DPP v B D J [2009] VSCA 298

1 The respondent pleaded guilty to one count of indecent act with a child under 16 and five counts of incest, four of which were representative counts. After hearing a plea in mitigation of sentence, the learned trial judge sentenced him as follows:

2 This amounted to a total effective sentence of 6 years and 6 months' imprisonment. Her Honour ordered that the respondent serve a non-parole period of 4 years and 4 months and that he be sentenced as a serious sexual offender in relation to counts 3 to 6, pursuant to Part 2A of the Sentencing Act 1991.

3 The Director now appeals, arguing that the individual sentences, the total effective sentence and the non-parole period are all manifestly inadequate.

4 The respondent is now 44. He was between 34 and 37 at the time of offending and 43 at the time of sentence. He had no prior convictions.

5 All the offences were committed between 1 January 2000 and 12 August 2002, against his daughter, who was between 15 and 17 years old.

6 The respondent grew up in a large extended Maori family in New Zealand. When he was 19, he married the victim's mother, after she became pregnant. This caused conflict between their families, leading the respondent to move to Melbourne and leave his new wife and baby within months of her birth. He had little contact with the victim until she came to live with him in 2000.

7 The victim was brought up by her maternal grand-parents in New Zealand until she was about 7 years old, when she moved to Sydney to live with her mother. Between the ages of 12 and 14 she lived either with her mother in Sydney or with her maternal grandparents. Because her mother was having difficulty in controlling her, the mother asked the respondent if the girl could come to live with him. When he agreed, the victim moved from Sydney to live with the respondent in Melbourne, where the offences were committed. At that time, the respondent was living with his de facto partner, EM, and their daughter, O, and the victim's uncle.

8 The respondent performed the role of carer for EM, who was suffering from serious health problems, from 1990 until 2001, when they separated. EM died in 2003. From 2003 the respondent was responsible for caring for his mother, who had a heart condition and uncontrollable diabetes, and for his younger daughter, who was aged 13 at the date of sentence.

9 The respondent first touched the victim sexually after he had been drinking heavily with other relatives. He got into bed with the victim, who was then aged about 15, and touched her on her breast and vagina. About a week later he asked the victim why she had been avoiding him and she told him what had happened. He was upset and apologised to her. He telephoned his parents and told his de facto partner what had happened. There was then a family discussion in which he said he was very drunk and had thought he was in bed with his partner. It was decided that the matter would be kept in the family and the victim agreed. He was not charged with any offence arising out of that incident, but the count of indecent act and the counts of incest described below occurred in 2000 and 2001 and until August 2002.

I note that your extended family has a strong interest in Rugby League and I am told that on one occasion in 2000, that is, between 1 January and 31 December 2000, after attending a game between the Melbourne Storm and the Canterbury Bulldogs, numerous members of the family gathered at your home and stayed overnight, which led to the complainant sleeping with her sister in your bed. At some stage you entered the bedroom, lay beside the complainant, undid her pants and touched her vagina for a period of time. These matters constitute Count 1, the indecent act offence on the presentment.

Following this offence, I am told that you performed oral sex on the complainant, inserting your tongue into her vagina for a period of about five minutes before you fell asleep, after which the complainant left the bed, showered and then went to the garage to sleep. These further matters constitute the first incident in respect to the representative incest count, Count 2 on the presentment. However, in respect to this count, for the period between 1 January and 31 December 2000, the complainant also said that:

'During the early times my father would either come into my bedroom and do what I have previously described or he would often use the excuse that I was to sleep in his bed because [BO] slept in there also. ... He masturbated sometimes when he gave me oral sex. There were so many times that happened and sometimes he would masturbate and sometimes he wouldn't.'

