Director of Public Prosecutions v DJK [2003] VSCA 109

2. In my opinion, for the reasons given by Vincent, J.A., which I have had the benefit of reading, this appeal should be allowed and the order proposed by his Honour made. The offences the subject of counts 4 and 5, and particularly the former, are regarded by Parliament and the courts as serious indeed. They involved penetration. The victim was young, especially in the period covered by count 4 (being between six and almost 10 years of age), whilst the respondent was an adult or close to it (being between 17 and 21 years of age in the case of count 4 and between 21 and 24 years in the case of count 5). Further, the two counts were representative counts. Those counts required, in my opinion, the imposition of a custodial sentence. Whether that could have been wholly suspended need not be determined, for that can properly be done on this appeal, particularly having regard to the attitude of the Director announced at the commencement of the hearing, to the fact that the respondent has attended upon Mr. Cummins since being sentenced, and to the fact that he has been at large since being sentenced, not to mention the usual constraints operating from this Court in Directors' appeals. The sentencing process in this case was very largely offender-orientated. This meant that it did not have regard to the whole picture revealed by the material or indeed the main part of it, namely, the objective seriousness of the offences and their effect upon the victim. Those considerations made just punishment and general deterrence the main sentencing purposes. As regards the position of victims, I agree too with the reasons of Eames, J.A., noting his reference to s.5 of the Sentencing Act 1991.

5. The sentencing remarks and the records of the County Court, including the community-based order signed by the judge[1], regrettably leave the terms and meaning of the community-based order in fact imposed somewhat doubtful. Although in the circumstances it is not necessary to express a concluded view on the matter, it seems to me - and here I differ respectfully from Vincent, J.A. - that, having regard to the endorsement on the presentment and the entry in the return of

prisoners signed by the judge, which use the word "requirement", it was a condition of the community-based order that the respondent participate in a sexual offenders' program, but that the judge made the order invalidly because he did not obtain an appropriate pre-sentence report. (If participation in the course was not a condition, but a mere recommendation, then there was no invalidity: Sentencing Act 1991, s.39(7).) A pre-sentence report would no doubt have shown that, as proved to be the case, it was not possible to accommodate the respondent in such a program.

10. On 15 October 2002, the respondent pleaded guilty before the County Court sitting at Geelong to a presentment containing three counts of indecent assault contrary to s.44(1) of the Crimes Act 1958 (counts 1, 2 and 3), one count of taking part in an act of sexual penetration with a child under 10 years of age contrary to s.47(1) of the Crimes Act (count 4), and one count of taking part in an act of sexual penetration with a child under the age of 16 years contrary to s.45 of the Crimes Act (count 5). No previous criminal history was alleged against the respondent.

13. The applicable maximum penalties for these offences were as follows:

Counts 1, 2 and 3 - five years' imprisonment Count 4 - 20 years' imprisonment Count 5 - 10 years' imprisonment

17. After hearing a plea in mitigation of penalty, which included the obtaining of a psychological assessment of the respondent and an adjournment of the proceeding to enable an assessment of the respondent's suitability for participation in a sex offenders' programme to be obtained,[2] on 18 December 2002 the sentencing judge convicted the respondent on all counts and ordered in respect of all that he be

released on a community based order for a period of 12 months with the requirement that he perform 200 hours of unpaid community work over that period. The order in Form 5 also included a "programme condition" expressed as follows, "Recommend participation in sexual offenders' programme."

21. Pursuant to a power conferred by s.567A of the Crimes Act 1958, the Director of Public Prosecutions has appealed against that sentence on the following grounds:

"1. The sentences imposed in respect of each of counts 4 and 5 are manifestly inadequate.

