by his Honour during the plea hearing when the judge said that because such offences are not usually committed by unimpaired persons, the Verdins principles were not applicable to them.[14]

21 In his oral submissions, the appellant relied on the report of Mr Cummins, who diagnosed him with Dysthymic Disorder ― a depressive disorder one level of severity below a major depressive disorder ― and said that:

In my opinion his feelings of loneliness, depression and rejection most probably played a role in his offending behaviour. Further, he acknowledged at interview he did regard sex as a coping strategy for him and in my opinion this was also relevant in terms of his offending behaviour.

22 A link between the appellant's offending and his depressive state was said to have been established by the fact that Mr Cummins had assessed the appellant's risk of re-offending as low, if he received appropriate mental health treatment for his depression and anxiety, but as moderate if this did not occur.

23 Counsel for the appellant argued that since the appellant's depression and use of sex as a coping strategy were relevant to his offending, he should not have been sentenced on the same basis as an offender without these difficulties. Reliance was placed on Pato v The Queen,[15] in which Hansen JA (with whom Harper JA agreed) said that:

Accepting that the appellant was suffering from severe depression, alcoholism and anger management problems at the time of the offending, his moral culpability should be regarded as less than that of a hypothetical person without those disadvantages who offended in a similar way...

Similarly, as to the matter of general deterrence, I regard the appellant's condition as impairing his ability to make appropriate judgments and calm and rational choices. Of course, he was drunk at the time of his own volition, but that drunkenness must be seen as part of his alcoholic and depressive state. In my view, the judge was entitled to give less weight to general deterrence than he otherwise might have.[16]

24 Counsel for the Crown relied on the decision of this Court in Charles v The Queen,[17] in which Robson AJA (with whom Redlich and Harper JJA agreed) said that:[18]

The following principles may be discerned from these authorities when dealing with the establishment of a link between a mental condition and the offending conduct.

The Verdins' principles are and should be should be regarded as exceptional.
The onus lies on the offender to establish the facts to enliven the Verdins' principles on the balance of probabilities as a mitigating factor.
Cogent evidence, normally in the form of an expert opinion, is ordinarily necessary if the principles in Verdins are to be enlivened.
It is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence and how it is likely to affect him or her in the future.
The offender must establish that the offender's disability had the effect of impairing the offender's ability to exercise appropriate judgment, or impairing the offender's ability to make calm and rational choices or to think clearly at the time of the offence.
Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to have some "realistic connection" with the offending; or "caused or contributed" to the offending; or is "causally linked" to the offending.

25 The Crown submitted that Mr Cummins' opinion that the appellant's depression 'most probably' played a role in his offending, without any detailed explanation as to the basis for that opinion, did not constitute such 'cogent' evidence, and that the burden cast upon the appellant had not been satisfied.

26 At the plea hearing, the main Verdins submission made on the appellant's behalf related to whether he was an appropriate vehicle for general deterrence. The statement made by his Honour on which the appellant relied was made in that context, and upon examination, does not support the error alleged in the written submissions. There were no submissions made by counsel that the first limb of Verdins ― that of reduction of the appellant's moral culpability ― had been enlivened. Counsel on the plea submitted that the relationship between the offending and the appellant's depression called for a 'slight' degree of moderation of the sentence in the area of general deterrence and custodial hardship.

27 In Verdins,[19] this Court referred to the New South Wales Court of Criminal Appeal decision in R v Matthews,[20] in which the reason for giving less weight to general deterrence in the case of an offender suffering from mental disorder or abnormality was explained as follows:

the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.[21]

28 In R v Vuadreu,[22] Ashley and Weinberg JJA considered an appeal against sentence imposed for handling stolen goods and possessing drugs, in which the offender suffered from depression. It was argued that the learned sentencing judge had erred in his assessment of the relevance of the appellant's depression to his moral culpability. The Court stated that:

It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded, as exceptional. They should not be invoked in what can fairly be said to be routine cases of the type presented by the appellant as outlined by Dr Lechner in her report. In the present case there was no basis for concluding that the appellant's behaviour resulted from some 'impaired mental functioning' on his part.[23]

29 The fact that the appellant was feeling lonely and rejected, even when combined with depression, does not demonstrate that he did not understand the wrongfulness of his actions. There is no explanation in the report of Mr Cummins as to why or how these feelings of loneliness, depression and rejection played a role in the appellant's offending behaviour. There is no material put forward or relied upon other than comments that these factors 'most probably played a role in his offending behaviour'. Equally, there is nothing in the report about how the appellant's use of sex as a coping strategy contributed to his offending behaviour.

30 The offending in this matter was not a one-off offence. The appellant offended on a number of occasions, thus providing him with the opportunity to reflect on his conduct and its likely impact on this daughter. He contrived to provide false explanations and information to demonstrate to his 14 year old daughter that what he was doing was acceptable and the normal behaviour of a loving parent. This clearly demonstrates his knowledge of the wrongfulness of his actions. When apprehended, he was aware of the criminality of his conduct and he has expressed significant remorse and referred to his shame at treating his child in this manner. It is clear that he is, and was, fully cognisant of the wrongfulness of his actions and the moral culpability of his offending.

31 In Sikaloski v The Queen,[24] this Court said that ongoing planning and management are relevant in determinating the application of Verdins.[25] Further, the Court stated that:

It is trite to say that the burden of establishing a causal link between the offending and any mental condition rests squarely on the defence. Having considered any medical evidence presented by the defence, a trial judge may be entitled to conclude that the offender's mental condition did not sufficiently contribute to the offending such as to warrant any mitigation of the sentence otherwise appropriate.[26]

32 Moreover, even if it were accepted that the appellant's depression played some minor part in his offending , I do not consider that having regard to all relevant sentencing factors, any different sentence should be passed.

