1 The applicant seeks leave to appeal against a sentence of two years' imprisonment, 14 months of which was suspended for 18 months, imposed on him following a County Court jury verdict that he was guilty of the offence of committing an indecent act against a child under 16 (charge 1). The victim was his daughter, who was aged between 14 and 15 years. The jury acquitted the applicant of a second charge alleging that, on a different occasion, he had placed his daughter's hand on his penis.

2 The offence occurred between 1 January 2009 and 30 April 2010 at the family home. The applicant woke his daughter up and took her into the kitchen, telling her that he wanted to sit with her while listening to music on the family computer. After the victim complied with a request that she sit on his lap, the applicant put his hand under her top and touched her breasts.

3 The victim's evidence at the trial was that the applicant repeated this 'nearly every night for, like ages' until the behaviour eventually stopped. She said that the applicant was always drunk when he touched her in this way.

4 The applicant pleaded not guilty to the charges against him, although he admitted to police in a record of interview that on the occasion covered by charge 1, he had tickled his daughter 'a bit too high' and 'touched something [he] shouldn't have'.

5 Her Honour noted that at the time of sentence, the applicant was aged 44,[1] had been married for 22 years[2] and had been in steady employment until he stopped working to care for his wife, who has significant health problems.[3] He and his wife had five children. The applicant turned to alcohol to relieve him from stress caused by family difficulties and he began drinking more heavily after his son committed suicide at the age of 17.[4] The offence occurred before his son's death, but at a time when his son's mental state was 'clearly deteriorating and [the applicant] felt powerless to prevent it'.[5]

6 The judge said that the applicant's daughter had 'suffered greatly' from his offending.[6] She had been 'shunned and abused' by her family for laying charges against her father,[7] and as a consequence, had to move out of home and support herself.[8] She suffered from depression, insomnia, anxiety and at times, felt suicidal.[9] Her Honour also referred to the victim's statement in her VARE evidence that after she made the allegations against him, the applicant had told her that he would not have offended against her because 'you're so fat and ugly'. This evidence had not been challenged.[10] The judge said that 'in the midst of [the applicant's] own woes, [he had] completely forgotten the needs of [his] young daughter and [his] duties as a father towards her'.[11]

7 Her Honour referred to the report of forensic psychologist, Dr Aaron Cunningham, who assessed the applicant as a 'moderate risk of future sexual offending'. Her Honour said that:

It became apparent on the plea that you still resist the notion that you have offended in this way and it appears that these factors may have had a particular influence on the assessment of your future offending prospects.[12]

8 As mitigating factors, the learned sentencing judge took account of the stress which the applicant was under at the time of offending. She had regard to the fact that the applicant had had a very 'difficult childhood'[13] because his father was 'a violent man who engaged in excessive corporate punishment'[14] of the applicant, and physically abused the applicant's mother. After his mother ultimately left her husband, there was a further rift in the family because the applicant's sisters blamed their mother for ending the marriage.[15] His father committed suicide after the mother had left him, when the applicant was 19 years old.[16]

9 The judge said that the prosecution had correctly submitted that the aggravating features of the offence included the applicant's lack of remorse, and breach of duty towards his natural daughter, who was entitled to his care and protection.[17] Her Honour concluded that 'for reasons of punishment, condemnation of your actions and issues of general deterrence', it was necessary to sentence the applicant to an immediate term of imprisonment.[18]

10 The applicant seeks leave to appeal against his sentence on three grounds.

Ground 1: The learned sentencing judge erred in directing herself not to make a finding that the uncharged acts were proven.

Ground 2: The learned sentencing judge erred in using uncharged acts as an additional basis for punishment.

12 During the plea hearing, the applicant's counsel appears to have anticipated that the Crown would make some reference to the victim's evidence of uncharged acts. He said that 'Your Honour will need to make some finding in regards to that'. In response, her Honour said that:

The jury in my view has clearly found [the applicant] guilty of the uncharged acts as well. It's not for me to make that finding. [The victim's] evidence was that this particular incident was repeated.

