DPP v C J A [2013] VSCA 18

2 On 30 April 2012, the respondent was sentenced to a total effective sentence of seven years and six months' imprisonment, with a non-parole period of five years. The individual sentences and orders for cumulation are set out in paragraph 18 below. In relation to charges 3 to 8, the respondent was sentenced as a serious sexual offender under Part 2A of the Sentencing Act 1991.

3 The Director of Public Prosecutions ('Director') now appeals against the total effective sentence and non-parole period imposed, on the basis that they are manifestly inadequate.

4 The victim, who suffers from 'significant sub-average general intellectual functioning and significant deficits in adaptive behaviour',[1] is the respondent's natural daughter. The respondent only met the victim when she was 18, approximately a year before the offending occurred.

5 In late 2010, the respondent was contacted by the victim, who was having difficulties with her mother and wanted to leave home. The respondent collected the victim from her mother's house and she went to live with him in New South Wales. Later the respondent returned to Victoria with the victim, where she lived with him for short periods in his elderly parents' home and with an aunt. Over a six week period, the respondent engaged in various acts of digital, lingual and penile/vaginal penetration with the victim. The Crown did not allege that he used force or violence against the victim.

6 On 5 April 2011, the respondent took the victim to the doctor and she discovered that she was five weeks pregnant. After she told her mother that she was pregnant with her father's child, the matter was reported to police.

7 On 22 April 2011, the respondent was arrested and interviewed by police. In his record of interview, he admitted that he had engaged in sexual activities with the victim, but said that she had initiated sex. He said that the victim was 'not as dumb as everyone thinks' and that she was 'very mature when it comes to sex'.

8 On 7 November 2011, the victim gave birth to a boy, who suffers from multiple health complications, including mirrored organs. He is expected to require medical treatment indefinitely.

9 The judge sentenced the respondent on 30 April 2012, after hearing submissions from counsel on 2 March 2012 and on 24 April 2012 and considering the matter for some time.

10 On 2 March 2012, his Honour asked the prosecutor whether the Crown proposed to rely on a causal link between the acts of incest and the fact that the child was born with serious disabilities, as an aggravating feature of the offending. Although it was initially proposed that this causal question would be investigated by chromosomal testing of the child, the matter was not pursued by the Crown at the second plea hearing. However, the prosecutor submitted that the victim's pregnancy and the effect on her and her mother of having to care for a disabled child were aggravating features of the offending.

11 Defence counsel conceded that the fact that a pregnancy resulted from the incestuous conduct was an aggravating feature of the offending, and that due to her intellectual disability, the victim was a vulnerable person.

12 In his reasons for sentence, his Honour referred to these concessions and also to the prosecutor's concession that absence of consent was not relied upon as an aggravating factor. Nevertheless, his Honour said that the consequences of the offending for the victim and her mother (who was responsible for caring for the child) were 'truly devastating and continuing', and noted the importance of general deterrence and denunciation when sentencing for offences of this kind.[2]

13 His Honour considered the victim impact statements made by the victim and her mother. In particular, he described the victim's feelings of 'sadness, depression, and anger' about the offending, and her worry about her child, who has medical problems that she does not understand.[3]

14 His Honour took into account the 'significant admissions' made by the respondent to police, and accepted that his guilty plea at the earliest opportunity entitled him to a significant reduction in sentence.[4] He also took into account the submission that prison would be onerous for the respondent, due to his 'unsophisticated' personality, and the fact that he would receive few, if any, visits.[5]

15 Having taken account of sentencing statistics and a summary of the facts of and sentences imposed in a number of recent incest cases,[6] his Honour accepted defence counsel's submission that the respondent's offending could be distinguished from the 'worst cases of this crime', because of the following features:[7]

1 The complainant, albeit vulnerable, was an adult who had "demonstrated a level of adult independence."

1. The complainant had not known [the respondent] until she was aged 18 and had never had a "usual father/child relationship" with [him].

3 The offences occurred over a relatively short period of time.

4 There is no suggestion of physical harm to, or specific degradation of, the complainant.

1. There is no evidence of the absence of consent in relation to any of charges on the indictment.
2. The offending occurred as [defence counsel] put it in "unique circumstances", in the absence of any history of seeking out children or incestuous relationships.

