D P v The Queen [2011] VSCA 1

1 The appellant, DP, pleaded guilty in the County Court at Ballarat to three counts of indecent act with a child under 16 (counts 1, 2 and 3) and seven counts of incest by a parent (counts 4 to 10). All counts, other than counts 1 and 5, were said to be 'representative' counts. He was sentenced on 5 June 2009 to a total effective term of imprisonment of 12 years with a non-parole period of ten years, the appellant being sentenced as a serious sexual offender on counts 3 to 10 inclusive. The sentencing judge declared that, but for the plea of guilty, the appellant would have been sentenced to a total effective term of 16 years with a non-parole period of 13 years.

2 By notice dated 15 June 2009, the appellant sought leave to appeal against sentence. On 9 July 2010, leave to appeal was granted.

3 The background facts need not be set out in any great detail. The appellant is the natural father of the victim in this matter whom we shall designate 'L'. She was born in March 1989. The appellant began sexually abusing her when she was aged only eight. The abuse started with him touching her vagina.

4 Subsequently, the appellant instructed L as to how she should masturbate him. The Crown alleged that this happened frequently. Within 12 months or so, this abuse had escalated to the point that the appellant was having L perform oral sex upon him.

5 After L had turned nine, the appellant began to have vaginal intercourse with his daughter. It was alleged that, while his wife was out, he would, on a regular basis, perform various indecent acts upon her. This abuse continued for many years. At one point, when L was aged 14, the appellant took her to Lake Wendouree near Ballarat and, at his suggestion, they exchanged 'marriage vows'. Thereafter, and until his arrest in December 2007, the appellant had sexual intercourse with his daughter on at least ten further occasions.

6 The offending to which the appellant pleaded guilty took place over a period of almost ten years, between 1 January 1998, and 28 November 2007. Counts 1, 2 and 3 each carried a maximum penalty of ten years' imprisonment. Counts 4 to 10 each carried a maximum penalty of 25 years' imprisonment.

7 The sentencing judge raised with counsel, on the plea, what precisely was meant by 'representative' in the context of each 'representative count'. He was told that, as far as count 2 was concerned, the offending conduct had occurred 'on two or three occasions'. As regards counts 3, 4, 7 and 8, the offending conduct had occurred 'more than once'. With regard to count 9, the offending conduct had occurred 'on two specific occasions'. As regards count 6, the offending conduct had occurred on 'at least five occasions'. Finally, in relation to count 10, the offending conduct had occurred 'on ten specific occasions'.

8 The sentencing judge had doubts as to whether a count could truly be described as 'representative' if all that could be said was that it had occurred on more than one occasion. In his Honour's words:

A single repetition on an unspecified date of an offence, rather than over an estimated period or an estimated number of incidents, only explains the circumstances or context of the offending to a very limited extent.

9 In dealing with the representative character of at least counts 6 and 10 (which the sentencing judge was prepared to treat as genuinely meeting that description), his Honour referred to DPP v EB,[1] where Nettle JA said of representative counts that their character made it

appropriate to impose a higher sentence in relation to those counts than would be the case in relation to an isolated count. Admittedly, that notion is not without its conceptual difficulties because of the principle that a prisoner is not to be punished for uncharged acts. But as Batt JA explained in R v SBL, the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context. Thus a

representative offence is likely to attract a greater sentence than an isolated offence.[2]

10 In his sentencing remarks, his Honour next referred to a report by Dr Dion Gee, a forensic psychologist with Forensicare. The appellant told Dr Gee that his wife had 'driven him' into his daughter's arms. He told Dr Gee that his daughter had enjoyed their sexual relationship, and that if she had not, she would have made her feelings clear. He said that he and his daughter had planned to live together.

11 Counsel for the appellant submitted that the appellant's remarks to Dr Gee should be viewed as related only to his conduct during the latter part of his offending, when his daughter was somewhat older. The sentencing judge accepted that submission (for what it was worth), but correctly observed that, nonetheless, those remarks showed a total disregard, on the part of the appellant, of the enormity of his offending.

12 His Honour added that, although the appellant would receive a reduced sentence as a result of his plea of guilty (which had spared L from having to give evidence) he saw no other indication of remorse or repentance for his wrongdoing.