13 Her Honour later observed that 'we are dealing with a 40 year old man who has been convicted, as I have said, a number of times of sexually assaulting his daughter'. Counsel for the Crown submitted that the victim had said that the particular style of offending at the computer 'happened a lot', so that it was not an isolated offence and her Honour agreed with that submission.

14 Her Honour referred to the allegation that the applicant had touched his daughter more than once at several points in her sentencing reasons. Initially, she said that:

In her statement to police, [the victim] said that you did this every night 'for ages' and then eventually it just stopped. The prosecution case was therefore one which included an allegation of uncharged acts in addition to the charge for which you were ultimately found guilty.

[The victim] said that on each occasion you touched her in this way you were intoxicated. In a record of interview with police you denied the allegation, pleaded not guilty at trial and were acquitted on one charge of indecent act involving an allegation that on another occasion you placed [the victim's] hand on your penis as well as being found guilty of the charge, now the subject of this sentence.[19]

15 Later in her reasons, her Honour observed that '[t]he assaults' occurred before the suicide of the applicant's son,[20] that the psychologist had assessed the applicant based on 'the sexual offences',[21] and that the applicant had committed 'these offences' at a difficult time in his life.[22]

16 In support of ground 1, counsel for the applicant contends that her Honour incorrectly took the view that the jury verdict on charge 1 necessarily involved a finding that the applicant was guilty of the uncharged acts. Because the applicant was not charged on the basis that charge 1 was a representative charge, the judge could not sentence the applicant on this basis without making a finding as to whether the uncharged acts were proven.

17 In support of ground 2, the applicant relies on the references to the applicant's commission of 'offences' and 'assaults' (plural) in her Honour's reasons which are set out above. The applicant argues that these references indicate that her Honour incorrectly sentenced the applicant on the basis that charge 1 was a representative charge, although he had not been charged on that basis.

18 The written submissions made by the Crown argued that her Honour had not sentenced the applicant on the basis that charge 1 was a representative charge. This submission was, in effect, abandoned at the oral hearing, though counsel for the Crown argued that not all of the references in her Honour's reasons clearly indicated that she had sentenced the applicant on the basis that charge 1 was an isolated act. Nevertheless, counsel submitted that even if leave to appeal was granted, the appeal should not be allowed. No different sentence should be imposed even if the applicant fell to be sentenced on the basis that he had not committed the uncharged acts against the victim.

19 Her Honour's reference to the victim's evidence that the offending occurred every night 'for ages', or to the comments made by Dr Cunningham, do not necessarily indicate that the applicant was sentenced on charge 1 on the incorrect basis that this was not an isolated offence. However, in my opinion, when the judge's remarks at the plea hearing are read in combination with her references to 'offences' and 'assaults' in her reasons for sentence, it is apparent that her Honour treated the jury verdict on charge 1 as amounting to a finding that the applicant committed the uncharged acts.

20 Since charge 1 was not a representative charge, this was a sentencing error. The jury could have convicted the applicant of charge 1, whilst rejecting the victim's evidence that he had touched her breasts on other occasions. In order to sentence the applicant on the basis that charge 1 was not an isolated act, her Honour had to be satisfied beyond reasonable doubt that the uncharged acts had occurred. Unfortunately, the judge did not direct her mind to this question. For these reasons, the alleged errors in grounds 1 and 2 are made out.

21 I also note in passing that her Honour said that the prosecution had correctly submitted that the applicant's lack of remorse was 'an aggravating feature' of the offending, whereas remorse is simply a matter that can be relied upon in mitigation. Counsel for the applicant did not rely on this as a sentencing error, although it may well have been one. It is possible that her Honour spoke loosely in describing lack of remorse as an aggravating factor and instead had in mind Dr Cunningham's report that the applicant's denial of the offence placed him at moderate risk of re-offending.

