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[2017] VSCA 8
Court of Appeal (Vic)
2017-02-08
Mr J, Weinberg JA, Whelan JA, Kyrou JA
Original judgment source is linked above.
[2016] VCC 661 (Judge Cohen)
CRIMINAL LAW - Sentence - Crown appeal - One charge of rape, two charges of attempted rape and two charges of indecent act with child under 16 - Complainant was respondent's step-daughter - Offending occurred over 12 month period when complainant aged 11 or 12 - Respondent sentenced to 720 days' imprisonment combined with three year Community Correction Order - Whether sentence manifestly inadequate - Whether sentencing judge significantly understated objective gravity of offending - Whether excessive weight given to mitigating factors - Crown appeal allowed - Respondent resentenced to total effective sentence of six years' imprisonment with non-parole period of four years.
1 The respondent, now aged 39, stood trial in the County Court at Warrnambool on two charges of attempted rape (charges 1 and 3), one charge of rape (charge 6) and two charges of indecent act with a child under the age of 16 (charges 5 and 8).
Attempted Rape [Crimes Act 1958 ss 38(1) & 321M]
Indecent act with child under 16 [Crimes Act 1958 s 47(1)]
Indecent act with child under 16 [Crimes Act 1958 s 47(1)]
720 days' imprisonment and 3 year Community Correction Order
Other Orders: CCO to include 100 hours of unpaid community work, supervision and treatment and rehabilitation.
Life reporting under the Sex Offenders Registration Act 2004.
3 The complainant was the respondent's step-daughter. She was aged between 11 and 12 at the time of the offending. The respondent was then aged between 28 and 29.
4 The offences were committed at various times between 1 August 2006 and 31 July 2007. The respondent was, at that stage, living with his wife and their daughter (the complainant's half-sister), as well as the complainant, on the family's dairy farm, which was located in Western Victoria. The respondent and the complainant's mother had married in 2000.
5 The offending arose out of four separate incidents. These all took place in the family home. The exact dates, and length of time between the incidents, could not be precisely ascertained.
6 Both instances of attempted rape, charges 1 and 3, occurred when the respondent's wife was out of the house. However, on those occasions, his natural daughter was at home.
7 According to the complainant, the respondent had asked her, on each occasion, to wake him from an afternoon nap. Both times, the respondent was naked in bed when she entered his bedroom. The complainant attempted to wake him by calling out. When he did not budge, she approached the bed. At that stage, the respondent grabbed her, and pulled her down onto the bed. He forcibly lowered her pants and placed his hand between her thighs, attempting unsuccessfully, in the face of her resistance, to penetrate her digitally.
8 On the second of these two occasions, after the respondent had unsuccessfully sought to penetrate her, he seized the complainant's hand and placed it on to his erect penis. He then moved it up and down, and said to her that she was 'better than [her] mother'. This conduct gave rise to the charge of indecent act with a child under 16, charge 5.
9 On both of these occasions, the respondent threatened to hurt the complainant if she told anyone about what he had done.
10 On another occasion, the respondent once again asked the complainant to wake him after a nap. This time, when she approached him in his bedroom, he pulled her down and pinned her to the bed. He took some lubricant from a bedside table and rubbed it on to his fingers. While holding her down, he undressed her and wiped his hands across her bare chest and stomach. He then digitally penetrated her, inserting his finger into her vagina several times. He thereby committed the offence of rape, the subject of charge 6.
11 On yet another occasion, the complainant awoke one night to find the respondent in her bedroom, lying behind her in her bed. He had pulled her pyjama pants down to her knees, and was pressing his erect penis between her thighs. This conduct gave rise to the charge of indecent act with a child under 16, charge 8.
12 Initially, the complainant said nothing to anyone about what her step-father had done. However, in 2009, she complained to a family friend, but did not take the matter any further. Eventually, in 2011, she informed her school counsellor, and subsequently her mother. The matter was then reported to police, who conducted an investigation.
13 In April 2012, the complainant told police that she no longer wished to pursue the allegations against her step-father. However, she subsequently changed her mind, and in June 2013, told police that she now wanted the respondent to be charged.
