DPP v Amaral [2020] VSCA 290

CRIMINAL LAW - Appeal - Sentence - Crown appeal - Sexual penetration of child under 16 (3 charges) - Serious offending against niece - Victim aged between 12 and 15 - Offending resulted in pregnancy and birth of child - Total effective sentence 8 years and 10 months' imprisonment, non-parole period 5 years 8 months - Whether manifestly inadequate - Pregnancy as aggravating factor - Severe impact on victim - Breach of trust and responsibility - Persistent offending - Standard sentence (6 years) applicable to two charges - Appeal allowed - Resentenced to 10 years and 6 months' imprisonment, non-parole period 7 years 6 months - Crimes Act 1958 s 45(1), Sentencing Act 1991 s 5A.

1 The respondent (A) pleaded guilty to three charges of sexual penetration of a child under 16. The victim of the offending was his niece (T), who was aged between 12 and 15 during the period of the offending.

2 A was sentenced to 6 years' imprisonment on two of the charges and 6 years and 10 months' imprisonment on the third. With orders for cumulation, the total effective sentence was 8 years and 10 months' imprisonment. A non-parole period of 5 years and 8 months was fixed.

3 The Director of Public Prosecutions now appeals against the sentences imposed on the ground of manifest inadequacy. For reasons which follow, we would uphold that appeal. This was very serious offending, made all the more so by the fact that one of the charged acts resulted in T becoming pregnant and carrying her child to term. Significantly higher sentences were called for.

4 The resentencing exercise is more complicated than usual because of a separate appeal by A against the sentence of 6 years imposed on charge 1. Unfortunately, in determining the appropriate sentence for that charge, the judge was led into error in two respects. First, the indictment incorrectly identified s 49B(1) of the Crimes Act 1958 as the applicable provision. In fact, because of the date of the offence, s 45(1) was the applicable provision and the offence carried a maximum penalty of 10 years, rather than the maximum of 15 years fixed by s 49B(1).

5 Secondly, his Honour was informed by both counsel - erroneously - that the standard sentence scheme applied to charge 1. This was most unfortunate, as his Honour had specifically asked the prosecutor to explain how it was that the standard sentence scheme applied to the charges.

6 As a result, his Honour imposed sentence on that charge by reference to two guideposts - a maximum penalty of 15 years and the standard sentence of 6 years - neither of which was applicable. Properly, senior counsel for the Director conceded that the sentence was vitiated by those errors. We do not, however, accept the Director's submission that no different sentence should be imposed. We will allow A's appeal against sentence on that charge, and reduce the sentence from one of 6 years' imprisonment to one of 4 years.

7 The final complication is that the charged act resulting in pregnancy was incorrectly identified as that on which charge 3 was based. It was common ground in this Court that the pregnancy was attributable to the conduct the subject of charge 2. As will appear, we will impose a sentence of 8 and a half years on charge 2, which is substantially higher than the sentence of 6 years and 10 months imposed on charge 3, which the judge believed (incorrectly) was the charge involving pregnancy.

8 The new sentences on the sexual penetration charges will be 4 years, 8 and a half years and 7 years respectively. With orders for cumulation, the total effective sentence will be 10 and a half years and we will set a non-parole period of 7 and a half years.

9 A is the maternal uncle of T, who was born on 3 November 2003. T's family had relocated to Australia in 2001. A came to Australia in 2007 and became an Australian citizen.

10 The first offence occurred when T was 12. T lived with her mother and three siblings, and they had just moved into a new home. On an occasion between 3 November 2015 and 2 November 2016, T was at her house with A. Nobody else was at home. A was there in order to take T to a party.

11 A took T to the couch and lifted her dress. He removed her shorts and then his own. T was lying on her back. A then inserted his penis into her vagina, moving her underwear to the side (charge 1). T complained that this hurt and she began to bleed. A told T to wash herself, and not to tell anyone what had happened. A then took T to the party.

12 The second offence was committed between 1 May and 30 September 2018. A had taken T's siblings to soccer training. T was at the park listening to music, and A had then picked her up and taken her back to his house. T was watching television in her school uniform. A changed into a robe and came into the room and hugged T.

