DPP v D C R [2004] VSCA 103

Court of Appeal (Vic)|2004-06-04|Before: WINNEKE, P., ORMISTON and VINCENT, JJ.A.

CRIMINAL LAW - Sentencing - Director's appeal - Incest, gross indecency and indecent acts (22 counts over 12 year period) - Offences committed with one child, two stepchildren and one outsider, each between ages of 4 and 15 - Sentences imposed in County Court for incest ranging from 12 months to 3 years and for other offences ranging from 2 months to 10 months, with total effective sentence of 8 years and non-parole period of 6 years - Manifestly inadequate terms for all but one count, as well as for total effective sentence and minimum term - Inappropriate approach to concurrency and cumulation - Sentences (on 21 counts) increased to range of 4 years 9 months to 7 years for incest and to range of 6 months to 2 years 9 months for other offences, but with less overall cumulation leading to total effective sentence of 11½ years with non-parole period of 9 years 3 months.

The Director of Public Prosecutions has appealed on several grounds against sentences handed down in the County Court following a plea of guilty to seven counts of gross indecency with a child under the age of 16 (contrary to s.50 of the Crimes Act 1958 ("the Act") before its amendment in 1991), eight counts of committing an indecent act with a child under the age of 16 (contrary to s.47 of the Act (as amended)), six counts of incest (contrary to s.44 of the Act) and one count of committing an indecent act in the presence of a child under 16 (contrary to s.44 of the Act).

As it is preferable to set out the specific sentences imposed by the learned judge at the stage of this judgment where the details of the individual counts are described, it is sufficient at present to state the broad outcome of the sentencing hearing. On the seven counts of gross indecency[1] with some three children under the age of 16, for which a maximum penalty of three years' imprisonment was fixed before the offence was abolished in 1991, the respondent was sentenced to terms varying from two to nine months' imprisonment. On the eight counts of committing an indecent act[2] with two children under the age of 16, for which a maximum sentence of 10 years is fixed, the respondent was sentenced to terms between six and 10 months. On the one count of committing an indecent act in the presence of a (different) child aged under 16[3], for which likewise a maximum term of 10 years is fixed, the respondent was sentenced to a term of six months. Finally, on the six counts of incest[4] upon two of the children, for which at various times maximum terms of 20 and 25 years have been fixed, the respondent was sentenced on each of four counts to 12 months' imprisonment and on two counts, to which the 25 year maximum applied, to three years' imprisonment on count 13 and to 2½ years' imprisonment on count 14. So called orders for cumulation varying from three to 12 months of the sentences on nine of the counts were made upon the sentence of three years imposed on the head count 13 for incest. The total period so cumulated of five years resulted in there being a total effective sentence of eight years, in respect of which the judge directed that the respondent serve six years before becoming eligible for parole. Various incidental orders were made including a declaration that the respondent had been sentenced on counts 3 to 22 as a serious sexual offender.

When one is told that no less than nine of the counts were agreed to be representative counts, that the offending extended from about late 1987 to the end of 1999 and that they involved, with one exception, sexual mistreatment of his own daughter (one count) or his two stepdaughters (20 counts) at ages extending from four to 15 years of age, one can understand his counsel's concession at the sentencing hearing (counsel being different from counsel appearing on this appeal) that they involved "absolutely horrendous behaviour". It is clear that as a whole the respondent's conduct deserved condign punishment. Having regard to those factors alone, notwithstanding the principles of proportionality and totality, but for reasons which I will elaborate in due course, I consider that most of the individual sentences and certainly the total effective sentence and the minimum non-parole period were manifestly inadequate and require that the respondent be re-sentenced in a manner more appropriate to the seriousness of his offending, notwithstanding the various factors which have been and may properly be called in aid in his favour. I shall also turn in due course to the various grounds of appeal relied upon by the Director but it is not unreasonable to characterise them as each relying in different ways on an assertion that the sentences were manifestly inadequate.

One would prefer not to have to describe in detail the sordid events relied on by the prosecution in support of the Crown case, but unfortunately the seriousness of the offending can only be gauged by a description of what occurred. For the most part the matters charged in each count will be described in their order on the presentment but I shall deal first with count 21, the offence involving the respondent's natural daughter, since it preceded by at least one if not two to three years the first of the series of acts relied upon on the other counts which, with one exception, each involved offences against one or other of his stepdaughters.

Before that, however, some general background facts should be mentioned. The respondent was born on 16 July 1956 so that he was something over 31 at the time of the first offence and about 43 at the time of the final act relied upon. He was at the time of the first offence married to his first wife, and their child, BLR, was at the relevant time (1987-1989) between four and five years old. Not long afterwards the respondent and his first wife separated and were divorced. A short time later he came to live in a seaside suburb with CMH to whom he was later married in September 1992. CMH had two daughters from a previous marriage who lived with them both before and after their own marriage. The older, LMH, had been born on 15 February 1983 and the younger, NAH, had been born on 3 December 1984. Throughout the period it seems that the marriage of the respondent to his new wife was relatively harmonious but they were both shift workers or, at least, CMR worked at a hospital at first from 10 a.m. in the morning to about 7 p.m. at night and then later from 4.30 p.m. in the afternoon to after 9.30 p.m. at night. Consequently the respondent was ordinarily the only adult at home when the children returned from school.