14 Eventually, on 19 February 2014, the respondent was arrested and interviewed in relation to these matters. He denied the complainant's allegations against him. He maintained his denials thereafter, and still does.
15 The Crown appeals against the 720 day sentence and three year Community Correction Order ('CCO') imposed below. It contends that the sentence is manifestly inadequate. It relies upon a single ground of appeal, which is in the following terms:
Particulars
In imposing the sentence of 720 days' imprisonment and a 3 year Community Corrections Order as set out above in this Notice of Appeal, the Learned Sentencing Judge -
(a) failed to have sufficient regard to the maximum penalties prescribed for the offences;
(b) failed properly to reflect the objective gravity of the offending;
(c) failed sufficiently to punish the offender to an extent which is just in all the circumstances;
(d) failed sufficiently to manifest the denunciation by the court of the type of conduct in which the offender engaged;
(e) failed to give sufficient weight to the principle of general deterrence;
(f) failed to have sufficient regard to the impact of the offending upon the victim;
(g) mischaracterised the gravity of the offending;
(h) gave excessive weight to factors in mitigation including the application of principles enunciated in Verdins with the result that the sentence is manifestly inadequate.
16 After a lengthy plea, which extended over several days, the judge delivered detailed reasons for sentence.
17 In her sentencing remarks, the judge first noted the maximum penalty for each of the offences of which the respondent had been convicted. She then outlined, in broad terms, the circumstances surrounding the commission of each of those offences. She noted that these matters had not come to light until 2011, a number of years after the offending took place. That was during a period when the respondent and his wife were having significant marital issues.
18 Her Honour observed, in unimpeachable terms, by way of general overview:
Offences of this type are heard repeatedly in this court but that does not make them any more acceptable to the community in general, nor under the law. Sexual offending against children is strongly condemned by the community and when it occurs within a family setting, in particular a family home, there is the additional aspect of the conduct being a breach of trust towards a child under the adult's supervision and protection.[2]
19 The judge next referred to the various Victim Impact Statements that had been filed. She noted that, unsurprisingly, the respondent's conduct had had a profound and devastating effect upon the complainant. It had also been extremely damaging so far as his former wife, and their daughter were concerned.
20 The judge then referred to the respondent's personal circumstances. She noted that he had grown up on a dairy farm. He and his wife had ultimately purchased that farm from his mother.
21 Tragically, the respondent's father had committed suicide in 2006, at a time when he was suffering from chronic depression. It seemed likely that the father's suicide had resulted in the respondent suffering from serious bouts of depression himself.
22 The judge adverted to the fact that the respondent's relationship with his wife had deteriorated by about 2011, in part because the dairy farm was under serious financial strain as a result of the collapse of milk prices. Finally, in 2012, the respondent and his wife separated once the complainant's allegations came to light.
23 The judge commented upon the fact that there were ongoing financial difficulties even after that separation. There were problems in selling the farm, which was heavily mortgaged. Her Honour noted that the situation was made worse by the fact that the respondent had, by then, become the main source of financial support for his mother.
24 Critically, for present purposes, the judge referred to a psychiatric report by Dr Lester Walton, dated 12 April 2016. Dr Walton stated that it was likely that the respondent had been suffering from depression at the time of the offending. He characterised an attempt by the respondent to kill himself in December 2011, as having been 'serious'.
25 The judge accepted, on the basis of Dr Walton's evidence, that it was likely that the respondent had been suffering from depression at the time these offences were committed. That would accord with the respondent's father's suicide. She also accepted that, at the time the respondent came to be sentenced, he was suffering from what Dr Walton described as 'a chronic major depressive disorder'. It was his opinion that the respondent urgently needed to receive treatment for that condition. Finally, she accepted that, by reason of that disorder, the respondent would find a term of imprisonment to be additionally burdensome.
26 It is fair to say that the judge qualified these findings by noting that Dr Walton had acknowledged, in his evidence before her, that there was no clear causal connection between the respondent's likely depression in 2006-7, and his offending. Dr Walton accepted that it was possible, and perhaps even likely, that his condition at that time may, to some degree, have contributed to that offending. However, he could not affirmatively say that there did exist a causal connection of that kind given the respondent's continuing denials that any offending had taken place.