33 The appellant contended that his sentence was manifestly excessive, since his offending was in the 'lower range'. He relied on the following factors:

Lack of relevant prior or subsequent offences;
Absence of aggravating features, such as force or violence;
The relatively short period of offending;
The fact that the appellant sought voluntary treatment after he had offended and was willing to engage in ongoing treatment;
The age of the victim, who was said to be 'relatively older' than most victims of such offending;
The appellant's 'profound remorse';
The plea of guilty;
The fact that the appellant would find imprisonment particularly difficult because of his Tourette's syndrome and depression; and
The relative unlikelihood of reoffending.

34 Reliance was placed on sentencing statistics, showing that between 2004-05 to 2008-09, the median length of imprisonment imposed for the principal offence of incest was four years.[27]

35 Counsel for the appellant also argued that the learned sentencing judge gave excessive weight to the nature of charge 2 as a representative count. In his reasons, his Honour said that:

in respect of Count 2, this is a representative charge. The effect of this is to make the offending, presented or charged, as a single charge a more serious example of that offence because it is representative.[28]

36 The Crown contested the submission that the characteristics of the offending placed it in the lower range of this kind of offence. The matters taken into account by the judge in assessing the seriousness of the offences indicated that he had correctly assessed the appellant's degree of moral culpability. In addition, the appellant fell to be sentenced on charges 3, 4 and 5 as a serious sexual offender. Although s 6E of the Sentencing Act 1991 created a presumption that the sentences imposed on these offences would be served cumulatively, the orders for cumulation made by his Honour were relatively modest.

37 During the plea, the Crown had submitted that an appropriate sentencing range would be a total effective sentence of six to seven years, with a non-parole period of three and a half to four and a half years. The Crown contends that the appellant cannot establish that the sentence imposed on him fell outside the range of the sentences which could reasonably be imposed in the exercise of the sentencing discretion. It argues that the ground of manifest excess cannot be made out in light of the following factors:

the pretext used by the appellant to enable the offending, which revealed a 'troubling side' to his character;
the particular vulnerability of the victim;
the fact that count 2 was a representative charge;
the fact that the appellant had had an opportunity to reflect on his abuse, and stop before committing further acts, but had continued to offend;
the impact of the offending upon the victim; and
the limited application of the Verdins principles.

38 It is trite law that the ground of manifest excess is difficult to make out. As Maxwell P said in R v Studdard:[29]

When the sentencing task has obviously been performed carefully and cogently by the sentencing judge, to whom our law confides that function, it will always be difficult, in my view, for a submission of manifest excess to succeed. The appellant must persuade the appeal court that, despite the sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong...that this Court should be satisfied that the discretion was not properly exercised at law, such that it would fall to this Court to exercise the discretion afresh.[30]

39 The statistics relied upon by the appellant for the offence of incest were for the period between 2004−05 to 2008−09, with the median length of imprisonment imposed for the principal offence of incest being four years. The most recent sentencing statistics for incest covering the five year period between 2006−07 to 2010−11, show that the median sentence for the principal offence of incest is four years and five months, meaning that half of the imprisonment terms imposed for that offence were shorter than four years and five months, and half were longer.[31] The length of total effective sentences imposed ranged from three months to 22 years and five months, with a median total effective sentence of seven years.[32] Here the individual sentences imposed were only slightly above the median sentence for each of the incest offences, and only twenty percent of the maximum penalty that parliament has fixed for this offence

40 Of course, the above statistics include both guilty and not guilty pleas and caution must be used in relying on them.[33] Equally, the use of percentages in assessing manifest excess must be approached with great care. But the yardstick the statistics provide does not support the claim that the individual sentences imposed were manifestly excessive.

41 The complaint that the cumulation was excessive cannot be supported. The offending was continued for a period of more than a month, and became more serious with time. The argument that this was in the lower range of offending of this nature is not supported by the evidence. I would agree with his Honour's characterisation of the offence contained within his sentencing remarks:

While your offending was more short lived than in other cases the courts have had to deal with, and it could not be said your behaviour was at the extreme or in the worst category, it still remains a serious example of these grave crimes.[34]

42 This ground appears to be a re-statement of the Verdins ground, and has effectively been dealt with in ground 1, which dealt with both moral culpability and deterrence. The judge did not refuse to have regard to all of the other relevant mitigating factors and discussed them in considerable detail. This ground fails.

[1] R v [DM] (Unreported, County Court of Victoria, Judge Mullaly, 11 June 2010) ('Reasons') [22]−[23].

[14] The appellant relied on the 30th to 37th minute of the plea, without reference to a particular paragraph. It would appear that the relevant comments appear on pages 14 to 17 of the plea transcript.

[26] Ibid [33] citing R v Walker [2011] VSCA 230, [10].

[27] Sentencing Advisory Council, Sentencing Snapshot: Sentencing trends in the high courts of Victoria 2004-05 to 2008-09 (June 2010) Figure 6.

[31] Sentencing Advisory Council, Sentencing trends in the higher courts of Victoria 200607 to 201011, Incest (August 2012) Figure 6.

[33] Hudson v The Queen, [2010] VSCA 32; (2010) 205 A Crim R 199, 207− 8, [32]−[33].

D M v The Queen [2012] VSCA 227

At a glance

Court

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Judgment (89 paragraphs)

D M v The Queen [2012] VSCA 227 (21 September 2012)

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Cases Cited (1)