13 A then proceeded to rub T's back, pushed her onto the couch and pulled her shorts down. A opened his robe and inserted his penis into T's vagina. After a period of time, he picked up T and took her to his bedroom. He then lay on top of T and continued to penetrate her with his penis (charge 2). Following this offending, A told T to have a shower, which she did. He then took her back to the park.

14 The third offence was committed on 14 November 2018, when T was 15 years of age. A picked T up from a school excursion, at the request of her mother, and drove her home. When they reached T's home, A took her to her room, pushing her onto the bed. He pulled her pants down and inserted his penis into her vagina whilst lying on top of her (charge 3). T told A to stop, but he did not. Instead, he grabbed T's hand tightly. It was a few minutes before he stopped. A told T to have a shower and he left the house.

15 As a result of the sexual intercourse on the second occasion, T became pregnant. T's mother noticed that her stomach was very large and took her to the doctor. The pregnancy was confirmed by the doctor, and T informed her mother that it was her uncle who had done this. T reported the offending to the police. At this stage, she was 28 weeks' pregnant and, because of the late stage of pregnancy, the pregnancy could not be terminated. The child was born on 7 April 2019 (which shows that the pregnancy must have resulted from charge 2, not charge 3.)

16 It was reported by T that A had penetrated her in a similar way, at her home, on more than 10 occasions. The prosecutor told the judge that these uncharged acts were relied on only to provide context, that is, to enable his Honour to assess 'the whole of the circumstances of the offending'.

17 A was arrested and bailed on 29 December 2018. Following an attempt to leave the country, he was apprehended and interviewed by police on 22 January 2019. During a record of interview, A denied the offending.

18 The judge characterised A's offending in these terms:

You first offended against a child who was 13 years younger than you; she was then half your age. Moreover she was a blood relative to whom you owed a duty of trust and responsibility. Your contact with her on these occasions came about largely because of the trust reposed in you by your sister. You offended against your victim in her own home and on a number of occasions in her own bedroom and the sex you had with her was (on at least the last occasion it seems) unprotected. The offending occurred on multiple occasions and over a protracted period of time. This resulted in your 15 year old niece becoming pregnant.

The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity. The prohibition and the maximum penalty for its contravention is intended to deter others who may consider engaging in sexual activity with a child.[2]

19 His Honour referred to T's victim impact statement, which he summarised in these terms:

The victim speaks of her fear, confusion and feeling of being trapped because she did not feel she could speak to anyone about your actions. The birth of the baby and the decision to keep it has had a dramatic, if not cataclysmic effect on your young victim. She speaks of the fact that she no longer trusts people and has a fear of men in general. Her life has become a whirlwind of interactions with doctors, social workers, psychiatrists, counsellors and mental health workers. She has had to deal with police and child protection in relation to this matter. She is struggling with finishing her education and raising a child and she is scared for her future. She has made it clear that you will not be a father figure in your child's life.

The victim impact statement is a brave and articulate statement from a very young woman. It speaks eloquently of the fact that you have changed her life forever by your grossly selfish and predatory sexual behaviour.

It is apparent from the Victim Impact Statement that the victim was (as I have said) in fear and confused by your criminal actions at the commencement of your sexual activity with her. It is clear that your conduct was never welcomed, nor sought by her, and on at least the last occasion, she asked you to stop but you persisted. In other words, the Victim Impact Statement spells out in explicit and unmistakable terms the harm that your actions have caused to your victim.[3]

20 His Honour noted that the offending against T constituted the only sexual encounters A had had. His Honour said:

This provides no excuse. Your offending is utterly abhorrent and deserves the denunciation of all likeminded thinking people in the community.[4]

21 The judge noted that A had come to Australia in 2007 and, after completing Year 11, had been in regular employment. He did not consume alcohol or drugs, and had no mental health issues. His Honour accepted that A's early pleas of guilty should be given weight for their utilitarian benefit. His Honour was not, however, persuaded that there was sufficient evidence to find that A was remorseful.

