DPP v C P [2008] VSCA 215

1 On 13 March 2008 the respondent pleaded guilty in the County Court at Melbourne to six counts of indecent assault. The charges were brought pursuant to s 44(1) of the Crimes Act 1958, as the section then stood. Each offence carried a maximum penalty of five years' imprisonment.

3 The total effective sentence was 27 months' imprisonment. The sentencing judge directed that the whole of that sentence be suspended for a period of three years.

4 The Director of Public Prosecutions has appealed against the individual sentences imposed on counts 1 to 5 and the decision to wholly suspend them. He also challenges the decision to impose a community based order in respect of count 6.

5 The circumstances surrounding these offences may be briefly stated. They were committed between late December 1984 and approximately March 1985. The respondent was then aged 27. The victims named in counts 1 to 5, RB and VB, were the respondent's two nieces, their mother being the respondent's sister. They were aged respectively 12 and 10. Count 6 involved the respondent's daughter who was, at the relevant time, about 18 months of age.

6 The respondent's sister, and her four children, moved into the respondent's house on Boxing Day 1984. After about a week, his sister moved out. She left her two daughters, the victims of these offences, in the care of the respondent until March 1985, at which time they moved into rental accommodation with their mother.

7 Counts 1 to 4 related to RB. The offending in relation to that count took place while the respondent and his wife were giving a dinner party. The respondent went into RB's bedroom, leaned over, and kissed her. Subsequently, when everyone had gone home, he returned to her room, performed oral sex upon her, and digitally penetrated her.

8 Count 2 involved an incident in the respondent's study when the two were alone at home. He undressed both RB and himself, kissed her, and rubbed his penis against her vagina.

9 Count 3 again involved the respondent in performing oral sex on RB, but this time attempting to place his penis into her vagina. He said that he desisted only when he saw the look of fear on her face.

10 Count 4 arose in relation to an occasion when RB had just had a shower. The respondent gave her a bathrobe to wear and took her for a drive. He then performed oral sex on her.

11 Count 5 was described as a 'rolled-up' count encompassing a number of acts involving VB. These included repeated touching of her vagina, generally on the outside of her clothing.

12 Count 6 occurred when the respondent was changing his daughter's nappy. On that occasion, he licked her vagina.

13 In his reasons for sentence, the sentencing judge characterised the facts in this case as 'very serious and most disturbing'. He described the respondent's behaviour as 'completely unacceptable according to any standard of civilised living'. He pointed to the gross breach of trust involved in these offences, their mother having left two young and extremely vulnerable children in his care.

14 The sentencing judge noted that each of the respondent's nieces had provided a detailed victim impact statement. It was obvious that they had suffered greatly as a result of his actions. RB had undergone psychiatric treatment for nearly 20 years by reason of what the respondent had done to her. VB described the enormous pain and anguish that she had experienced over that time.

15 The respondent's daughter had been offered the opportunity to make a victim impact statement, but had chosen not to do so. It appeared that she had forgiven her father, and expressed a desire to maintain a relationship with him.

16 His Honour observed that there were a significant number of mitigating factors to be taken into account. The respondent had pleaded guilty and thereby spared the victims from having to relive their experiences in court. The community had been saved the time and cost of a trial. The plea of guilty had been offered at an early stage. The respondent had made full admissions to the police. Indeed, but for those admissions, the offence against his daughter would not have come to light. It was scarcely surprising, therefore, that his Honour found that there was genuine remorse.

17 The respondent was also able to call in aid some powerful evidence relating to his personal circumstances. In particular, Mr David Chong, a psychologist specialising in the treatment of sexual offenders who had been treating the respondent for some time, gave evidence on the plea that greatly impressed the sentencing judge. Mr Chong had initially told the respondent that he did not normally go to court or give evidence on behalf of his patients. However, so strong had been the respondent's desire to understand why he had acted as he did, and so powerful had been his commitment to treatment, that Mr Chong had elected to give evidence on his behalf.