16 The judge said that the respondent had a 'significant number of prior convictions', but noted that his most recent court appearance had occurred nearly 14 years ago. Further, although the respondent had been convicted of an indecent assault, which occurred prior to 1992, he had no other prior convictions for serious sexual offending.[8]

17 His Honour referred to the Crown submission that an appropriate head sentence was 12 to 14 years, but concluded that this suggested range was 'significantly beyond sentencing practices'.[9] His Honour accepted that the offending constituted a 'serious example of incest', because of the vulnerability of the victim as a result of her intellectual disability, the fact that the offences occurred over a six week period when the respondent was in a position of trust, because a pregnancy had resulted as a result of the respondent having unprotected intercourse with the victim and because the impact on the victim and her mother was particularly serious. Nevertheless, his Honour accepted defence counsel's submission that:

for numerous reasons, [the respondent's] conduct ought to be distinguished from the worse cases of this crime, which often involve one or more young child or children being seriously abused by a parent in the family home over many years, accompanied by degradation, intimidation, violence, threats, and terror.[10]

18 Having noted that the respondent fell to be sentenced as a serious sexual offender in relation to charges 3 to 8, the judge imposed the following individual sentences and made the orders for cumulation set out in the Table below.

19 The judge declared, pursuant to s 6AAA of the Sentencing Act 1991, that, but for his plea of guilty, the respondent would have been sentenced to a total effective sentence of ten years' imprisonment, with a non-parole period of seven and a half years.[11]

20 The Director argues that the total effective sentence and non-parole period imposed on the respondent are manifestly inadequate given that the offending was 'an extremely serious example of incest'. The written submission relied on the following factors:

(a) the complainant was intellectually disabled;

(b) the abuse of power, trust and exploitation inherent in offending against such a vulnerable person;

(c) the respondent knew but did not care that she was his biological daughter;

(d) as soon as she came to stay with him he began the relationship;

(e) he totally disregarded the feelings of his daughter;

(f) the conduct was persistent;

(g) the respondent accepts no responsibility for his conduct, instead blames his daughter - see Report of Dr Cutajar [23] - [24] and ROI Q.240-249;

(h) he impregnated his daughter and saddled her with a sick child for life;

(i) the respondent has a significant criminal history which displays his lawless attitude; and

(j) the maximum penalty for this offence is 25 years imprisonment.

21 In his oral submissions, the Director argued that although his Honour had referred to these matters in his sentencing reasons, they were not adequately reflected in the total effective sentence or non-parole period imposed. Although he conceded that the offending did not fall into the most serious category of incest, the Director submitted that the sentences imposed did not give sufficient weight to the gravity of the offences. In that respect, he placed particular emphasis on two aggravating factors. First, the victim had become pregnant and given birth to a child as a result of the respondent having unprotected intercourse with her (charges 2, 5 and 7). Secondly, he relied on the victim's intellectual disability, which made her vulnerable to sexual abuse.

22 The Director relied on a summary of the sentences imposed in 48 incest cases between 2006 and 19 November 2012 which were exhibited by the Crown at the plea hearing ('the Summary') and on two tables of sentencing decisions in incest cases annexed to the reasons of the Court of Appeal in DPP v DJ.[12] Particular reliance was placed on sentences imposed in incest cases in which the complainant became pregnant as the result of incest,[13] in all but two of which,[14] the pregnancy had been terminated. The Director submitted that the sentences imposed in these cases made it apparent that his Honour had given insufficient weight to the fact that the victim had become pregnant as a consequence of the offending and had carried the baby to term, and that both she and her mother would have the ongoing burden of caring for him.

23 The Director also argued that although the prosecutor had relied on an Intellectual Disability Report prepared when the victim was aged 11 years and 7 months, and no recent psychological reports had been tendered as to the victim's mental capacity, it was not disputed by defence counsel at the plea hearing that she was vulnerable to abuse because of her 'significant sub-average general intellectual functioning'. The fact that this would have been evident to the respondent was demonstrated by her mother and aunt's evidence that the victim was immature and enjoyed playing with Barbie dolls, by her response to police questions and by the fact that the police found it necessary to conduct a video and audio-recorded evidence ('VARE') interview and to have an independent third party present when her VARE was conducted.