27 The judge summarised Dr Walton's evidence regarding the issue of causal connection as follows:
... it is well recognised that persons suffering significant depression are prone to exercising poor social judgment, as well as engaging in what ultimately is self-destructive behaviour. [Dr Walton's] hypothesis was that if [the respondent was] depressed in the period after [his] father's death, as he is satisfied was likely, symptoms such as lowered mood, feelings of guilt, sense of hopelessness, and possibly impaired cognitive function, may have led to a sense of recklessness and so these consequences could have contributed to [him] committing these offences.[3]
28 The judge noted that Dr Walton had further said that:
... he thought that indirect connection or contribution to the offending from [the respondent's] mental disorder at the time was probable. He said this conclusion was that it was probable but 'on a fairly fine line'.[4]
29 The judge ultimately found that it was likely that the respondent had been suffering from 'stress and depressive symptoms' in the period immediately after his father's suicide. As a result, she considered that it was more likely than not that this condition would have impaired his ability to think clearly about 'many matters that might have arisen, including impulsive feelings'. To the extent, therefore, that the respondent may have been suffering a mood disorder at the time of the offending, her Honour accepted that the application of general deterrence should be reduced in importance as a sentencing factor, although, as she put it, 'not very substantially reduced'.
30 In the end, however, notwithstanding Dr Walton's hypothesising as to the possible link between the respondent's depression and his offending behaviour, the judge concluded that she was not satisfied that there was sufficient evidence of any such link, at least for the purposes of the first of the Verdins principles.[5]
31 The judge made plain, however, that based upon Dr Walton's evidence she would give effect to at least the fifth and sixth of the Verdins principles. She said that she was satisfied that the respondent's chronic major depressive disorder would make imprisonment significantly more burdensome for him than for anyone not suffering from that condition.
32 Having next observed that the respondent had no relevant prior convictions (although he had a number of convictions for dishonesty and one for intentionally or recklessly causing injury), and having noted that he had worked hard all his life, the judge commented specifically upon the fact that there was no suggestion that he had ever behaved inappropriately, in a sexual manner, towards his natural daughter.
33 Her Honour, at this stage, summarised the submissions put before her by counsel on behalf of the respondent:
I have been urged to impose a non-custodial sentence on you, whether through a Community Correction Order or even a wholly suspended sentence. The prosecution submitted a suspended sentence would be open given the age of these offences and the power to impose suspended sentences for such offending having not been abolished until a date which falls within the alleged period of offending. It is conceded that the prosecution cannot prove beyond reasonable doubt that this offending occurred after that date, so it is conceded that technically a suspended sentence would be available.
I also obtained a pre-sentence report which has assessed you as suitable for a Community Correction Order and made recommendations as to conditions. It assesses you as being of a medium risk of re-offending using the tool utilised by Community Correction Services.
I obtained that report notwithstanding that my impression of the circumstances of your offending, and general circumstances, was that nothing short of a term of imprisonment of considerably longer than two years, was required to satisfy sentencing requirements, meaning it could not be combined with a CCO. I still consider that a wholly non-custodial sentence could not sufficiently achieve the need to convey the community's denunciation of sexual offending against children, to sufficiently punish offending of this nature, nor of conveying the message of deterrence, both to you and others.
However, in light of all of the circumstances, including that I allow some moderation of the application of general deterrence in your circumstances as already explained, and as I consider that for a person in your position a moderate period of imprisonment would achieve the sentencing purposes I have outlined if followed by suitable supervision and rehabilitative programs, I have reached the conclusion that a sufficient term of imprisonment could be imposed and followed by a Community Correction Order of sufficient duration, and with appropriate conditions, such that sentencing requirements could be achieved.
I do that in light of my assessment that the offences, although serious for all of the reasons that I have already explained, are not to be categorised at even as high as moderate on the scale of possible offences of this nature in all of the circumstances that occurred. In particular they were of short duration, they were not accompanied by physical violence, let alone the inflicting of any injury, nor of significant humiliation, torture or the other much more reprehensible aspects that unfortunately are often seen to accompany offences in this field or falling under the very provisions that these offences are, namely of attempted rape, of rape or of indecent act with a child under 16.