18 Mr Chong said that, in his opinion, the respondent had demonstrated 'significant victim empathy and expressed genuine remorse' regarding his actions. He believed that the respondent had strong prospects of rehabilitation. Indeed, his evidence was that never, in his 23 years' experience, had he seen anyone as committed to rehabilitation or as clear about his responsibility for his actions.

19 In a supplementary report Mr Chong outlined the respondent's history in some detail. In his formative years, the respondent had been the victim of sexual abuse. He had been indecently assaulted by his sister and by an older man who was a family friend. Put simply, he had been brought up within a family environment that was largely dysfunctional.

20 The sentencing judge noted that the respondent had no prior convictions. He also noted that there was a great deal of evidence from a wide range of sources to the effect that the respondent had lived a good life and was of good character.

21 The respondent's partner gave evidence on the plea. She was described by the sentencing judge as a woman of obvious intelligence and as having a 'full understanding' of the crimes he had committed. Notwithstanding those matters, she was committed to the relationship and totally supportive of him.

22 The sentencing judge found that, since the offending, the respondent had turned his life around. At one time he had been a person without a moral compass, but that no longer was the case. Importantly, he had not sought to minimise or excuse his actions.

23 His Honour said that he was well aware of the fact that an important consideration in sentencing the respondent had to be the protection of the community. He understood that he was empowered, in order to achieve that purpose, to impose a sentence longer than one that would be proportionate to the gravity of the offence. He declined to impose such a sentence.

24 The sentencing judge recognised that general deterrence was of particular importance in this case. That was not true of specific deterrence, which was not really an issue. He said that he bore in mind that these offences occurred 'over 30 years ago'. In fact, of course, his Honour was in error. The offences were committed some 23 years ago. Nothing turns upon that error.

25 Finally, his Honour discussed various authorities to which he had been referred.[1]

26 The sentencing judge noted the Crown's submission that nothing less than an immediate and substantial custodial sentence was warranted. He rejected that submission. In his Honour's view, the mitigating factors present in this case were so powerful as to justify taking the unusual course of suspending the respondent's sentence in whole. What influenced his Honour was not merely the fact that the offending occurred many years previously, though that was plainly a relevant matter. It was really the extraordinary steps that the respondent had taken towards his rehabilitation.

27 The sentencing judge referred to Director of Public Prosecutions v Buhagiar and Heathcote.[2] In that case, Batt and Buchanan JJA said:

A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending ... In deciding whether to suspend in whole or in part a term of imprisonment, a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done ... .[3]

Moreover, it is wrong to assume that a sentence of imprisonment, albeit wholly suspended, does not play a role in deterring others: Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601 at 607-8 and the cases there cited.[4]

29 The sentencing judge then imposed the sentences earlier described, and wholly suspended those in relation to counts 1 to 5. His Honour noted that by reason of those sentences, the respondent became a registrable sex offender under the Sex Offenders Registration Act 2004, and that he would remain subject to the requirements of that Act for the rest of his life.

30 The principles applicable to Crown appeals are well settled. They are helpfully set out in the judgment of Redlich JA (with whom Chernov and Vincent JJA relevantly agreed) in DPP v Bright.[5]

31 As Redlich JA observed, an appeal should not be brought unless the sentence reveals such 'manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle'.[6] However, manifest inadequacy will not of itself be sufficient to warrant appellate intervention. Something more is required to ensure that the prosecution of appeals does not unduly circumscribe the broad sentencing discretion conferred on judges. The inadequacy of the sentence must be 'clear and egregious'.[7] The sentence must be so disproportionate to the seriousness of the crime as to 'shock the public conscience'[8] and 'undermine public confidence in the ability of the Courts to play their part in deterring the commission of crimes'.[9]

32 As the law presently stands, the principle of double-jeopardy must be taken into account when determining whether this Court should exercise its discretion to allow the Crown appeal. That principle must also be taken into account when fixing any new sentence.

33 In addition, it is generally accepted that the Court should be slow to require an offender who has been given the benefit of a wholly suspended sentence to go into custody. Counsel for the appellant freely conceded the operation of this additional limiting principle.

34 When one adds to these considerations the powerful mitigating factors present in this case, and the obvious care with which the sentencing judge approached the task with which he was confronted, it is easily understood that this case requires the most anxious consideration.