Returning to count 21 which alleged an act of gross indecency with BLR, as a person under the age of 16 years, during the period 4 October 1987 to 3 October 1989. The agreed facts state that BLR was in her parents' bedroom and sitting on the respondent's lap when he unzipped his pants and made her fondle his penis, although she said that it was "almost like an anatomy lesson". For this offence, which took place when BLR was only four or five years old, the respondent was sentenced to six months' imprisonment, three months of which was made cumulative on the head sentence on count 13.

The next count in order of time was count 1 (with which it will be necessary later to compare count 15), in which again it was alleged that the respondent committed an act of gross indecency with a person under the age of 16 years, on this occasion NAH, who was at the time aged about five years. Following a joint discussion between parents and children on "the facts of life", the respondent later in the absence of his partner BLR, was asked by NAH what a "doodle" was, to which he responded by pulling down his trousers and exposing his penis to NAH, holding his penis in his hand. NAH said that no contact between her and the respondent took place with respect to this count, despite its form. I should add that although NAH claimed that LMH was also present, the facts supporting count 15, which were said to reflect the same event as involving gross indecency with LMH, also alleged physical contact. However, on the facts as alleged by NAH, the applicant was sentenced to two months' imprisonment, one of the few sentences which was not asserted to have been manifestly inadequate.

Count 2 alleged a like count of gross indecency with NAH between the same dates. Here it is agreed that the events took place a few days later when the respondent again exposed his penis to the children and was "wiggling" it to get attention. He then asked NAH to "pat" it, which she did but was told that this would be "our little secret". On this count the respondent was sentenced to a term of three months' imprisonment.

The third count was agreed to be a representative count involving gross indecency with NAH extending from 1 September 1990 to 31 December 1990. It is here agreed that the offending, which took place on an occasion other than those referred to in counts 1 and 2, involved similar behaviour, i.e. touching, on "every night except for when mum was at home". On this count the respondent was sentenced to six months' imprisonment.

Count 4 made an allegation with respect to a longer period, that is between 1 September 1990 and 4 August 1991 which was the last day on which the offence of gross indecency with a child under 16, under the former s.50 of the Act, was in operation, although it alleged but a single act by the respondent. This occasion saw the escalation of the respondent's behaviour to the stage where he persuaded NAH to masturbate him. When she was about six she walked into the sitting room and found the respondent on the couch with both his socks and pants removed. He coaxed her to "wiggle" his penis, demonstrating how she should move her hands up and down. She did so for a sufficiently long time for her arms to have become tired. She said he had an erection but ejaculation was not alleged on this occasion. For this act the respondent was sentenced to nine months' imprisonment of which six months were made cumulative on the sentence on count 13.

Count 5 was another representative count covering the same period up to 4 August 1991 in which it was alleged that on occasions other than that referred to in count 4 the respondent committed further acts of gross indecency with NAH of a similar kind. She said that she had been abused by the respondent on a regular basis, "a weekly thing", persuading her again to masturbate him. It seems that he was indifferent to the fact that on some occasions LMH was also in the room. The agreed facts alleged that the respondent would sometimes ejaculate, but it is preferable to ignore that aspect of what is bad enough behaviour, for it seems inconsistent with the event described under count 7 as the first time the respondent ejaculated in their presence, which occurred when NAH was at least seven or eight. On count 5 the respondent was sentenced to nine months' imprisonment.

Count 6 is the first of a number of counts which allege the committing of indecent acts with NAH, contrary to s.47 of the Act, which first came into operation on 5 August 1991. This count was a representative count, so it was agreed, covering offences between 5 August 1991 and 31 December 1999. Although formally alleged as a single instance, it was described in the agreed statement of facts as relating to ongoing masturbation offences committed against NAH in the same circumstances as have been described under count 5, presumably to ensure that that ongoing behaviour was charged under the relevant but changing statutory provisions throughout the period from 1990 to 1999. As will be seen, however, counts 7 to 9 charged specific indecent acts and count 10 was a further representative count for the years 1997 to 1999, involving a degree of exhibitionism. Moreover the agreed facts for the purpose of count 6 referred back to count 5, but, as I have said, it was agreed on this appeal that the allegation involving ejaculation should be ignored for count 5 covering the period up to 4 August 1991 because of the specific allegations in count 7 which suggested that that first occurred on some date in about 1992. One must treat the count therefore as representative of his seeking regularly that NAH masturbate him but without further aggravating factors. On this count and for this behaviour, for which there was now a ten-year maximum sentence, the respondent was sentenced to nine months' imprisonment.