24 Further, Dr Margaret Cutajar, who had assessed the respondent for the purposes of sentencing, considered that although the respondent had said that the victim's immaturity and intellectual disability were 'an act', this simply indicated his tendency to greatly minimise his responsibility for the offending.[15]

25 The Director also argued that although the judge had said that the respondent was to be sentenced as a serious sexual offender on charges 3 to 8,[16] he had not explained his reason for imposing only moderate orders for cumulation. Under s 6E of the Sentencing Act 1991, a sentence imposed on a serious offender for a relevant offence (charges 3 to 8) must:

unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

26 The Director submits that the judge should have cumulated a higher proportion of the sentences imposed on these charges and the judge's failure to make appropriate orders for cumulation had resulted in a manifestly inadequate sentence. In particular, the orders of 5 months cumulation on the sentences imposed on charges 5 and 7, both of which involved penile/vaginal penetration exposing the victim to the risk of pregnancy, were manifestly inadequate .

27 The respondent argued that the judge's reasons made it clear that he had regarded the victim's pregnancy, the vulnerability arising from her intellectual disability and the impact of the child's birth on the victim and her mother as significant aggravating factors. The judge had carefully considered the sentences imposed in the cases included in the Summary and had given proper weight to mitigating factors, including the respondent's early guilty plea and his lack of sophistication which may have resulted in him not fully understanding the gravity of the offending. It was submitted that the Summary and the tables of incest sentences in DPP v DJ[17] showed that the total effective sentence was not manifestly inadequate.

28 In total, the orders for cumulation made by his Honour required the offender to serve an additional two and a half years' imprisonment. The respondent submitted that this was not an insignificant period of cumulation, when added to the base sentence of five years. The periods of cumulation reflected the fact that charges 4 and 5 occurred on a single occasion in a car and charges 6 and 7 occurred on a single occasion at the aunt's home. His Honour also had to sentence the respondent on the basis that the offending as a whole occurred over six weeks, by contrast to the many cases in which incest offences have been committed over a period of years.

29 At the plea hearing, the prosecutor had accepted that the extent of cumulation of the sentences imposed on charges other than charge 2 (the base sentence) should be moderated to some extent. Both current sentencing statistics and the case summaries relied upon by the Crown demonstrated that the total effective sentence fell well within the range of sentences which could be imposed for these offences on this offender and the non-parole period of five years was a conventional one.

30 In discussion at the plea hearing, a number of issues were canvassed which were also raised on the appeal. Questions were raised as to whether it would be proper for a sentencing judge to take account of the common view that children born as the result of incest may be more likely to suffer from disabilities, and whether the child should be treated as a victim of the offence because of that risk, or because of the stigma the child may later experience if they disclose their parentage.

31 His Honour in his sentencing remarks noted that the Crown had abandoned the argument that the child should be treated as a victim, as it was unable to prove that it had been within the respondent's contemplation that an unhealthy child would be born. Such an intention, if proved, might in some circumstances amount to a further aggravating factor. However, there was no evidence before the sentencing judge that the child's disabilities were a consequence of the biological relationship of the victim and respondent. Hence, his Honour gave the matter no further consideration. This is, therefore, not the occasion to consider whether a child born of an incestuous relationship and who suffers from disabilities resulting from the biological relationship of the parents, may be also be viewed as a victim. The fact that there was unprotected penile penetration was undoubtedly an aggravating factor.

32 There was also discussion on appeal as to whether a natural parent who commits incest should be regarded as more morally culpable than a step-parent. As this issue was not pursued by the Crown at the plea hearing and was not pressed before us, we do not discuss it here.

33 There is no doubt that these were very serious offences. The respondent was guilty of an appalling breach of trust. The offences covered by charges 1 to 8 were not isolated incidents of wrongdoing, but representative offences. The victim and her mother will live with the consequences of the offending for the rest of their lives. In the case of charges 2, 5 and 7, the respondent failed to take any steps to ensure that the victim did not conceive a child. The fact that she became pregnant and bore a child as a result of the incest significantly aggravates his culpability.

34 Nevertheless, the judge correctly found that these offences did not fall into the worst category of the offence of incest. Although the 'consent' of the victim was, at the least, compromised because of her intellectual disability, the Crown did not rely on lack of consent as an aggravating factor.

35 As the Summary and tables of cases attached to DPP v DJ demonstrate, offences which attract a higher total effective sentence usually involve sustained offending over a longer period, often against young children and/or multiple victims and/or which is commonly accompanied by violence or threats. Even if it is accepted that the victim's intellectual disability made her comparable to a child or adolescent victim of incest, none of these other features were present.