The next representative incest count is Count 3, also arising in the period between 1 January and 31 December 2000. According to the summary, approximately a week and a half after the first incident described in Count 2 you entered the complainant's room where she was in bed, you removed her blanket and her underwear and, although she tried to push you away, you then spread her legs apart and inserted your penis into her vagina. According to the complainant you ejaculated between her legs, after which you sat on the bed and apologised and cried. You also told the complainant that if she mentioned this incident to anyone you would be in trouble and 'locked away.'

I am told that sexual intercourse occurred again the following day, and as the complainant said in her statement:

'It became habitual, what was going on. My father would come and approach me and have sex with me. Each time I struggled less and less. I didn't put much of a fight on. I moved and I cried but I didn't do anything to help myself. I don't understand why.'

Aggravating features of the offending described in Count 3 on the presentment are that, according to the complainant, you often had sexual intercourse with her whilst your youngest daughter was in bed asleep next to

you both, and that you impregnated the complainant prior to the termination of the pregnancy in April 2001.

The next count on the presentment, Count 4, is a further representative incest count, this time relating to the period between 1 January and 31 December 2001. This count covers the regular occasions on which you had sexual intercourse with the complainant following the termination of her pregnancy with your child. Aggravating features of this count include the fact that you made the complainant take the pill to give you the freedom to ejaculate, presumably without the risk of further pregnancy.

The next incest count, Count 5 on the presentment, is not a representative count and it relates to an occasion which occurred between 1 January and 31 December 2001, when you asked to speak to the complainant in the bedroom. Once there, you informed her that you wanted to try something different before you instructed the complainant to go down on 'all fours.' However, rather than, as the complainant expected, having vaginal intercourse, you apparently thrust your penis in and out of her anus, causing bleeding and causing the complainant ongoing pain and discomfort. An aggravating feature of this count is the physical pain and anal bleeding caused to the complainant.

The last incest count on the presentment, Count 6, is another representative count relating to the period between 1 January and 12 August 2002, when, whilst in her last year at high school, you continued to have regular sex with the complainant every week.

I am told that the abuse of your eldest daughter ceased in the latter part of 2002, after she re-established contact with her mother and returned to Sydney before going back to New Zealand to live with relatives.

Eventually the offending was reported by the complainant to New Zealand police, who obtained the record of interview and statement I have already mentioned. Subsequently, police from Moorabbin CIU were notified, and in June 2006 you were interviewed, at which time you admitted the touching conduct described in the summary of the uncharged act, but otherwise you emphatically denied any subsequent sexual conduct, attributing the allegations made to the complainant's jealousy of your relationship with your ex-partner at the time.[1]

11 Her Honour also noted that the respondent denied that the victim had become pregnant as a result of intercourse with him and said that he had had a vasectomy. The medical centre where he said he had had this procedure had no record of it occurring. The respondent later pleaded guilty to the offences.

12 At the plea hearing counsel for the offender said it was accepted that count 1 and the incident giving rise to count 2 were not consensual. Counsel for the offender at the plea hearing also said that it was accepted by the Crown that the offender had believed that the victim had consented to the acts which provided the context within which representative count 2 occurred and to the acts covered by counts 4 to 6.

13 At the plea hearing counsel for the Crown said that the pleas were offered and accepted on the basis that the offender believed that the victim was consenting to the sexual acts the subject of counts 4 to 6, but that she had not in fact consented, and had simply acquiesced in his behaviour.

14 The judge below described the victim's behaviour as indicating 'acquiescence rather than consent'.[2] She said:

Whilst there is no evidence of coercion or force, in my view the transcript of the interview of the complainant by police in New Zealand and her statement clearly indicate her view that it was not consensual sex. For instance, I note that at p.70 of the depositional material the complainant said:

'Because the sex happened more and more it became a habit kind of thing, I remember he started talking more. He talked a lot during it and he asked me if I was all right, and how he was feeling. He would say things like it feels good. He'd say he wanted it harder. He'd say I've been naughty. He'd say those kind of things. Like that sort of same context. He'd just go on about how much he enjoyed it kind of thing. He shushed me a lot. Told me to be quiet. Told me to bite the pillow sometimes. He put his hand over my mouth sometimes because there were feelings that were going through my body as well. The thing is that I would feel certain feelings and stuff that I couldn't explain within my body while it was happening and I was disgusted in myself.'[3]

15 On the hearing of the appeal it was properly accepted by counsel for the respondent that the acquiescence of the victim was not a mitigating factor. In a case such as this, a lack of belief as to consent would aggravate the respondent's moral culpability. The Crown's concession means no more than that it did not rely on this aggravating factor in respect of the counts in relation to which the respondent had no belief as to consent.