Count 7 returned to allegations of specific indecent acts, in this case one between 5 August 1991 and 31 December 1992. The agreed facts state that this was the "first occasion" on which the respondent ejaculated while being masturbated by NAH who recalled that she was seven or eight at the time. In the course of participating in this conduct she was asked by the respondent to get a tissue and to catch the sperm as he ejaculated, which she did. On this count the respondent was sentenced to nine months' imprisonment.

The next specific event made the subject of a count, being count 8, was alleged to have occurred between 1 January 1995 and 31 December 1997. Here it was alleged that when NAH returned home from primary school one day she found the respondent on the couch with his trousers off and his penis already erect. She was induced to masturbate him and to catch the ejaculate in a tissue. For this offence the respondent was sentenced to nine months' imprisonment and six months were made cumulative on the sentence on count 13.

Count 9 alleged a further indecent act of this kind, this time between 1 January 1997 and 31 January 1997. By this time NAH was just under 13 years old and again on this occasion the respondent required NAH to masturbate him. A further aggravating factor here, however, was that two female friends, TZ who was aged 10½ years and CP who was aged possibly 13, were both also in the room when the respondent ejaculated, as has been described. On this count he was sentenced to ten months' imprisonment.

Count 10 is again said to be a representative count alleging another indecent act between the respondent and NAH, in this case between 1 January 1997 and 31 December 1999 (other than the acts alleged in counts 6 and 9). Here it was agreed that in the presence of TZ and CP the respondent on a number of occasions in that year required NAH to masturbate him to ejaculation. While her friends were drinking cordial and watching, the respondent walked around the house naked and TZ in particular recalled him masturbating in her presence wherever he happened to be. The offence, nevertheless, was one directly alleging conduct with NAH who was 12 at the time and turned 13 on 3 December that year. On this count the respondent was sentenced to nine months' imprisonment.

The agreed facts supporting count 11, charging incest with NAH between 1 January 1994 and 31 December 1996, show a further escalation in the respondent's depravity with his stepchildren, although it will be seen, from a discussion of the facts supporting counts 19 and 20, that he had begun committing acts of oral sex on LMH in 1992. In support of count 11 it was said that NAH came into the lounge room with her friends TZ and CP and found the respondent naked on the couch handling his erect penis. He required NAH first to masturbate him and then to kiss his penis. The respondent was still not satisfied and told her to "kiss" his penis by placing it in her mouth which she did for a short time before pulling away. She asserted that this was the first time she realised that what the respondent was doing was bad. On this count of incest the respondent was sentenced to only 12 months' imprisonment.

Count 12 was another count agreed to be a representative count, this time alleging incest involving oral penetration of NAH between 1 January 1994 and 31 December 1999. In support of this count NAH recalled the respondent performing similar oral sexual acts on her, "regularly on a weekly basis". On this count which covered a period including that beyond 1 September 1997 when the maximum penalty for incest was increased to 25 years, the respondent was sentenced to 12 months' imprisonment, of which eight months was made cumulative upon the sentence imposed on count 13. The learned judge correctly stated that on a count pleaded as it here was the maximum term should be treated as 20 years.

Count 13, which was treated by the sentencing judge as the head count, also alleged incest with NAH, this time between 1 January 1998 and 31 December 1999, so that the maximum penalty of 25 years was then applicable. Again NAH arrived home from school with her friends TZ and CP to find the respondent on the couch playing with his penis. This time he rose from the couch and went into the kitchen but proceeded to force NAH back into the pantry. There he removed her school dress and her underclothing. She says that she was half crouched over because she was feeling embarrassed but the respondent proceeded to pin her arms back so she was touching his penis. While she was still crouched over and facing her friends the respondent put his hands around her to touch her vagina and then moved his fingers inside and around it. Then she felt the respondent push hard against her bottom and felt pain as he anally penetrated her by moving back and forth while he continued to touch her vagina. Her neck was sore and she began to feel dizzy. The respondent said nothing and CP and TZ sat just two metres away. Afterwards he apologised, but she said she was unable to walk properly for the next few days because of pain in both her vagina and anus. On this count the respondent was sentenced to three years' imprisonment.

Count 14 also alleged incest with NAH, this time between 1 January 1998 and 31 December 1999 but on occasions other than those referred to in counts 12 and 13. This was another count which was agreed to be a representative count covering a number of instances of vaginal penetration over this period when NAH was about 14 to 15 years old. Two particular instances were described but NAH stated that vaginal penetration happened again in the lounge room on at least two further occasions during the period. In the agreed first instance NAH said she arrived home from school to find the respondent standing naked in the doorway of the kitchen. She ran towards her bedroom but tripped. The respondent managed to remove most of her clothing. She was lying on her back trying to get up but the respondent was astride her kneeling on the ground. As she tried to get away he pinned one arm and penetrated her vagina with his penis. In the second instance NAH was trying to change channels on the television when the respondent came up from behind, pulled her jumper up and they both ended up on the floor. He was on all fours above NAH as he undressed her and fondled her breasts. As she continued to struggle he pinned her arms down, rubbed her vagina with his hand and then penetrated her with his penis for about ten minutes causing her pain. On this final count involving NAH the respondent was sentenced to 2½ years' imprisonment, of which 12 months were made cumulative on the sentence on count 13.