In reaching the conclusion that a term of imprisonment followed by a CCO would be sufficient, I have of course invoked the wider use of CCOs described by the Court of Appeal in Boulton's case.[6]
34 Even at this stage, there are several points to note regarding these passages in her Honour's sentencing remarks.
35 First, the submission advanced on behalf of the respondent that there should be a non-custodial sentence for offending of this gravity can only be described as breathtaking in its audacity.
36 Secondly, the reference by her Honour to the prosecution having submitted that a 'suspended sentence would be open' must be understood in context. That submission was put forward only to make it clear to the judge that, by reason of the age of the offences, a suspended sentence would technically be available as a sentencing option. A careful reading of the transcript reveals that the prosecutor made it perfectly clear that, when he spoke of a suspended sentence being 'open', he was by no means conceding that such a sentence would be within range. Indeed, the entire tenor of his submission was to the contrary.
37 Thirdly, her Honour referred to her decision, during the course of the sentencing process, to obtain a report from Corrections as to the respondent's suitability for a CCO. She explained that she had done so notwithstanding her belief that nothing short of a term of imprisonment of 'considerably longer' than two years would suffice. That particular observation might be thought to sit uncomfortably with her ultimate finding that a sentence of ten days less than two years' imprisonment, coupled with a three year CCO, was warranted.
38 Fourthly, the judge's assessment that the respondent's offences 'although serious' were 'not to be categorised at even as high as moderate on the scale of possible offences of this nature' strikes one immediately as erroneous. That is so notwithstanding the factors that her Honour identified as justifying that conclusion. In fact, it is difficult to see how offending of this gravity could possibly be described as 'less than moderate' on the scale of offending of this kind.
39 Finally, the judge prefaced her actual sentencing orders by stating:
I am of the view that the sentence in combination that I will impose will involve for you a significant and presumably very salutary period in prison, followed by supervision, remedial programs and especially assessment for a suitable sex offender program after your release. I have also decided that it is necessary to impose a moderate amount of unpaid community work as further penalty, even on top of the period of imprisonment that you will serve, having regard to the nature of the offences involved. That however will not be so high an amount of unpaid community work as to prevent you from gaining and continuing in farm work on your release from prison, especially as it will be available to be completed over the extended period of the CCO.[7]
40 Not surprisingly, the Director's written submissions before this Court focused heavily upon the judge's characterisation of the offending as 'not even as high as moderate'. It was said that this description failed entirely to recognise the objective gravity of what the respondent had done, when regard was had, inter alia, to the following factors:
41 The Director took issue, in particular, with the judge's characterisation of the offending as less than of 'moderate' seriousness. Indeed, he submitted that this offending should be viewed as very serious indeed.
42 The Director next submitted that the judge had failed to give proper weight to the maximum sentence prescribed for each of these offences. The total term of imprisonment imposed, 720 days, was said to be only 7.8 percent of the maximum penalty for a single charge of rape.
43 In broad terms, the Director submitted that the sentence imposed did not adequately reflect the principles of general deterrence, denunciation and just punishment. Although the judge had said that the offending called for a sentence 'to unequivocally condemn such conduct, impose just punishment and stand as a general deterrence ... and send the message that it will attract a severe penalty',[8] the sentence actually imposed did not achieve any of these objects.
44 With regard to Dr Walton's report, the Director submitted that he had very fairly acknowledged the limitations of his evidence. He had accepted that his diagnosis of the respondent's condition in 2006 and 2007 had been somewhat speculative, as had been his suggestion that there may have been some connection between the respondent's depressive symptoms at the time, and the commission of the offences themselves.
45 Accordingly, the Director submitted that her Honour appeared to have given too much weight to Dr Walton's evidence, at least as to the respondent's condition in 2006 and 2007.