36 Although the judge correctly held that this was not a case falling into the worst category, we would regard the individual sentences of three years' imprisonment imposed on charges 3, 4, 6 and 8 as falling at the lower end of the range of sentences that were reasonably open to the sentencing judge. It may be, as this Court stated in DPP v DJ, that there is a serious question about whether current sentencing practices for the offence were adequate, but on this appeal, the Director did not seek to show that circumstances existed which made it appropriate to challenge current sentencing practices for incest.[18] It may be that there has been an increased prevalence of the offence, changed community expectations, or a more informed understanding of the impact of the offence upon victims. If such circumstances were established, a review of current sentencing practice would be warranted, subject to what was said in Werry. However, as we have said, the Director did not challenge current sentencing practices. Moreover, the Director's grounds of appeal related to the total effective sentence, rather than the individual sentences imposed.

37 We were initially concerned that in making the orders for cumulation, the judge may have given insufficient weight to the fact that the respondent fell to be sentenced as a serious sexual offender and hence that the presumption of cumulation in s 6E of the Sentencing Act 1991 applied. In their joint judgment in RH McL v The Queen,[19] McHugh Gummow and Hayne JJ said that it was important that judges did not undermine the policy expressed in serious sexual offender provisions by compressing sentences. The objective of legislation requiring sentences imposed on serious sexual offenders to be served cumulatively rather than concurrently 'would be compromised and probably defeated in most cases if the ordinary application of the totality principle'[20] permitted departure from the cumulation presumption. Thus the serious sexual offender provisions qualify the totality principle in the sense that the sentencing judge cannot rely on totality in a way which undermines the legislative policy in s 6E.[21]

38 In R v Mantini,[22] Callaway JA said that a statutory presumption in favour of cumulation required a good reason to direct otherwise. However, '[r]easons do not have to be given solely because such a direction is given or such an order is made'.[23]

39 In our view, it will ordinarily be preferable for a sentencing judge to explain why he or she considers it is appropriate to depart from the presumption of cumulation which arises under s 6E. In this case, the two and a half year period of cumulation was explicable by the fact that some of the charges occurred at the same time and that the offending, appalling as it was, took place over a relatively short period. We note also that his Honour held that it was not necessary to impose a sentence longer than that proportionate to the gravity of the offence, in order to give effect to the principle in s 6D(a) of the Sentencing Act 1991 that the protection of the community is the primary purpose for which the sentence on the respondent must be imposed.

40 Having taken account of the total effective sentences imposed in the other incest cases on which the Director relied,[24] we are not satisfied that the total effective sentence imposed in this case was manifestly inadequate.

41 It is trite law that the ground of manifest inadequacy is difficult to make out ― the inadequacy of the sentence must be 'clear and egregious'.[25] The Crown has not persuaded us that this is the case.

[1] DPP v [CJA] (Unreported, County Court of Victoria, 30 April 2012, Judge Allen) ('Reasons') [3].

[6] Particular reliance was placed on the tables of sentences in DPP v DJ [2011] VSCA 250; (2011) 211 A Crim R 367.

[12] [2011] VSCA 250; (2011) 211 A Crim R 367.

[13] These were DPP v BGJ [2007] VSCA 64; (2007) 171 A Crim R 74; DPP v BDJ [2009] VSCA 298; CF v The Queen [2010] VSCA 275; GEM v The Queen [2010] VSCA 168; OAA v The Queen [2010] VSCA 155; RSJ v The Queen [2012] VSCA 148.

[14] DPP v BGJ (2007) 1 A Crim R 74; RSJ v The Queen [2012] VSCA 148.

[16] Sentencing Act 1991, s 6B, definition of 'sexual offence' and of 'serious sexual offender'; Schedule 1, clause 1(a)(iv)

[17] [2011] VSCA 250; (2011) 211 A Crim R 367. See also BM v The Queen [2013] VSCA 3.

[18] See DPP v Werry [2012] VSCA 208 [63] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA) ('Werry') applying Ashdown v The Queen [2011] VSCA 408 [180]-[184] (Redlich JA with whom Maxwell P and Ashley JA agreed).

[19] [2000] HCA 46; (2000) 203 CLR 452.

[21] Compare the approach taken with regard to s 16(3B) which requires cumulation of sentences imposed for offences occurring while an offender was on parole, on the sentence which the offender is required to serve for that breach except in 'exceptional circumstances' (DPP v Johnston (2011) 213 A Crim R 262 [65]−[73]), although s 6E does not require exceptional circumstances for departure from the cumulation presumption.

[22] [1998] 3 VR 340.

[24] See also BM v The Queen [2013] VSCA 3 (although the offence in that case was 'maintaining a sexual relationship').

[25] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538.