Count 15 was the first of the counts which alleged offences against NAH's older sister, LMH. She was born on 15 February 1983 but fewer offences were alleged affecting her. It is necessary to go back for this purpose to the period 1 September 1990 to 30 October 1990 which is the period during which count 15 alleged that the respondent committed an act of gross indecency with LMH. This is the count which earlier I said covered the same period and in some respects to cover the same allegations as in count 1, but that there were inconsistencies[5]

. The agreed facts alleged that at the time LMH was eight and that in "approximately 1991" (sic) their mother had spoken to both her and NAH about the "facts of life". There was again, so it is here alleged, the conversation about the respondent's "doodle", but the facts here alleged that not only did the respondent take out his penis in his hand but he also asked LMH to "grab it and wiggle it", which was done and continued for about 45 minutes. The allegations also involved the presence of NAH, but that was inconsistent with the allegations affecting her in count 1, at least to an extent. It was agreed before this Court that they should be taken as counts affecting the two stepchildren separately, but in the circumstances it would not be appropriate to give the respondent anything other than concurrent sentences on each. In fact on count 15 the respondent was sentenced to the same period of imprisonment as on count 1, namely, two months, albeit that the nature of the offending could here be seen to be more serious.

Count 16 was again agreed to be a representative count in which it was alleged that the respondent committed an indecent act with LMH between 5 August 1991 and 31 December 1999. As it was agreed that it covered similar conduct on the part of the respondent to that described in count 15 and in counts 1 and 2 (each count alleging gross indecency), it is perhaps not surprising that both prosecuting counsel[6] below, the learned judge and the summary provided to this Court each described the events as acts of gross indecency. Nevertheless, it related to offending after 5 August 1991 and so had been charged properly as indecent acts with LMH. There is a further difficulty in that the agreed facts referred simply to the accused exposing his penis to LMH and to her sister "on a regular basis ... from about when I was eight years old until about fifteen years old". Whatever occurred was said to have taken place "just about every time" that there mother was at work, but counts 15 and 2 involved more than mere exposure in that it was agreed for those counts that the respondent induced his stepdaughters to handle his penis in one way or another. Finally the count erroneously alleged that the indecent acts occurred between 1991 and "31 December 1999" but by then LMH was well over 16. However the agreed facts assert that the acts occurred only until she was "about 15", so that the count should be taken as alleging acts no later than about December 1998 or January 1999. On count 16 the respondent was sentenced to six months' imprisonment.

Count 17 alleged an indecent act with LMH during the more limited period 5 August 1991 to 15 February 1992. The agreed facts evidenced an escalation of improper behaviour with LMH in that here it was stated that, when LMH wanted to watch a particular television program, she was told by the respondent that she could watch the program only if she played with his penis. In the event she agreed to do this and masturbated him as he lay naked on the floor. On this count the respondent was sentenced to nine months' imprisonment of which six months were made cumulative on count 13.

Count 18 alleged a further indecent act by the respondent with LMH between 15 February 1992 and 25 December 1992. LMH had just showered and had wrapped a towel around her, but when she ran into the lounge room NAH pulled her and the towel fell off. She was then lying naked under her towel but the respondent who was also naked then climbed on top of her. She was very frightened but he told her that he would not do anything she did not want. She immediately told him to get off and he complied with her request. On this count the respondent was sentenced to six months' imprisonment.

Count 19 alleged an act of incest with LMH between 15 February 1992 and 25 December 1992, so that it appears that, as I have said, the respondent escalated the seriousness of his misbehaviour to the stage of incest before he took that step with NAH, as charged in count 11. On this occasion in 1992 it was agreed that the respondent was naked when he came into NAH's bedroom where both stepdaughters were present. They asked him about semen and he said he would show them. It is agreed that he persuaded both girls to perform acts of oral sex on him while they were kneeling on the floor. So far as this count is concerned it is said that he moved LMH's head up and down to the point where he had an erection and LMH stopped, although it seems that later she saw the respondent ejaculate. The respondent then apologised. On this count the respondent was again sentenced to only 12 months' imprisonment of which eight months were made cumulative on count 13.

Count 20 was again agreed to be a representative count alleging incest by the respondent with LMH between 15 February 1992 and 31 December 1999. The agreed facts state that, apart from the occasion described in relation to count 19, LMH was asked at about six other times to suck his penis, though she could not remember the matters in detail "because these things happened almost every day, except when mum was around". On this count the respondent was again sentenced to 12 months' imprisonment, of which eight months was made cumulative on count 13.