13 The sentencing judge concluded that the gravity of these offences was such as to put the appellant's criminality 'within the highest level of offending' for crimes of this nature. The abuse had occurred over a long period of time, and it had severely damaged his daughter's life prospects.

14 The appellant was aged 48 at the time of his sentencing. He had no prior convictions. He readily admitted his offending to the police, though he attempted at various points to minimise the seriousness of his behaviour.

15 His Honour noted that the appellant had been in regular employment throughout his adult life. He had three other children apart from L, all of them boys. There had been a history of marital difficulties, the appellant having maintained that his wife had consistently abused medication, and that this had led him to drink heavily throughout the latter years of his marriage.

16 The sentencing judge noted that when the appellant was asked by Dr Gee whether he saw anything wrong with an adult having sexual contact with their child, he replied:

Yes, it's wrong because you are not supposed to have a relationship with your daughter, it is incest ... I knew at the time it was incest. The law is to protect kids from being sexually abused.

17 Despite that acknowledgment of wrongdoing, Dr Gee reported that the appellant went on to say:

I don't think I was sexually abusing her, I was in love with her. She was like an adult ... she was very smart ... I was in a catch 22.

18 The sentencing judge noted that when Dr Gee raised with the appellant the concept of consent, the appellant appeared to have only the most rudimentary notion of what that entailed. He maintained that his daughter had consented to all that he had done, but accepted that she probably regarded his actions as 'sexual abuse'.

19 Counsel for the appellant also tendered a report from Mr Bernard Healy, the well-known clinical psychologist. That report mirrored many of the conclusions reached by Dr Gee. Mr Healy described the appellant as having 'difficulties with intimacy', and 'lacking social skills'.

20 Mr Healy noted that the appellant had arranged for his children to be home schooled. The family had lived what was described as a 'socially restricted life'. The sentencing judge commented that, had the appellant's daughter attended school, his offending might have been detected at a much earlier stage.

21 Counsel for the appellant provided the sentencing judge with a Sentencing Snapshot of trends in sentencing for incest. The Snapshot suggested that, in the period 2005 to 2007, the average total effective sentence for incest was seven years and seven months' imprisonment, while the average non-parole period was four years and nine months. In the entire period between 2002 and 2007, only three sentences exceeded ten years. The median sentence imposed throughout that period was in the five to eight year range.

22 As his Honour noted, the difficulty in applying these statistics was that there was no indication whether the sentences in question followed pleas of guilty or contested hearings. Nor was there any indication as to the number of offences dealt with on average.

23 The Crown submitted, on the plea, that a total effective sentence of between 13 and 16 years was warranted. It further submitted that a non-parole period of between 11 and 13 years was appropriate. The sentencing judge indicated that he would have been receptive to that submission but for the difficulties associated with characterising a number of the counts as being 'representative'.

24 The individual sentences imposed were as follows:

25 As we have previously noted, the sentencing judge stated that, following the appellant's sentencing on the third count, he was to be sentenced as a serious sexual offender, with the usual consequences. His Honour added that pursuant to s 6D of the Sentencing Act 1991, a sentence designed to protect the community from further offending could have been imposed. However, in light of the substantial effective sentence of 12 years, and the non-parole period of ten years, his Honour considered it unnecessary to invoke that provision.

26 The appellant relies upon the following grounds in support of his appeal against sentence:

1. The learned sentencing judge erred in finding there to be no or effectively no evidence of the appellant's remorse.

2. The learned sentencing judge erred by imposing a non-parole period, it being such a high proportion of the head sentence in the absence of compelling reasons for doing so.

3. The sentences imposed are manifestly excessive.

27 There is nothing that can be said in support of ground 1. The sentencing judge remarked that the appellant showed 'a total disregard for the enormity of [his] offending'. That finding was properly open on the evidence.

28 It was submitted on behalf of the appellant that his Honour's conclusion that, apart from the plea of guilty, there was no indication of remorse or repentance was unwarranted. The appellant had cooperated with the police investigation and freely admitted the general scope of his offending. The plea had been entered at an early stage, and had thereby spared both the appellant's daughter and his wife from the ordeal of having to give evidence. There were also indications in both Dr Gee's report and that of Mr Healy that the appellant recognized that what he had done was wrong. When combined with this were the appellant's limited social skills and below average intellectual capacity, the finding of lack of remorse was said to be unjustified.