46 It should be noted that, despite her Honour's findings as to the respondent's condition at that time, she said that his depression did not substantially reduce the weight to be given to general deterrence. Yet, despite that entirely justifiable observation, the Director submitted that, plainly, the judge must have given very considerable weight to that factor, having regard to the sentence actually imposed.
47 The Director referred to the Victim Impact Statements tendered on the plea, which indicated the 'devastating consequences' the extended abuse had upon the complainant, as well as upon other members of the family.
48 Finally, the Director submitted that the total effective sentence of 720 days' imprisonment appeared to be 'contrived' so as to comply with s 44 of the Sentencing Act 1991.[9] This was particularly so because although the two attempted rapes and the rape itself occurred in almost parallel circumstances, the attempted rapes were considered not to warrant even a short custodial sentence. The reasons for that remain something of a mystery.
49 The respondent submitted that, on a Director's appeal, the appellant must demonstrate that the sentence was wholly outside the range of sentences reasonably available, and that this was a stringent test, not easily satisfied.
50 The respondent next submitted that the judge's sentencing remarks showed that her Honour had appropriately balanced and synthesised all relevant sentencing principles. In particular, she had given proper weight to the various matters of mitigation upon which the respondent had relied.
51 More particularly, the respondent submitted that the judge fully appreciated the gravity of the offending, and had properly characterised it as 'serious'. When she went on to say that they were 'not as high as moderate on the scale of possible offences of this nature', that statement had to be understood in context, and should not be read literally. It may be that what her Honour intended to convey was nothing more than that this case, serious though it was, lacked a number of features sometimes associated with offending of this kind that would have made it more culpable. For example, her Honour noted that the respondent had submitted that each of the four offences was itself of short duration, and that was plainly true. Although a moderate degree of force had been used, none of these offences was accompanied by the kind of physical violence that sometimes attends their commission. Nothing done by the respondent involved the infliction of physical, as distinct from psychological, injury upon the complainant. Nor did his actions give rise to significant humiliation, still less anything that could be described as 'torture'.
52 Of course, the absence of these aggravating factors did not constitute mitigation, as counsel correctly acknowledged. Nonetheless, their very absence was said to justify, and explain, her Honour's description of the offending as something approaching, but less than, moderate on the scale of offences of this kind.
53 The respondent next submitted that Dr Walton's evidence, none of which was seriously challenged either below or before this Court, was a critical matter when it came to sentence. That evidence, taken alone, justified the leniency that her Honour had extended by her sentence. It was submitted that Dr Walton's opinion justified the judge's finding that Verdins principles three (moderation of general deterrence), five (imprisonment to be more burdensome) and six (adverse effect of imprisonment upon mental health) were applicable.
54 The respondent noted that the prosecutor below had not made any submissions regarding violence having been a central feature of the offending. The only aggravating features upon which he had relied were the breach of trust, the extended period over which the offending had occurred, the complainant's very young age and obvious vulnerability.
55 In addition, the respondent had shown a lack of remorse which, although not an aggravating factor, denied him the right to call in aid a circumstance of mitigation.
56 Finally, the respondent submitted that the judge, in her comprehensive sentencing remarks, had given proper consideration to the need to achieve 'just punishment'. In that regard, the respondent drew attention to the following passages in her Honour's reasons for sentence:
Offences in these circumstances call for sentences to unequivocally condemn such conduct, impose just punishment and stand as general deterrence to other people who might be tempted to engage in similar conduct and send the message that it will attract severe penalty. Offences of this nature also often call for protection of the public, although as I shall explain I do not regard that as of high significance in this case.[10]
...