Count 21 has already been described but count 22 alleged the commission by the respondent of an indecent act in the presence of TZ between 1 January 1998 and 31 December 1999. At about this time TZ was aged 12 or possibly 13 but the difficulty with the agreed facts is that it was stated that she was present while the offences described in counts 9, 11 and 13 were committed against NAH in the way already described. Regrettably, having regard to the dates of the allegations relating to counts 9 and 11, none of them involved acts beyond 31 January 1997, and so could not have occurred during the period alleged in this count. Here acts of penile and anal incest described in count 13 did take place during the alleged period. Although it is also possible that it was intended that count 22 should also comprehend the events described in count 10, which also referred specifically to TZ's observations at the relevant time, it was agreed on appeal that count 22 should be treated as if it were confined to the conduct of the respondent in relation to TZ while committing incest on NAH as alleged in count 13. On this count the respondent was sentenced to six months' imprisonment of which three months were made cumulative on count 13.

Throughout the period described in relation to each of the counts the respondent had persuaded both NAH and LMH not to tell their mother of their so-called "secret". The respondent's behaviour ceased after 1999 for a number of reasons. The matters were not reported, so it seems, until the second half of 2003, at which time the respondent was interviewed, made significant admissions and indicated at all times that he would plead guilty to the substance of the offences, so that the sentencing hearing came on for hearing in January of this year.

Before the learned judge a number of matters relating to the respondent were put on his behalf. He was by then 47 years old. His only prior conviction occurred on 23 June 1981 where he was found guilty of wilful and obscene exposure and fined $200. The judge said, because it was of a minor nature, that it was not relevant to sentencing the respondent, but it must be observed that it was an unfortunate incident in that within six or seven years he had proceeded to giving the so-called "anatomy lesson" to his own daughter and within nine years commenced the long chapter of offences with his stepdaughters by exposing himself to them. Moreover it was conceded that not only was he the father of the victim in count 21 but that, as the victims of 20 of the other offences were his stepdaughters, and he was living either in a de facto relationship or as the husband of those girls' mother during the time when they were committed, the children were under his care and supervision, more particularly because their mother was at work and he was the only adult at home when they returned from school each afternoon. The judge, on the other hand, correctly pointed out that the pattern of misbehaviour had ceased by the end of 1999 two or three years before it was exposed. Not only that but his Honour gave full weight to his plea of guilty which, apart from some bargaining about the precise number of counts, reflected a willingness to admit his guilt in relation to each of the charged offences and to make full admissions for that purpose. However, the judge noted that the respondent tended, at least at first, to place as much possible of the responsibility for the offences on the stepdaughters by reason of their willingness to co-operate, at least in the early stages, and to blame his wife's lack of interest in sexual activity. Nevertheless the absence of the need for cross-examination at both committal and trial was of significance, bearing in mind the trauma they had suffered as evidenced by their victim statements.

The judge referred to the undisputed fact that the respondent had a good work history which was supported by his employer. There was moreover a report from a psychologist who said that the respondent was the victim of childhood sexual abuse, although it did not extend beyond "a few times over a few weeks" at the age of seven when his brother aged 10 persuaded him to perform acts on him similar to those alleged in the counts charging gross indecency. Despite his good work record, it appears from the psychologist's report that the respondent had had difficulties at school and was assessed as functioning just above the lowest 15% of the population in terms of intellectual capacity. The judge was, however, reluctant to accept the degree of regret and remorse said by her to have been expressed by the respondent. His Honour concluded, though on what precise factual basis is not clear, that the respondent's conduct was opportunistic rather than predatory, although he accepted that there were some aspects evidencing conduct of the latter kind. He therefore expressed the opinion, though again on what basis it is not clear, that the respondent was unlikely to reoffend after his term of imprisonment.

In sentencing the respondent the judge stated these matters but likewise referred to the seriousness of offences such as incest and the approach of the courts to those cases. He also noted that there were some nine representative counts but accepted that what was therein alleged is to be treated as a "representative specimen" and that the representative nature of the count is but an aggravating circumstance. His Honour referred also to the need in sentencing on multiple counts to impose what is an appropriate sentence in all the circumstances, concluding that such a task "required sentences to be not only appropriate, but moderate ...". Again the judge noted the need to sentence the respondent as a serious sexual offender in respect of count 3 and subsequent counts. Then, after referring to the factual matters which I have already described, the need to give a "substantial reduction" in sentence for these offences "despite their appalling nature" and the need to have regard to the protection of the community, his Honour then set out, without any explanation as to individual offences, the terms which he proposed to impose and the orders for cumulation, together with the direction as to the service of a non-parole period, which I have already described. As I have said the cumulation amounted to some five years over the head term on count 13, making what is called a total effective sentence of eight years, the non-parole period directed being six years.

The Director's primary contention was that in all the circumstances the sentences, including the total effective sentence and the minimum term, were manifestly inadequate. As is frequently said, a decision on such a question is ultimately one of impression, but in the present case there can be no doubt that overall the sentence manifestly failed to reflect properly the seriousness of the respondent's offending, notwithstanding the matters that might fairly be taken into account in his favour. Whichever way one approaches his Honour's determination and notwithstanding the approach to be taken to appeals of this kind as referred to in decisions such as R. v. Clarke[7], there has been a clear failure to fix terms of sufficient length. The individual terms are, in all but arguably one case, (count 1), substantially less than what was required. The four sentences of 12 months for incest effected by oral penetration were derisory, the terms imposed for the other more serious counts of incest were little better. The sentences for each of the counts alleging indecent acts with his two stepchildren were again far below what might have been expected. The sentences for the lesser offences of gross indecency might arguably have been capable of justification if viewed independently and having regard to the maximum term fixed of three years, but they again reflected a failure to view the respondent's conduct with appropriate seriousness.