Overall, I consider that you do have good prospects for your rehabilitation. Nevertheless, I do consider these are somewhat predicated upon you openly and fully accepting the wrongfulness of your actions.[5]

Sexual penetration of a child under 16 years (s 49B(1) Crimes Act 1958)

Sexual penetration of a child under 16 years (s 49B(1) Crimes Act 1958

Sexual penetration of a child under 16 years (s 49B(1) Crimes Act 1958)

6AAA statement: 12 years' imprisonment with a non-parole period of 8 years and 6 months

• Notation pursuant to s 6F of the Sentencing Act 1991 that the offender was sentenced as a serious sexual offender in respect of charge 3; and

• pursuant to s 34 of the Sex Offenders Registration Act 2004 the length of the reporting period is life.

24 As noted earlier, the judge was given incorrect information about the sentencing parameters applicable to charge 1. The indictment identified s 49B(1) of the Crimes Act 1958 as the applicable section. Although the offence of sexual penetration of a child under 16 existed at the relevant time, the applicable section was (the now-repealed) s 45(1). Importantly, the maximum penalty under that section was 10 years' imprisonment, whereas its successor s 49B(1) carries a maximum penalty of 15 years' imprisonment.

25 Secondly, his Honour was told by both counsel that all three charges attracted the operation of the standard sentence scheme.[6] In fact, as the Director's written case helpfully pointed out, the offence the subject of charge 1 was committed before 1 February 2018, such that the standard sentence scheme had no application. As a result of counsel's error, the judge approached the sentencing task on the basis that he was obliged to have regard to the standard sentence of 6 years' imprisonment.

26 The contention advanced on A's application for leave to appeal was that the sentence of 6 years' imprisonment on charge 1 was manifestly excessive. Senior counsel for the Director disputed that contention, but conceded that the sentence was vitiated by specific error because the wrong sentencing 'guideposts' had been applied. The Court was then required to decide whether a different sentence should be imposed.[7]

27 The Director submitted that, even when viewed against the correct maximum of 10 years' imprisonment, the sentence of 6 years remained an appropriate sentence for charge 1. This submission was maintained notwithstanding counsel's acknowledgment that the sentence which the judge imposed was 40 per cent of what he believed the maximum to be, whereas a sentence of 6 years would represent 60 per cent of the correct maximum.

28 In our view, a sentence representing 60 per cent of the maximum penalty would be disproportionate even for a serious offence like this, given that A pleaded guilty and had no prior convictions. We will allow A's appeal against that sentence; order that the indictment be amended, pursuant to s 165 of the Criminal Procedure Act 2009, to insert the correct section number; set aside the sentence of 6 years; and substitute a sentence of 4 years' imprisonment on that charge.

29 The submission for the Director was that A's offending was rightly described by the judge as 'utterly abhorrent' and 'very serious'. Attention was drawn to the aggravating features noted by the judge, as follows:

• the significant age disparity;
• the grave breach of trust;
• the repetition of the offending over a protracted period of time; and
• one of the charged acts having resulted in T becoming pregnant and giving birth.

30 The Director's submission particularly emphasised the 'profound harm, including significant psychological distress' suffered by T. The consequence of A's 'selfish and predatory' behaviour was that T's life had been changed forever. She had become a mother at 15 and had taken on, as she described in her own statement, all of the responsibility of a single parent at an extremely early age. The Director pointed out that in Director of Public Prosecutions v Dalgleish, pregnancy was said to be 'a highly aggravating factor'.[8]

31 Senior counsel for A acknowledged the aggravating features of the offending but submitted that the sentences imposed were reasonably open to the judge in the circumstances. The sentencing reasons showed, it was said, that his Honour had carefully considered all of the relevant matters, including in particular the impact on the victim. Counsel for A accepted that the offending was objectively serious but submitted that the judge had correctly recognised its seriousness.

32 Counsel submitted that the 'extremely early' plea of guilty was a very strong mitigating factor, given that it had saved T the trauma of giving evidence. The sentence should be seen as properly reflecting the significant utilitarian benefit of the plea. Counsel also emphasised that A had no prior, and no subsequent, convictions. In the circumstances, it was submitted, the sentences imposed on charges 2 and 3 were 'unremarkable'.