PARTICULARS

In sentencing the respondent to undergo a Community Based Order for a period of 12 months and ordering that the respondent perform 200 hours of unpaid community work over a 12 month period in respect of counts 4 and 5 the learned sentencing judge - (a) failed, despite his findings that the offending was 'quite serious' particularly in relation to the age differences involved in the offending which constituted counts 4 and 5, to adequately reflect the seriousness of the offending generally and in this case in particular; (b) failed to adequately reflect the gravity of the offences generally and in this case in particular; (c) failed to take into account or sufficiently to take into account the aspect of general deterrence; (d) failed to take into account or sufficiently take into account the breach of trust involved in the offences; (e) failed to take into account or sufficiently take into account the length of time over which the offences were committed, and the representative nature of each of counts 4 and 5; (f) gave too much weight to factors going to mitigation; (g) failed to impose a term of imprisonment in respect of each of counts 4 and 5. 2. That the learned sentencing judge erred in failing to have the respondent assessed for a pre-sentence report pursuant to section 36(1)(b) of the Sentencing Act 1991 prior to imposing the Community Based Order, when he clearly intended that the respondent take part in a course of counselling offered by the C.O.R.E. Sex Offenders Group as a condition of the Community Based Order. 3. That the imposition of a Community Based Order without a formal condition that the respondent undergo a course of counselling offered by the C.O.R.E. Sex Offenders Group rendered the sentence manifestly inadequate."

26. The respondent was born on 16 December 1970. The charges involved offences committed against his three stepbrothers: L, born on 3 July 1975, M, born on 19 June 1977, and N, born on 20 June 1982. The respondent's father and the mother of the three complainants had married in 1984. Thereafter the complainants L and M resided with their mother at the home of the respondent and his father. The youngest complainant, N, resided with his natural father, but resided with his brothers and the respondent on every second weekend and on school holidays. The offences were committed on different dates between the years 1984/1985 and 1995. The respondent was accordingly around 14 years of age at the time of the commission of the first offence and about 24 or 25 years at the time of the commission of the last.

30. Count 1 related to an offence committed between 8 December 1984 and 2 July 1986, when the complainant L was aged about nine or ten years and the respondent was aged about 14 to 15 years. L was present in his bedroom in the family home in Altona when the respondent produced his penis and had the young boy lick it. The respondent then ejaculated.

33. Count 2 related to an incident which took place between 19 June 1985 and 18 June 1987 when M was aged eight or nine years and the respondent was aged 14 to 16 years. Whilst playing with toy cars on a mat on the floor of the respondent's bedroom, the respondent put his hand down the pants of M and fondled his penis for a period estimated by the victim as approximately ten minutes.

36. Count 3 was representative of a number of offences of similar character committed in the period between 1 August 1987 and 31 July 1988 when the complainant L was about 12 years of age and the respondent was about 16. At that stage, L and the respondent occupied two bedrooms in a bungalow at the rear of the family property. The respondent would on such occasions place his penis around the top of the anus of L without effecting penetration.

39. Count 4 - this offending occurred between 20 June 1988 and 19 June 1992 when N was between six and ten years of age and the respondent was 17 to 21 years. The count was representative of a number of episodes in which the respondent induced the young child to put the respondent's penis in his mouth.

42. Count 5, also a representative count, related to conduct engaged in between 20 June 1992 and 20 June 1995 when N was between 10 and 13 years of age and the respondent was between 21 and 24 years of age. The young boy was pushed to the ground and his pants were pulled down. He was then smacked on the buttocks after which the respondent inserted his fingers into the child's anus.

46. The complainants eventually made statements to the police about this behaviour during the last week of August 2001. When initially interviewed on 31 August, the respondent denied any wrongdoing, referring to his relationship with them as "pretty much standard". However, a week later, he returned voluntarily to the police station for a second interview. He said that he recalled incidents involving L and N. On one occasion, he stated, his penis touched the anus of L without penetration. This was consensual and reciprocated, he asserted. He explained this conduct as "experimentation". He recalled one or possibly two further occasions on which N, who was aged about 5 or 6, was requested to suck his penis. The child complied. The respondent explained this also as "one of those experimental things". He claimed that he could not recall all of the incidents described by the complainants, but conceded that they could have been telling the truth about them.