It may be said that the learned judge attempted to produce an overall sentence of reasonable severity by making a significant number of orders for "cumulation", so as to produce the total effective sentence of eight years with a minimum of six years, but those dispositions in themselves still manifestly failed to produce an adequate and sufficient sentence overall. Nor, for reasons to be examined, does it appear why particular terms were chosen for "cumulation" and not others. The sentence was, regrettably, structured in a way likely to produce an inadequate outcome by failing to impose appropriate sentences for each count. The desirable approach, derived from Mill v. The Queen[8] and explained in detail in R. v. Lomax[9] and DPP v. Grabovac[10], as applied subsequently in cases such as R. v. Mantini[11], would preferably[12] look at what sentences should properly be imposed for the individual offences and then turn to the (non-statutory) total effective sentence, by orders for cumulation, concurrency and the like, and to consider what is an appropriate non-parole period. Perhaps if the judge had started with an adequate base term then the total time cumulated might have been sufficient, but in truth the balance was quite wrong.

It is possible that the judge notionally imposed higher terms and then reduced them to comply with principles of totality and proportionality. If so, he did not explain what he was attempting to do. In any event, if that be the correct hypothesis, such reductions must have been remarkably large to have resulted in, for example, 12 months' terms for oral incest with stepchildren aged nine to fifteen.

Again it is conceivable that his Honour thought that all terms, as well as the total effective sentence and minimum terms, should be reduced because of the ameliorating circumstances applicable to the respondent. The judge certainly referred to all relevant factors of that kind in his reasons. It is likewise possible that he took the plea of guilty, in particular, to which he referred in some detail, as requiring the imposition of such light sentences. It may be that he thought that every aspect of that plea should be given weight by significantly reducing the terms by adding a percentage reduction for each such factor to other percentages for other like factors and so on. Of course all factors had to be considered but it could not justify reducing a term which was otherwise appropriate by over 50%.

Perhaps his Honour also gave weight to the respondent's intellectual limitations, his (largely) good record, a degree of remorse (though doubted by the judge himself), his (limited) sexual abuse by his brother and a belief that he would not reoffend, but in this case these were all factors of a relatively moderate significance having regard to the systematic pattern of offending over at least nine years[13], though each factor (except one) had to be recognised and properly taken into account.

The one specific factor referred to by the judge which I would discount was his "instinctive judgment" that the respondent would not thereafter reoffend. This conclusion was not directly supported by the psychologist's report which was otherwise very sympathetic. The frequency of his offending over the final ten years, bearing in mind only to a small degree his past indiscretion but including the offence against his own child, the number of children affected and his limited intellect, does not necessarily indicate that, given like circumstances, he may not be tempted to offend similarly at some time or another. If a clear message of specific deterrence is not given, then the risk of some future offending must exist though the respondent may not be tempted to commit incest, at least for a very long time.

Then, so far as the lesser offences of committing indecent acts and the like are concerned, the sentences are manifestly insufficient and have sent the respondent and the community quite the wrong message. This is where the Director of Public Prosecutions' second head of complaint is particularly important, namely that of failing to follow the preferred method of sentencing described in Lomax and Grabovac. These other offences, though less serious than incest, have been treated almost as minor indiscretions. If proper sentences had been imposed for each such offence, the aim of totality could have been achieved by allowing greater concurrency, so that the respondent, his victims (and their relatives) and the community might better have grasped how seriously the courts view indecent behaviour of this kind with children, albeit that greater concurrency might have been allowed so as to avoid imposing an unreasonably crushing total effective sentence.

Again, as the Director contended, his Honour failed to recognise sufficiently the significance of the respondent's being classified as a serious sexual offender for counts 3 to 22, by failing in any explicit way to recognise the legislative requirements, especially those relating to cumulation and concurrency, albeit that he stated in broad terms the need to have regard to the protection of the community by imposing sentences longer than that which otherwise would be proportionate to the gravity of each offence. As every order for "cumulation" was expressed in those terms, his Honour failed to recognise that concurrency is treated as the exception rather than the rule and that s.6E of the Sentencing Act 1991 requires specific directions as to concurrency so as to overcome what otherwise is the prima facie cumulation of sentences of this kind. Of course, proportionality must be recognised even where the protection of the community is the primary consideration, and likewise totality must always be recognised when considering cumulation. That is why in Lomax and similar cases the statutory requirement for cumulation was given relatively little weight but it must not be ignored. If it is not to be properly recognised, then the sentencing judge ought ordinarily to explain why he is not complying with the statute. Moreover an impression of non-compliance with the requirement of cumulation is emphasised whenever a judge expresses an order which merely "cumulates" some part of a term, whereas the statute requires that the relevant direction should be expressed in terms of concurrency: cf: Lomax[14]. If not (and, regrettably, too often are the words of the statute overlooked), then the impression should not be given that the statutory requirements have been ignored. Here there had been no reference to the provision as to cumulation, though it happens that some significant cumulation had been ordered, but there was also no sufficient recognition of the other aspects of the sentencing of serious sexual offenders, apart from the one brief general comment. The major difficulty is to see what influence these provisions in fact had in the working out of his Honour's sentence.