33 As this Court has often said, sexual abuse of children by those in positions of trust or responsibility with respect to them calls for severe punishment. As T's uncle, A was in breach of the trust reposed in him by T and by her mother (his sister). Given A's role in caring for T, what the Court has said about sentencing for incest is apt:

Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility.[9] Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[10]

Incest involving a child is, moreover, a crime of violence. As the Sentencing Advisory Council has pointed out, sexual penetration of a child is inherently violent, whether or not it is accompanied by additional non-sexual violence.[11] Often, as in the present case, the act of sexual penetration causes the child actual physical pain.[12]

In the present case, A exploited for his own sexual gratification the position of trust in which he was placed. These were crimes of violence by their very nature.[13] In addition, the first occasion involved the actual infliction of pain. Although A had the opportunity to pause and reflect after that first offence, he persisted. It was truly appalling conduct.

34 As the Director submitted, the fact that the unprotected sex the subject of charge 2 resulted in T becoming pregnant makes that offence very much more serious. It is difficult to imagine a more profound lifelong impact on the victim of a sexual crime. The sentence imposed needed to reflect those consequences.

35 Charges 2 and 3 fall under the standard sentence scheme and, as a result, the Court in resentencing must have regard to the standard sentence of 6 years. As explained in Brown v The Queen,[14] the standard sentence is a guidepost, which requires the sentencing court to bear in mind a notional case of 'mid-range' seriousness. As the Court made clear, however, the conventional assessment of offence gravity and offender culpability must still be undertaken.

36 We are mindful, of course, of the principle of totality. Notwithstanding the gravity of the offending, A was a first offender, and there has been no subsequent offending. His prospects of rehabilitation are positive - subject to the judge's proper reservation about his acceptance of responsibility. Since the individual sentences must properly reflect the gravity of the offending and A's culpability, we have moderated the orders for cumulation.

37 As noted earlier, the prosecution summary stated that 'incidents as described occurred at home on more than 10 occasions, after [A] picked [T] up from school'. These uncharged acts of sexual penetration, which A admitted, were relied on only as providing context for the assessment of the charged offences.

There are uncharged acts alleged (and admitted) which describe incidents occurring at home after school on more than 10 occasions. I simply note that the uncharged acts provide context and background to the charged acts. They do not attract a separate penalty of their own, nor will I 'top up' or add a premium to the sentences I shall impose for each of your admitted acts to take account of the uncharged acts.[15]

39 As originally filed, the Director's written case contended that his Honour had here fallen into error. It was said that 'all other things being equal, uncharged acts of a similar nature to the pleaded offences will generally result in a heavier sentence than a charge relating to an isolated incident'. This was said to be so, in particular, because of the 'greater impact of harm' on the victim. As the respondent's submission correctly pointed out, however, this submission relied on authorities dealing with sentencing for representative charges.[16]

40 As none of the charges to which A pleaded guilty was a representative charge, this complaint of specific error was not pursued. But the raising of the point highlighted the more favourable sentencing approach which must be adopted when - as here - a plea is settled on the basis that multiple other offences, which are admitted, are treated simply as 'uncharged acts', rather than being included within a representative charge. Their only potential relevance to the sentencing task in the present case was to preclude a defence submission that the offending was 'an isolated incident'. Since, however, no such submission would realistically have been available, the uncharged acts became effectively irrelevant. That seems a remarkable outcome, given the number and seriousness of the uncharged acts.

41 In the course of argument, the Court suggested to senior counsel for the Director that there appeared to be considerable inconsistency in the charging practice adopted with respect to allegations of multiple sexual offences. Thus, appeals brought to this Court reveal that the Crown variously deploys 'rolled-up' charges,[17] 'representative' charges,[18] and 'course of conduct' charges,[19] as well as single charges 'with context' (as here).[20] Typically, there is nothing to indicate why one form of charge was adopted rather than another.

42 This is a matter of some importance, given that different sentencing principles will apply depending on which type of charge is used. Moreover, the variation in charging practice makes the sentencing task more complicated and increases the risk of confusion and error.