I obtained that [Corrections] report notwithstanding that my impression of the circumstances of your offending, and general circumstances, was that nothing short of a term of imprisonment of considerably longer than two years, was required to satisfy sentencing requirements, meaning it could not be combined with a CCO. I still consider that a wholly non-custodial sentence could not sufficiently achieve the need to convey the community's denunciation of sexual offending against children, to sufficiently punish offending of this nature, nor of conveying the message of deterrence, both to you and others.[11]
57 Overall, it was submitted that the judge, although fully cognisant of the gravity of the respondent's offending, had been entitled to moderate the sentence that she imposed for the reasons that she gave. In particular, her Honour said:
However, in light of all of the circumstances, including that I allow some moderation of the application of general deterrence in your circumstances as already explained, and as I consider that for a person in your position a moderate period of imprisonment would achieve the sentencing purposes I have outlined if followed by suitable supervision and rehabilitative programs, I have reached the conclusion that a sufficient term of imprisonment could be imposed and followed by a Community Corrections Order of sufficient duration, and with appropriate conditions, such that sentencing requirements could be achieved.[12]
58 The first matter to note is that the respondent was charged with attempted rape, and rape itself, rather than the offence of incest. The reason for that seems to have been that the Director took the view that rape was the more appropriate charge in circumstances where the complainant's evidence was that she resisted throughout.
59 Nonetheless, the respondent's offending, as found by the jury, plainly could have been charged as incest.[13] The Director submitted that the fact that the complainant was the respondent's step-daughter was a relevant factor in assessing the gravity of his offending, on the charge of rape. He submitted that, in a case such as the present, a number of the principles laid down by this Court regarding sentencing for incest could properly be applied, by analogy, to the respondent's offending. Those principles are well established.
A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim. An even more alarming revelation is the frequent failure in these cases of support for the victim from other members of the family.[14]
61 In recent years, charges of incest have become ever more frequent than in the past. Certainly, this Court deals with that offence on a regular basis. Of course, that does not mean that the offence itself has become more prevalent. It does, however, mean that there is now a significant body of case law regarding both proper sentencing principles for that offence, and tending to establish current sentencing practice.
62 It is fair to say that, despite the maximum sentence for incest having been increased in 1997 to 25 years' imprisonment, equal to that for rape, there has been little discernible difference in the range of sentences generally imposed for that offence.
63 There are some examples of very heavy sentences having been imposed, and upheld on appeal. In Cotton v The Queen,[15] the offender was convicted following a trial on eight charges of incest, and two of indecent act with a child under 16. The victim was his step-daughter who was aged 13 at the time. The offending extended over a period of about a year. Force was used to restrain the victim, which resulted in bleeding and bruising, but no lasting physical injury. As in the present case, the victim was threatened with harm if she disclosed the offending to anyone.
64 The highest individual sentence imposed in that case was seven years, with individual sentences of six years having been imposed on the remaining charges. The total effective sentence was 13 years, with a non-parole period of 10 years. An appeal against sentence was dismissed.
65 In Director of Public Prosecutions v Dalgliesh,[16] the respondent pleaded guilty in the County Court to charges of incest, indecent assault and sexual penetration of a child under the age of 16. The offences were committed against his partner's two daughters. The offending that was the subject of one of the charges resulted in the victim falling pregnant. She was aged 13 at the time.
66 The total effective sentence in that case was five years and six months' imprisonment, with a non-parole period of three years. On a Director's appeal against sentence, this Court described that sentence as 'lenient', but said that it was not outside the current range.
67 Nonetheless, the Court went on to say that current sentencing practice for offences of this type should, over time, be adjusted upwards having regard to the objective gravity of such offending and the moral culpability of the offender.
68 The Director was asked, during the course of oral argument, whether he wished to advance a submission to the effect that there should be an increase, across the board, in the range of sentences imposed for offending incest of the kind with which we are concerned. He specifically declined to do so. He contented himself with submitting that this sentence was manifestly inadequate, having regard to current sentencing practice for rape.
69 If one has regard to such comparative material as is available for rape of young children (and there seems to be a paucity of case law in point) the best one can do is perhaps to start with the most recent Sentencing Snapshot for rape in this State. That Snapshot, dated June 2015, makes it clear that the median length of imprisonment for a single offence of rape during the relevant period covered was five years.[17] The most common non-parole period fixed in relation to such offending was three to four years.
70 When one considers that the Snapshot did not differentiate between child and adult victims, and when one also bears in mind that it did not distinguish between offenders who pleaded guilty, and those who stood trial, it can readily be seen that the sentence of 720 days imposed upon the respondent in relation to the single charge of rape in this case is strikingly out of kilter with current sentencing practice.