Moreover his Honour failed to give proper weight to the representative offences. This is never an easy task, for sentence should be passed upon the basis of a single offence, but the aggravating factor, namely that it is a representative count, should ordinarily be seen as counter-balancing, to some extent, some of the ameliorating factors. Here it is almost impossible to understand why the sentence on the representative count 10, for the final series of indecent acts against NAH, should have been the same as the sentence for a specific act of that kind as charged in count 8 and less than that for the further specific count 9, which had as an aggravating feature the presence of the two other girls (for which he was sentenced to ten months' imprisonment), but subsequent examples of which formed the agreed basis of count 10 on which he was sentenced to only nine months' imprisonment. Again if one compares the sentences on counts 19 and 20, for each of which the respondent was sentenced to 12 months' imprisonment, it is difficult to see why the identical term was imposed for count 20, which was a representative count, but which alleged identical behaviour over some six or seven years.

Nevertheless the principal defects in this sentencing process were the exceptionally low terms imposed for serious examples of committing indecent acts with children under 16 and for incest with the same children. As to the counts alleging indecent acts, although surrounding circumstances vary greatly (compare the recent judgment of this Court in R. v. Taylor [2004] VSCA 98), it is hard to justify terms between only six and ten months which were imposed on counts 6 to 10 and counts 16 to 18. Not only did those counts include a number of representative counts (counts 6, 10 and 16), but they demonstrated an escalation of his obscene conduct with these young girls, as he sought successfully while they were under his control to persuade them to acquiesce in his originally lesser sexual advances to a stage, as early as 1992, where he was able to force them to masturbate him regularly and for extended periods of time even in the presence of other young persons. Apart from the absence of direct force, these were as bad examples of offences under s.47 as one might find. The baleful influence of the respondent's conduct is reflected in the victim statements.

The same might be said of the counts of incest. It is hard to fathom why the learned judge fixed 12 months as the appropriate sentence for the four counts of oral rape (counts 11 and 12 and 19 and 20), two of which were representative counts. Perhaps his Honour had in mind the principle of totality, but even then with total cumulation only four years would have been imposed for offences committed regularly over some six years on two young stepchildren. Although this form of intercourse has only been treated as incest since changes to the sexual offence provisions of the Act were made in the early 1980's, there is no reason to treat this kind of behaviour as less serious, more especially when committed with innocent and impressionable young children. One may again accept that no force was directly used, nor any additional perversions added, but the respondent's wheedling had resulted in passive acquiescence by his victims, in circumstances which cannot be condoned. When one adds the fact that the respondent effectively sought to humiliate his victims by the performing these acts while other young friends looked on, or in the case of LMH, while her younger sister was present, then terms as low as 12 months cannot be justified. It is unnecessary to repeat the behaviour described in relation to those other counts of incest which drew terms of imprisonment which were somewhat longer, namely three and 2½ years' imprisonment for counts 13 and 14. There was clearly force used, pain caused and humiliation effected by the circumstances leading to both digital and anal rape as described in count 13. The circumstances described as representative for count 14, this time alleging vaginal rape, were little better, again involving a degree of force. The sentences were far below what was appropriate and cannot be accepted.

Consequently I would conclude that the individual sentences (other than on count 1), as well as the total effective sentence and the minimum term, were manifestly inadequate, notwithstanding the unwillingness an appeal court should have in interfering on a Director's appeal with the sentencing disposition of a trial judge.

The whole of the sentencing discretion having been reopened, one must turn to what sentences should now be imposed, again having regard to the judicially imposed restrictions on the exercise of the statutory power and the desire stated by the courts of avoiding "double jeopardy" in these circumstances. Regrettably the sentences are so far less than otherwise should have been imposed that significant increases will have to be ordered. In each case I have taken into account the respondent's plea of guilty and its timing, his psychological condition and the other facts in his favour earlier described.

I shall deal first with the counts alleging gross indecency with a child under 16, namely counts 1 to 5, 15 and 21, which involve three different children and for which the maximum term at the time was and remains only three years for present purposes. The first two counts, as the judge correctly noted, did not require the respondent to be sentenced as a serious sexual offender, but it is difficult to see how the judge thereafter gave effect to the distinction. One may accept that count 1 did not require a penalty beyond two months, since it amounted to no more than a form of indecent exposure. Count 2 describes a more serious kind of offending, in that the respondent induced NAH to touch his penis. I would increase the penalty on that count to six months' imprisonment.