50. The principles upon which the Court operates in the consideration of appeals by the Director of Public Prosecutions have been the subject of attention in a number of authorities. They are, by now, to be regarded as well-recognized and clear. As Winneke, P. stated in DPP v. Whiteside and Dieber[3]:

"They are collected in such authorities as Griffiths v R; Malvaso v R; Everett v R; and R v Clarke. Those authorities make it clear that the court's jurisdiction under s 567A of the Crimes Act to interfere, at the instance of the Director of Public Prosecutions, with a sentencing discretion already exercised against a respondent, should only be used in those rare cases where, inter alia, it is necessary to maintain proper sentencing standards and principles. The court does not interfere with a sentence merely because it thinks that it is less than it would itself have imposed; rather it only intervenes when material error in reasoning is discerned, or such inadequacy as is indicative of error or departure from principle: R v Dodd." (Footnotes omitted.)

In the application of those principles, it is important to bear in mind that the sentencing discretion is reposed in the judge at first instance and an appellate court is only entitled to intervene in order to address error, either specifically identifiable or manifested by the sentence itself. It does not necessarily follow, even where specific error is discernible, that the Court will intervene, as the sentence must also be manifestly inadequate in all the circumstances and there are discretionary considerations which need to be taken into account, including, for example, the exposure of the individual to the double jeopardy inherent in a re-sentencing process. In Dinsdale v. The Queen[4], Kirby, J. stated:

"Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.... As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.

...

As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly.... In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried...." (Footnotes omitted.)

56. Such appeals, as in all cases resting upon an assertion that error can be inferred from the disposition or decision itself, must be approached with considerable care. In particular, it must be borne in mind that the distinction between a determination that a sentence is less than that which the judges sitting on an appeal court consider to be appropriate but is nevertheless within the range available to the sentencing judge and one which is perceived as so inadequate as to demonstrate error, is far more easily expressed than applied.

59. In support of his contention that the sentences imposed in the present case, in respect of each of counts 4 and 5, must be regarded as manifestly inadequate to such a degree that the intervention of this Court was required in accordance with the principles relating to such appeals, the Director placed emphasis on a number of features. Among them were the facts that the offences against N were committed against a background of offences against two other young children committed over a lengthy period and that the offending against this particular victim, which commenced when the child was only five or six years of age, represented repeated abuse of a particularly serious character extending over approximately seven years.

62. In this context, it was pointed out that each of the victims, including N, asserted in their victim impact statements that the effect of the offending upon him was to "profoundly and permanently psychologically [scar] him and in a tangible way, has affected many aspects of [his] behaviour". With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.

65. This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation. As the sentencing judge in the present case has pointed out, the damage has been profound. That, in the experience of this Court, is by no means surprising. The possibility that very substantial harm can be sustained by child victims of sexual abuse underlies, in part, the legislative enactment of substantial maximum penalties for the commission of the offences encompassed by counts 4 and 5.

68. The respondent was aged about 17 years when he commenced to offend against N. His victim was only six and he continued to abuse the child until he was well into his 20s. The substantial age difference between the perpetrator and his victim was relevant in more than one respect as the Director contended. N was very young and vulnerable throughout the period of abuse, and it would seem to be apparent that the respondent, if not in some position of trust with respect to him, clearly possessed a significant degree of control and influence over him.[5] It is noteworthy, the Director submitted, that no mention of this circumstance of aggravation was made in his Honour's sentencing remarks.

71. Although in his sentencing remarks his Honour described the offending as "quite serious"[6] and he adverted to the significance of general deterrence as a sentencing consideration in cases of this kind, there was, Mr Coghlan submitted, in his approach to this matter, a significant underestimation of the seriousness of the offending encompassed by counts 4 and 5.

74. Accordingly, attributing full weight to all of the mitigatory features advanced on behalf of the respondent, he argued that the sentence imposed for these offences was so clearly inappropriate that error could be inferred and the intervention of this Court was required.