16 Counsel for the Director submitted that the individual sentences (particularly those imposed on count 1 and representative count 2) were manifestly inadequate. He submitted that the indecent act covered by count 1 and the incident on which count 2 was based amounted to grooming behaviour which habituated the victim to the later acts of incest. He submitted that her Honour had given insufficient weight to the representative nature of counts 2, 3, 4 and 6 and to the aggravating features of the offending, including the fact that the victim became pregnant to the offender and that he later coerced her to take oral contraceptives.

17 He further submitted that the orders for cumulation made by her Honour did not give adequate weight to the fact that the offender fell to be sentenced as a serious sexual offender on counts 3, 4 and 6. Nor did it give adequate weight to general and specific deterrence and denunciation, or to the need to establish and maintain adequate standards of punishment for the crimes of indecent act with a child under 16 and incest.

18 Counsel for the respondent submitted that the sentences of 4 years' imprisonment imposed on counts 2, 3, 4 and 6 were well within the range of sentences imposed for incest and should not be regarded as falling at the bottom of the range for that offence.

19 In support of that submission he relied on Director of Public Prosecutions v OJA,[4] in which the sentencing judge had sentenced OJA to 6 years' imprisonment on each of nine counts of incest and one of his co-offenders, WBA, to 6 years' imprisonment on each of twenty counts of incest. The Director unsuccessfully appealed against the individual sentences imposed for incest and other sexual offences and the total effective sentence imposed on OJA and WBA on the grounds of manifest inadequacy. Nettle JA reviewed the sentences imposed in a number of earlier incest cases and noted that the examples to which the prosecutor referred suggested that an individual sentence of 6 years' imprisonment was towards the upper end of the range then being imposed for counts of incest, even after the increase in the maximum penalty to 25 years' imprisonment. Counsel for the respondent submitted that the victim of the incest offences committed by OJA was younger than the complainant in this case and that the offending went on for a longer period.

20 Counsel further relied on the fact that the respondent had not had a meaningful relationship with his daughter until she came to live with him and that in effect she had been 'foisted on him' by her mother. In the written outline of submissions it was submitted that:

The complainant was until that time, in effect, a stranger to the respondent. Therefore, insofar as [the respondent] had breached a relationship of trust owed to the complainant, this relationship was of a different nature and order to the relationship that is normally found in cases of sexual offending by parents or grand-parents against their children or grand-children. An emotional bond or relationship of trust had not established itself between [the respondent] and the complainant over the many years that had elapsed since the complainant was born. The complainant was not a young child or infant. She was a young woman who had a level of prior sexual experience.

21 In his oral submissions counsel for the respondent said that this was a very unusual case of incest because the offender had not had a previous relationship with his daughter. Her Honour had accepted that the offending was situational and that the offender was not a paedophile. Counsel for the respondent also submitted that it was appropriate for her Honour to give considerable weight to the fact that the respondent pleaded guilty and was remorseful. The respondent had no prior convictions and was unlikely to re-offend.

22 Counsel for the respondent's written submissions also cited a number of cases in which the sentences imposed for incest were lower than those imposed in this case[5] and referred to the Sentencing Advisory Council Sentencing Snapshot, for the years 2002-3, and 2006-7, showing that over that period the median length of imprisonment for incest was four years.