29 In our opinion, the appellant showed remarkably little insight into the gravity of his offending. There was little, if any, indication of genuine remorse. The sentencing judge was entitled to arrive at the conclusion that he did.

30 Grounds 3 and 4 cannot be sustained. Undoubtedly, both the total effective sentence of 12 years' imprisonment and the non-parole period of ten years amounted to severe punishment. However, as the sentencing judge correctly observed, if ever there was a case warranting such punishment, this was it. The appellant's sexual abuse of his daughter was protracted and of the most heinous nature. It began when she was aged only eight. Sexual intercourse followed when she was aged only nine. It is difficult to imagine a significantly worse case of repeated incest. Nothing less than a lengthy term of imprisonment would have sufficed to reflect the community's abhorrence of what took place. Any sentence imposed had to meet the object of complete denunciation of such behaviour.

31 Ground 2 appears at first sight to have greater force. The ratio between the total effective sentence of 12 years, and the non-parole period of ten years was, as the Crown conceded, unusual. That being so, one would normally have expected the sentencing judge to have provided reasons for fixing such a comparatively long non-parole period.

32 In R v VZ,[3] the appellant was convicted on two counts of incest. The offences had been committed some 18 and 19 years earlier. The complainant had become pregnant as a consequence of each of them. The appellant received a total effective sentence of eight years' imprisonment with a non-parole period of six years and six months. The sentencing judge gave no reason for fixing such a high non-parole period.

33 Callaway JA referred to the decision of the Full Court in R v Krasnov and Shlakht,[4] where a sentence of 16 years' imprisonment with a non-parole period of 14 years was reduced to one of 16 years' imprisonment with a non-parole period of 11 years because the sentencing judge had given no specific reason for fixing such a comparatively long non-parole period. Importantly, however, in Krasnov the Full Court had added that for their part, they were 'unable to discern in the circumstances of [the] case any good reason for doing so'.

34 Applying Krasnov[5], Callaway JA said that a failure to give reasons invites scrutiny if the non-parole period is unusual either by comparison with other cases or having regard to the facts of the instant case or the course of the plea. The sentencing judge's conclusion that the appellant in VZ was unlikely to offend again, and that his prospects of rehabilitation were good, coupled with evidence as to his deteriorating medical condition, justified a reduction in the non-parole period from six and a half to five and a half years.

35 It is true that the sentencing judge in the present case gave no specific reason for fixing a non-parole period slightly more than 80% of the head sentence. In accordance with VZ[6], that invites careful scrutiny.[7] After giving this matter anxious consideration, we are satisfied that the reasons for such a high non-parole period can be discerned from the unusual facts of this case. The appellant's lack of remorse, and his rationalisation of his behaviour demonstrate an absence of insight and suggest a continuing risk of abhorrent sexual behaviour. These facts alone justify the unusually high non-parole period fixed in this case.

36 That is not to say that the sentencing judge acted correctly in failing to spell out precisely why he considered a non-parole period of this order to be appropriate. However, to reduce the non-parole period from ten years to, say, nine years, in order to bring it into line with what might be regarded as a more usual ratio, would, in this case, amount to 'tinkering' and impose an unreasonable constraint upon a sentencing judge's discretion.

37 Accordingly, for the reasons set out above, we would dismiss this appeal.

[1] [2008] VSCA 127; (2008) 186 A Crim R 314.

[2] Ibid 318 (citations omitted). Cited with approval by Warren CJ in R v CJK [2009] VSCA 58; (2009) 22 VR 104, 111-112.

[3] [1998] VSCA 32; (1998) 7 VR 693.

[4] (1995) 82 A Crim R 92.

[6] R v VZ [1998] VSCA 32; (1998) 7 VR 693

[7] Cf however, the recent decision of the High Court in Hili v The Queen [2010] HCA 45 which perhaps casts doubt upon the notion that there is a 'norm', so far as the ratio between a head sentence and a non-parole period is concerned, in relation to sentences for State offences.