35 However, having carefully considered the matters raised before us, we have concluded that the appeal should succeed.

36 The gravity of these offences need hardly be emphasised. They were not indecent assaults of the 'touching' variety. In several cases, they involved the respondent in engaging in oral sex. Count 1 involved digital penetration and the conduct in question in count 3 came perilously close to attempted rape.

37 The aggravating features of this case were, as the sentencing judge correctly noted, the age of the young girls, the breach of trust involved, and the effect upon the lives of the two of them.

38 Of course, many years had elapsed between the commission of these offences, and the sentencing of the respondent. That was obviously a factor to be taken into account. However, his Honour was obliged to bear in mind the observations by Vincent JA in Director of Public Prosecutions v Toomey[10] regarding such delay. As his Honour said in that case, it is often true that the commission of offences of this nature will not be revealed for years. Their eventual disclosure can be extremely difficult and painful for those who have been offended against and their families. If the system cannot be seen to respond appropriately to such cases, then its operation will discourage victims from coming forward and indirectly contribute to the concealment of offences.[11]

39 In approaching the matter of delay in this way, we do not ignore the obvious good sense in what was said by Callaway JA in R v MWH.[12] His Honour pointed out that it was the effects of delay that were important for sentencing. Some of those effects, such as the prisoner's age or ill health, may be of particular significance having regard to matters of special deterrence. So too may be considerations of fairness, especially where the delay is in part attributable to the prosecutor. Neither of those considerations is present here.

40 What is plainly important, so far as delay is concerned, is rehabilitation. That was recognised by the sentencing judge, and was a matter to which he gave great weight in this case. He did not err in doing so. The error lay in allowing the obvious rehabilitation that had taken place to override completely all other sentencing considerations, including, in particular, the need for general deterrence.

41 There was also a need for his Honour to have had regard to what Vincent JA described in Director of Public Prosecutions v DJK[13] as 'social rehabilitation'. Vincent JA said 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. Any failure on the part of the Courts to punish adequately those who are involved in the sexual abuse of children is likely to exacerbate the harm done by that conduct.

42 In our view, the sentence imposed in this case was manifestly inadequate. Notwithstanding the powerful mitigating factors that were so clearly brought out, a substantial custodial term was warranted. We think that the decision to wholly suspend the sentence was so disproportionate to the seriousness of the offences that it would have shocked the public conscience.

43 Senior counsel for the respondent conceded that a wholly suspended sentence for offences of this character had indeed been merciful. She submitted, however, that the material amply justified a merciful sentence. That may be true, but in this case, there was too merciful an outcome. Nothing less than an immediate custodial sentence was warranted.

44 Although the individual sentences imposed on counts 1 to 5 seem to us to have been very lenient, we would not on that account alone interfere with them. Nor would we interfere with the orders made as to cumulation.

45 We do, however, consider that it was not properly open to the sentencing judge to suspend the operation of these sentences in their entirety. Constrained as we are by the principle of double jeopardy and the other limiting factors to which we have referred, we would suspend all but 12 months of the 27-month sentence imposed on counts 1 to 5. We should emphasise that we regard even that as a merciful sentence.

46 The respondent has performed his community service pursuant to count 6. He should not be required to be further punished for his conduct in that regard.

[1] These included DPP v Toomey (2006) VSCA 90, a case in which the relevance of the long delay in bringing offences such as these to trial, for the purposes of sentencing, was considered.

[2] [1998] 4 VR 540.

[5] [2006] VSCA 147; (2006) 163 A Crim R 538.

[6] Id 542, citing R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522.

[7] Id 542, citing Director of Public Prosecutions (Vic) v Oversby [2004] VSCA 208.

[8] Id 543, citing R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522; R v Osenkowski (1982) 30 SASR 212, 213.

[9] Id, citing Everett v R [1994] HCA 49; (1994) 181 CLR 295, 306 (McHugh J).

[10] [2006] VSCA 90.

[11] Id, [23]-[24]. See also R v DD (No 2) [2008] VSCA 15.

[12] [2001] VSCA 196.

[13] (2003) VSCA 109.