23 The restraints which apply to Director's appeals against sentence have been frequently stated. In order to succeed on this appeal the Director must establish that the individual sentences or the total effective sentence reveal such a manifest inadequacy, or inconsistency in sentencing standards, as to constitute error in principle, or that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience.[6]

24 Having regard to the double jeopardy principle which applies to Director's appeals, and to the respondent's guilty plea, we do not consider that the individual sentences imposed on counts 3 to 6 were manifestly inadequate. In reaching that view we have had regard to the authorities relied upon by the respondent and a number of more recent sentences imposed for the offence of incest.[7] We have also taken account of the respondent's guilty plea and the double jeopardy principle which applies to Director's appeals

25 In our opinion, however, the individual sentences imposed on counts 1 and 2 and the total effective sentence imposed on the respondent did not adequately reflect the gravity of the offending, or its effect on the victim. So far as the individual sentences imposed on counts 1 and 2 are concerned, we would accept the submission made on behalf of the Director that these offences habituated the victim to the offending and set the stage for the commission of the later representative counts of incest.

26 We also consider that the total effective sentence did not give sufficient weight to specific and general deterrence and denunciation. As Eames JA commented in Director of Public Prosecutions v VH:[8]

The very fact that there have been so many incest cases coming before the courts explains why considerations of general and specific deterrence have been given continuing and particular weight by this court: the court has said many times that sentences for these offences must reflect the abhorrence within the community for such conduct.[9]

27 In relation to the submissions made by counsel as to Nettle JA's remarks in Director of Public Prosecutions v OJA,[10] we also refer to Nettle JA's comments in [30] and [31] of his reasons, where his Honour said:

... the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.

Thirdly and importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. Accordingly, to say of an individual sentence of six years, or a total effective sentence of fifteen years [these were the sentences imposed in that case], that it is near as large as any before imposed for offending of this kind, is not necessarily an answer to the question of whether it is manifestly inadequate.[11]

28 The respondent had to be sentenced as a serious sexual offender on counts 3 to 6.[12] In R v R H McL the High Court noted the significance of s 6E of the Sentencing Act 1991 which creates the presumption that sentences imposed on serious sexual offenders will be served cumulatively.[13] Although her Honour recognised that this was the case in her sentencing reasons, we do not consider that she gave it sufficient weight.[14] As McHugh, Gummow and Hayne JJ said:

The need for judges not to compress sentences is especially important where the accused person is a 'serious sexual offender' within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[15]

29 In our view the total effective sentence is manifestly inadequate despite the mitigating factors on which the respondent is entitled to rely, including his plea of guilty, his absence of prior convictions, his family circumstances and his willingness to undergo treatment for his behaviour.

30 The respondent's response to his daughter's upset after he touched her for the first time shows that he knew he was acting wrongly. The victim was a troubled adolescent girl, who was sent to live with her father because of her difficulties in getting on with her mother. Instead of guiding and assisting her, as a father should have done, he took advantage of her and manipulated her. In the case of count 3 he did so by apologising and crying after he had offended and by telling her that if she told anyone of the abuse he would be 'locked away'.

31 We do not accept the submission that the respondent's moral culpability for incest was lessened by the fact that he had not previously had a meaningful relationship with his daughter. It is not surprising that a young girl who was attempting to establish a relationship with a father who had previously had a very minor role in her life did not know what to do about the abuse. The respondent was aware that the victim initially resisted the abuse, although she later came to acquiesce in it. But acquiescence in the sexual abuse of a girl aged between 15 and 17 by her 43 year old father can hardly be regarded as mitigating the respondent's moral culpability. So much was conceded by counsel for the respondent. The fact that the victim may have had some prior sexual experience did not excuse the respondent for his gross breach of trust. The victim's pregnancy and her need to have an abortion to conceal the respondent's wrongdoing must also have increased the impact of the offending on the victim.