77. In response, counsel for the respondent emphasized the obligation of a sentencing judge to weigh and balance a number of competing considerations in the determination of an appropriate sentence. Obviously, the matters upon which the Director relied, had to be, and were indeed, taken into account by his Honour, he submitted. However, attention had to be directed by the judge to a number of other considerations. They included:

"(a) the age of a number of the offences specified on the presentment;"[7]

[I observe, however, that the most serious of the offences committed by the respondent were those encompassed by counts 4 and 5 and these were committed between 20 June 1988 and 20 June 1995. Not only were they more serious in character than the earlier offending involved in the other counts but had the respondent been charged at the time of commission of the offences in counts 1, 2 and 3, the respondent would have been dealt with in the Children's Court for those matters.]

"(b) the respondent's pleas of guilty;[8] (c) the consequences of the respondent's pleas of guilty;[9]

[I note that His Honour made specific and appropriate references in his sentencing remarks to (b) and (c). He adverted to:

"... your pleas of guilty which have saved the victims the unpleasantness of trial, also correctly submitted that the community has been spared the expense of a lengthy trial",[10]

"... you are entitled to a sentencing discount for this response to the charges."[11]

His Honour also took into account the fact that, due to adverse press coverage, the respondent had been retrenched from his employment and had been required to obtain work elsewhere.]

"(d) the respondent's genuine remorse and shame for his offending and its consequences (including the suffering of the complainants);[12] (e) the respondent's strong, supportive and loving relationship with both his wife (and child) and his father;"[13]

[These relationships were properly regarded by the sentencing judge as relevant to the respondent's prospects for continuing rehabilitation and as bearing upon the relative unlikelihood of further offending.]

"(f) the substantial change in the personal circumstances of the respondent from those circumstances in existence at the time of his offending;[14] (g) the emotional and psychological immaturity of the respondent at the time of his offending;[15] (h) the respondent's otherwise good character;[16] and (i) the respondent's good employment record and present stable employment.[17]"

[Without setting out specific passages, it is apparent from his Honour's sentencing remarks that he had regard to each of the matters covered by (f), (g), (h) and (i).]

92. Counsel pointed out that the sentencing judge had before him reports prepared by an experienced forensic psychologist (Mr Jeffrey Cummins) and two psychiatrists (Dr Nicholas Owens and Dr Andrew Carroll). The evidence indicated that the respondent was a deeply religious man who regularly attended church and who had strong continuing family relationships. His Honour accepted that he was genuinely remorseful and had demonstrated his motivation to take whatever steps were required to minimize the possibility of re-offending. His Honour formed the view that the respondent was unlikely to commit any further offences of that kind and that any continuing psychosexual problems which may exist could be appropriately addressed through a community based sex offenders' programme. Whilst, as it transpired, no such programme was ever provided to him through no fault or reluctance to participate on the part of the respondent, he had been attending Mr Cummins to the same end. The sentencing judge was in the particular circumstances of the matter entitled to give reduced weight to the objective of general deterrence as a sentencing consideration, counsel submitted in conclusion.

95. Notwithstanding the relevance and force of all of the matters taken into account by the sentencing judge in mitigation of penalty, it is nevertheless apparent, in my view, that the sentence imposed in respect of counts 4 and 5 not only failed to reflect the very serious character of the conduct in which the respondent engaged, but was almost derisory in the circumstances.

98. There was, in the imposition of a 12 month community based order for all of the offences in counts 1 to 5, no distinction drawn between the age of the respective victims and the seriousness of the particular forms of conduct engaged in by the respondent, the respective ages and levels of maturity of the respondent at the time of the commission of the various offences, the representative character of counts 4 and 5 and the non-representative character of the others, and no attention appears to have been paid to the fact that there were three separate victims. Nor does the sentence imposed on the respondent give proper recognition to the importance of general deterrence as a sentencing consideration in such cases.

101. In consequence of an increasing awareness in our society of the incidence of the sexual abuse of children and much greater understanding of the potential destructive impact that it has had and is continuing to have on the lives of so many people in our community, this Court has, on a large number of occasions, emphasized two fundamentally important considerations. First, in the assessment of the appropriate level of just punishment, conduct of the kind encompassed by counts 4 and 5 will be viewed as gravely serious. Sentences must involve recognition of the kind of personal damage that is occasioned by such behaviour and of the reality the rehabilitation of the victim may be far more difficult to accomplish than that of the perpetrator. This leads to the second consideration. Through the sentences that they impose, the courts must, in order to protect future possible victims against such damage, endeavour to deter those who may be so inclined from engaging in such activities.