71 The fact that the complainant in the present case was a child of 11 or 12, and obviously extremely vulnerable, the enormous breach of trust involved in the offending, the complicating factor that this was not merely rape but incestuous rape, and the respondent's lack of contrition, manifested by his having stood trial and run as a defence that the victim had fabricated her evidence against him, makes it immediately apparent that this sentence was not merely lenient, but wholly outside the range.
72 Accordingly, even if one has regard only to current sentencing practice for rape, it is obvious that the sentence imposed below cannot be permitted to stand. With great respect to the judge below, who plainly approached her task conscientiously, we are compelled to the conclusion that the sentencing discretion miscarried. There being no reason why the appeal should not be allowed, we propose to resentence the respondent.
73 While it may readily be accepted that the respondent's conduct falls short of what might, until recently, have been described as within the 'worst' category of its type,[18] it seems to us to be impossible to characterise it as anything other than a serious example of a most serious offence. There were few significant mitigating factors present, save for what the judge found to be the product of the respondent's depressed condition, and the applicability of Verdins limbs three, five and six.[19]
74 We should add that, as previously indicated, this Court has on a number of occasions now expressed concern about the tendency on the part of some sentencing judges to construct total effective sentences that fall just short of two years, thereby enabling these sentences, as a matter of law, to be combined with CCOs. Without, using terms such as 'contrived', it seems to us to be quite wrong in principle to start with a term of two years' imprisonment or less in mind, and then set out to structure the sentence in such a way as to achieve that total. It was never the intention of Parliament, when it enacted s 44 of the Sentencing Act, that the sentencing exercise would be carried out in that way.[20]
75 For the reasons set out above, we would allow the Director's appeal. The sentences imposed below should be set aside. In lieu thereof, the respondent should be sentenced as follows:
• Charge 1 - Attempted Rape - 2 years' imprisonment
• Charge 3 - Attempted Rape - 2 years' imprisonment
• Charge 5 - Indecent act with child under 16 - 12 months' imprisonment
• Charge 6 - Rape - 4 years and six months' imprisonment
• Charge 8 - Indecent act with child under 16 - 12 months' imprisonment
76 The sentence of four years and six months' imprisonment on charge 6 will be the base sentence. Six months of the sentence on charge 1, six months of the sentence on charge 3 and six months of the sentence on charge 8 will be cumulative upon each other and upon the base sentence. The sentence on charge 5 will be concurrent with all other sentences.
77 That makes a total effective sentence of six years' imprisonment. We will fix a non-parole period of four years.
[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Respondent.
[2] Director of Public Prosecutions v Bryan Cooper (a pseudonym) [2016] VCC 661, [12] ('Sentencing Remarks').
[6] Sentencing Remarks, [58]-[63] (citations omitted).
[9] See, for example, Sianas v DPP [2016] VSCA 84; DPP v Basic [2016] VSCA 99; DPP (Vic) v Hudgson [2016] VSCA 254.
[13] Incest is an offence under s 44(1) of the Crimes Act 1958. It carries a maximum penalty of 25 years' imprisonment, the same maximum as that for rape under s 38 of the Act.
[14] Unreported, Supreme Court of Victoria, 8 June 1993, 4-5.
[17] Comparable cases, to the extent they can be discerned, seem to support that median figure. See, for example, Evans v The Queen [2016] VSCA 11 where, in a case not dissimilar from the present in certain key respects, the offender was sentenced to a term of four years and six months' imprisonment on a charge of rape arising out of the digital penetration of his partner's daughter, who was aged between 11 and 15 at the time. As in the present case, the offender pleaded not guilty. This Court refused an application by the offender for leave to appeal against sentence.
[18] We note that the High Court has recently deprecated the use of this notion in R v Kilic [2016] HCA 48.
[19] It is fair to say that Verdins limb five was far and away the most significant of the three limbs of Verdins that her Honour addressed.
[20] See, for example, Sianas v DPP [2016] VSCA 84; DPP v Basic [2016] VSCA 99; DPP (Vic) v Hudgson [2016] VSCA 254.
DPP
Cooper
(2007) 16 VR 269
(2015) 45 VR 341