43 For the reasons we have given, the appeals will be allowed. On the Director's appeal, the sentences on charges 2 and 3 will be set aside. Because of the confusion generated by the error as to which of those charges resulted in the pregnancy, it now being clear that it was charge 2, we will fix a sentence of 8 years and 6 months on that charge. On charge 3, which was the non-pregnancy charge, we will substitute for the term of 6 years' imprisonment (which the judge considered appropriate for that particular offence absent the link to pregnancy) a term of 7 years' imprisonment.

44 On A's appeal, as noted earlier the sentence on charge 1 will be set aside and a sentence of 4 years' imprisonment imposed.

45 We will direct that one year of the sentence on charge 1 and one year of the sentence on charge 3 be cumulated on the sentence of 8 years and 6 months on charge 2. That will produce a total effective sentence of 10 years and 6 months' imprisonment and we will fix a non-parole period of 7 years and 6 months.

46 The new sentences are reflected in the following table:

Sexual penetration of a child under 16 years (s 45(1) Crimes Act 1958)

Sexual penetration of a child under 16 years (s 49B(1) Crimes Act 1958)

Sexual penetration of a child under 16 years (s 49B(1) Crimes Act 1958)

6AAA statement: 13 years' imprisonment with a non-parole period of 9 years and 6 months

• Notation pursuant to s 6F of the Sentencing Act 1991 that the respondent is sentenced as a serious sexual offender in respect of charge 3; and

• pursuant to s 34 of the Sex Offenders Registration Act 2004 the length of the reporting period is life.

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the respondent's name.

[2] DPP v Amaral (a pseudonym) [2019] VCC 2178, [26]-[27] (Judge Lyon) ('Reasons'). His Honour regarded the conduct the subject of charge 3 as involving unprotected sex because it had resulted in T's pregnancy. As we have noted, however, it was common ground in this Court that it was the conduct the subject of charge 2 which resulted in her pregnancy.

[6] Sentencing Act 1991 s 5A.

[7] Criminal Procedure Act 2009 s 281(1)(b).

[8] DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, [25] (Maxwell ACJ, Redlich and Beach JJA) ('Dalgliesh [No 1]').

[9] See, eg, R v Ware [1997] 1 VR 647, 653 (Hedigan AJA) and DPP v G [2002] VSCA 6, [9]-[10] (Winneke P).

[10] Sutton (a pseudonym) v The Queen [2015] VSCA 251; (2015) 47 VR 496, 505 [28]; [2015] VSCA 251 (Maxwell P and Redlich JA).

[11] Dalgliesh [No 1] [2016] VSCA 148, [46] (Maxwell ACJ, Redlich and Beach JJA). See also Sentencing Advisory Council, Sentencing of Offenders: Sexual Penetration with a Child under 12 (10 June 2016) 63.

[12] DPP v Walsh [2018] VSCA 172, [1]-[2] (Maxwell P and McLeish JA).

[13] Dalgliesh [No 1] [2016] VSCA 148.

[14] (2019) 59 VR 462; [2019] VSCA 286.

[16] DPP v EB [2008] VSCA 127; R v CJK (2009) 22 VR 104; [2009] VSCA 58; R v SBL [1999] 1 VR 706; [1998] VSCA 144; Reid (a pseudonym) v The Queen (2014) 42 VR 295; [2014] VSCA 145.

[17] See Schembri v The Queen [2020] VSCA 217; Treloar v The Queen [2020] VSCA 6.

[18] See Lugo (a pseudonym) v The Queen [2020] VSCA 75; Nelson (a pseudonym) v The Queen [2020] VSCA 36; Mush v The Queen [2019] VSCA 307; Fichtner v The Queen [2019] VSCA 297; DPP v Cramp [2019] VSCA 174.

[19] Lyon (a pseudonym) v The Queen [2019] VSCA 251; Pickford (a pseudonym) v The Queen [2019] VSCA 195.

[20] See also DPP v Polat (a pseudonym) [2020] VSCA 174; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Treloar v The Queen [2020] VSCA 6.