104. In consequence, I do not need to address grounds 2 and 3 of the appeal. However, for completeness, I should point out that the sentencing judge's intention that the respondent would participate in a C.O.R.E. sex offenders' programme was never properly incorporated into his orders, or likely to be implemented if it had been. This would have become clear had the initially contemplated assessment been obtained before sentence was imposed. Nevertheless, in the event the respondent has undertaken an essentially similar programme with Mr Cummins and his Honour's objective has been accomplished.

107. In my view, it is evident that sentences of actual imprisonment were called for in this case. Making allowance for the principle of double jeopardy, and the fact that the respondent, who has been permitted by the sentencing judge to remain at liberty, has not only satisfied his obligations under the sentence imposed upon him but also

made significant personal endeavours towards his own rehabilitation, I would nevertheless allow this appeal. I would set aside the sentence imposed in the Court below in so far as it related to counts 4 and 5 and, in respect of count 4, substitute a sentence of one year and six months' imprisonment. On count 5, I would substitute a sentence of 12 months' imprisonment. I would direct that six months of the sentence on count 5 be served cumulatively upon the sentence imposed on count 4. This would create an effective term of imprisonment of two years the service of which in the particular circumstances I would suspend for two years from this date.

112. Having had the advantage of reading the judgement of Vincent, J.A. in draft, I agree that the appeal should be allowed and that sentences proposed by Vincent, J.A for counts 4 and 5 should be substituted for those imposed below. I agree with his Honour's reasons for that conclusion and wish to add only one observation.

115. I agree with Vincent, J.A. that the availability of victim impact statements has greatly facilitated the task of judges in imposing just and appropriate sentences. The victim impact statements in this case demonstrate the assistance they provide to the court in understanding the long term consequences that can result for victims of criminal conduct. The purposes for which sentences may be imposed and the considerations which the court may and may not take into account when determining an appropriate sentence are expressly stated in s.5 of the Sentencing Act 1991. The interests of the victims and the consequences to them of the criminal conduct are matters of particular importance.

118. The notion of social rehabilitation which Vincent, J.A. discusses in his judgment is consistent with the principles set out in the Act, and is an important consideration. That consideration not only applies to the victims of the particular crimes with which the court is concerned in any instance but also has relevance for the broader community. It is, however, important to recognise that the Sentencing Act obliges the sentencing judge to also have regard to both the previous character

and the rehabilitation of the offender, among many other factors which might bear upon the mitigation of penalty. The task of the sentencing judge therefore requires that, on the one hand, he or she have a full appreciation of the impact of the crime on the victims and the need for both denunciation of the conduct and deterrence of the offender and others, and that, on the other hand, he or she must identify and address those factors which merit some mitigation of penalty. In having regard to the position of the offenders in that way, the courts are not disregarding the victims or diminishing their suffering but are addressing broader considerations related to the well-being of the community. The eventual rehabilitation and re-integration into the community of the offenders are matters which sentencing judges are obliged to consider in that regard.

[1] Despite its being incomplete as to the offences and as to the supervising court.

[2] T67. No such assessment was, in fact, made or provided to the Court prior to sentencing. See Grounds 2 and 3 of the Appeal. His Honour's intentions with regard to the type of report being sought are unclear. At T68 he referred to a Psychiatric Assessment. However, as indicated, he had earlier referred to a pre-sentencing report specifying an assessment of the applicant's suitability for a sex offenders' programme.

[3] [2000] VSCA 142; (2000) 1 V.R. 331 at 335-336.

[4] [2000] HCA 54; (2000) 202 C.L.R. 321 at 339-340.

[5] Particular (d) of ground 1 refers to "breach of trust". As I understand his contentions on this aspect, the Director argued that the situation was more appropriately viewed as one in which there was, by reason of his position as an older stepbrother and the substantial age differences between them, a clear imbalance in the respective situations of the respondent and his victims which was grossly exploited.