32 As her Honour recognised, the gravity of the offending was also aggravated by the length of the period over which the offending occurred, and its repetitious nature, which would have contributed to the victim's apprehension that it would occur again.[16]

33 The complainant's victim impact statement speaks movingly of the way in which her father's sexual abuse has affected her. The psychological report of Dr Vincent Marziano notes the respondent's cognitive distortions resulted in self-justifying behaviour which attempted to shift responsibility to the victim, although she was only 15 when he began to abuse her. Her Honour correctly rejected the view that the victim's failure to resist the offending or to leave her home for some time reduced the gravity of the offending.

34 As we have said, the respondent fell to be sentenced on counts 3 to 6 inclusive as a serious sexual offender. Under s 6E of the Sentencing Act 1991 it is presumed

that the sentences imposed will be served cumulatively, except to the extent that the judge otherwise orders. In sentencing the respondent, her Honour said that the orders for cumulation were intended to reflect the 'different offences, the times at which the offences occurred and the further episodes of offending'.[17] In our view, the gravity of the offending required a greater degree of cumulation of the sentences imposed on counts 3, 4 and 6.

35 Having had regard to the mitigating factors, the principle of double jeopardy and to the respondent's guilty plea, we would re-sentence him as follows:

36 This amounts to a total effective sentence of 8 years and 6 months' imprisonment. We would fix a non-parole period of 5 years and 6 months.

1. The appeal by the Director of Public Prosecutions is allowed.
2. The sentences imposed on the respondent on 16 June 2008 are

quashed. In lieu thereof the respondent is re-sentenced as follows:

The Court directs that 1 year of each of the sentences imposed on counts 3 and 6 and 9 months of each of the sentences imposed on counts 4 and 5 be served cumulatively on the sentence imposed on count 2 and on all other counts, giving rise to a total effective sentence of 8 years and 6 months' imprisonment.

1. A non-parole period of 5 years and 6 months is fixed.
2. The respondent is sentenced for the offences the subject of counts 3 to 6 as a serious sexual offender and it is ordered that that fact be noted in the records of the Court.
3. It is declared that the period of 551 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.
4. All other ancillary orders are confirmed.

The Court grants to the respondent an indemnity certificate pursuant to s 15 of the Appeal Costs Act 1998.

[1] (Unreported, County Court of Victoria, Judge Millane, 16 June 2008) ('Reasons'), [26]-[35].

[4] [2007] VSCA 129; (2007) 172 A Crim R 181.

[5] R v GAM [2003] VSCA 185; R v Olivar [2004] VSCA 41; (2004) 8 VR 154; R v RTG [2004] VSCA 89; DPP (Vic) v OJA [2007] VSCA 129; (2007) 172 A Crim R 181; DPP (Vic) v EB [2008] VSCA 127; R v PJS [2004] VSCA 52; DPP (Vic) v DAK [2004] VSCA 175; DPP (Vic) v G [2002] VSCA 6; DPP (Vic) v PBW [2003] VSCA 144; DPP (Vic) v VH [2004] VSCA 180; (2004) 10 VR 234; R v FVK [2002] VSCA 225; DPP (Vic) v GJL [2004] VSCA 35; R v DM [2007] VSCA 155.

[6] See, for example, R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522-3 (Charles JA) and the cases cited therein; DPP (Vic) v Josefski [2005] VSCA 265; (2005) 13 VR 85; DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542 (Redlich JA).

[7] For example R v LFJ [2009] VSCA 134 (son aged between 12 and 13); R v Bellerby [2009] VSCA 59 (child aged between 8 and 9); DPP (Vic) v RAL [2008] VSCA 140.

[8] [2004] VSCA 180; (2004) 10 VR 234.

[10] [2007] VSCA 129; (2007) 172 A Crim R 181.

[12] See Part 2A of the Sentencing Act 1991.

[13] [2000] HCA 46; (2000) 203 CLR 452.

[15] [2000] HCA 46; (2000) 203 CLR 452, 476-7.

[16] See DPP (Vic) v DDJ [2009] VSCA 115, [10].