22 In order to allow the appeal against sentence, the Court must be satisfied that a different sentence should be imposed. There are difficulties in considering current sentencing practices relating to this offence, because it is comparatively rare for a parent or close relative to be sentenced on a single, non-representative charge of an indecent act against a child under 16 years.[23] In addition, an offender sentenced for this offence is often sentenced at the same time for other serious sexual offences. In such cases, the judge may moderate the sentence imposed for individual offences, or make appropriate orders for cumulation, in order to avoid the imposition of a manifestly excessive total effective sentence.[24]

23 The Sentencing Advisory Council Sentencing Snapshot shows that between 2005 - 2006 and 2008 - 2009, 54% of those sentenced for the principal offence of an indecent act against a child received a term of imprisonment, 18% received a wholly suspended sentence and 10% received a partially suspended sentence.[25] For those sentenced to a term of imprisonment (including a totally or partially suspended sentence), the median sentence was two years.[26]

24 Sentencing statistics can only ever provide limited guidance in an individual case, because they do not disclose the circumstances of the offender or the offence, and include both offenders who pleaded guilty and those who went to trial. In addition, the sentencing statistics for this offence include both offenders who are family members and those who are not.

25 I would accept the Crown submission that this was serious offending. The offence occurred at a time when the family was experiencing difficulties because of the mother's illness and the older son's psychological distress. At such a time, a father would normally be expected to take particular care of his daughter. Instead, the applicant woke the victim from sleep and sexually abused her in order to relieve his own stress. The fact that the offence was committed when he was disinhibited by alcohol does not, in my opinion, significantly reduce his moral culpability.

26 The applicant cannot rely on the utilitarian effects of a guilty plea and is not remorseful. His inability to acknowledge his wrongdoing increases the risk that he may re-offend and the weight to be placed on specific deterrence. The victim is estranged from her family because of her complaint about the offence and is now isolated and depressed. The applicant's cruel remarks to his daughter are likely to have increased her pain and sense of rejection.

27 On the other hand, the sentence imposed on the applicant must take account of the applicant's tragic family history (including a history of inter-generational

suicide), the fact that he suffers from a major depressive disorder which the judge found would make imprisonment more burdensome for him than for a person not suffering from such a mental condition, and the other matters to which her Honour referred. I am also influenced by the fact that the sentence imposed by her Honour presumably reflected the weight which she gave to the fact that the offence was not an isolated one.

28 In the circumstances, I consider that a different sentence should be passed. I would therefore grant the application for leave to against sentence on grounds 1 and 2, allow the appeal and re-sentence the applicant to a term of 18 months' imprisonment. I would suspend 10 months of that sentence for a period of two years. The result is that the applicant will be required to spend eight months in custody.

29 The conclusion that I have reached makes it unnecessary to consider proposed ground 3, which alleges that the sentence imposed was manifestly excessive, but I merely indicate that I would not have granted leave to appeal on that ground alone.

[1] DPP v [DRS] (Unreported, County Court of Victoria, Judge Gaynor, 14 June 2012) ('Reasons') [5].

[23] See, however, Clarkson v R; EJA v R [2011] VSCA 157; (2011) 212 A Crim R 72 where the second appellant, EJA, pleaded guilty to one count of committing an indecent act in the presence of a child under 16 years. The child was the applicant's stepdaughter and the applicant had previously been sentenced without conviction for two sexual offences against his nephews. The appellant had had a difficult childhood and had symptoms of depression, which would have impaired his judgment. A sentence of two years and six months' imprisonment with a non-parole period of 18 months was held not to be manifestly excessive.

[24] DPP v Grabovac [1998] 1 VR 664; see also R v Izzard [2003] VSCA 152; (2003) 7 VR 480.

[25] Sentencing Advisory Council, Sentencing trends in the higher courts of Victoria 2005-06 to 200910 (June 2011), Figure 1.