All other counts require the sentencing of the respondent as a serious sexual offender but here count 15 poses a problem, for it appears to cover the same events described either in count 1 (the more likely) or count 2, but from the viewpoint of LMH. It is certainly the first offending involving that sister, but I consider the only restriction on resentencing is that the sentences should be concurrent, which in the case of count 15 will require a specific order. On the other hand, any new sentence can reflect the seriousness of the allegations made and agreed, which included the fact that the respondent induced LMH to touch his penis over a period of some 45 minutes. I would sentence him on this count to six months' imprisonment.

Counts 3, 4 and 5 pose different problems. Two of the counts are agreed to be representative counts, but the only one made in part cumulative by the judge was count 4 which was not representative. Apart from correcting that, the sentences were inadequate having regard to the seriousness of the offending. Count 3 should attract nine months' imprisonment, but counts 4 and 5 (a representative count), which demonstrate an escalation in the respondent's offending, should result in his being sentenced to 12 and 15 months' imprisonment respectively. I shall return to the question of concurrence.

The last count of gross indecency on the presentment is in fact the first in time, namely count 21, which involved the respondent's own blood relative, his four or five year old daughter BLR. Consistently with the sentences on the other counts making this kind of allegation, I would sentence the respondent to nine months' imprisonment. I would add that, were it not for the fact that this is a Director's appeal and for the fact that the maximum sentence for the offence at that time was only three years, the behaviour described, especially when it went beyond mere touching, ought to have attracted a substantially higher penalty.

Counts 6 to 10 comprehend allegations of a similar kind to those described under counts 4 and 5 but charged as indecent acts with a child under the age of 16, which by then carried a much greater maximum penalty, namely 10 years. As to these counts I have already said that the sentences imposed were far below what was required and that they seemed to have ignored the greatly increased maximum for the offence now described in 47 of the Act, as amended in 1991. Substantial increases in penalty are therefore justified but the extent must be circumscribed by the "double jeopardy" rule. Here I believe the judge in part chose the small sentences because of his desire to tailor the sentence to achieve totality, so that he imposed low sentences and then cumulated more than was appropriate in the circumstances. The double jeopardy rule should not inhibit the Court if it is firmly understood that the sentences proposed are intended not only to reflect what are appropriate penalties but also to require directions for substantial concurrence in order to reflect both the totality rule and the double jeopardy rule.

Thus for count 6, a representative count, but dependent in its description on offending which did not go beyond the first stage of the respondent's forced masturbation by NAH, I would sentence the respondent to 21 months' imprisonment, bearing in mind the restrictions on resentencing imposed on this Court. Counts 7 and 8 returned to specific acts of masturbation, of a particularly unpleasant kind. In each case I would impose a term of two years' imprisonment. Count 9 alleges acts of a similar kind but this time the respondent chose to force this disgusting behaviour on NAH while two school friends looked on. For a child it is hard to envisage a more humiliating experience, so that it is not surprising that each of them found it hard to inform on the respondent. The respondent should be sentenced to two years and six months on this count. Count 10, though a representative count, comprehends similar misconduct to that described in count 9. I would impose a term of two years and nine months' imprisonment on this count. Without the constraints to which I have referred, even greater sentences might well have been imposed. They are each imposed, however, upon the assumption that it is appropriate in the circumstances to order substantial, if not complete, concurrency, but to that I will return below.

Counts 11 and 12, based on the respondent's persuading his stepchild NAH to suffer acts of oral intercourse with her, likewise attracted sentences below which were exceptionally modest. Such revolting conduct, again forced in circumstances where NAH must have felt humiliated by the presence of the two other young children, as alleged in count 11 at least, requires a sentence to be imposed of four years and nine months' imprisonment, again having regard to the relevant constraints. For count 12, though nobody is said to have watched the respondent's conduct, a similar term of four years and nine months should be imposed because of its representative nature. It is appropriate to do so so as more effectively to restructure the sentence, for, as will be seen, I would direct proportionately far more concurrence with respect to these counts. In each case it must be said that oral intercourse cannot now be dealt with so leniently: indeed with young children, where no true consent can be asserted, ordinarily a longer term might well be considered.

Counts 13 and 14 cover events where the respondent took his reprehensible behaviour to new levels. For the first time as alleged the respondent sought to force his attentions on his stepdaughter where there could be no suggestion of acquiescence and where pain was caused which did not immediately pass. It is unnecessary to repeat the details of the behaviour, but it was again conducted in humiliating circumstances while the other two children watched. On this count I would sentence the respondent to seven years' imprisonment, notwithstanding the relevant constraints. It goes without saying that I would otherwise have imposed a greater sentence. Count 14 also involved forced acts of penile penetration of NAH's vagina, which have been alleged on a representative basis, so that it would appear that notwithstanding the protestations of NAH on the earlier occasion the respondent persisted in having his way with her. Again I would impose a sentence of seven years' imprisonment for this totally unacceptable conduct. Again the respondent deserved more but in due course I will propose a direction which will make the term largely concurrent with that on the head count 13.

Counts 16 to 18 each involved allegations of indecent acts with the stepdaughter LMH from a time when she was about eight until she was 15. The nature of the allegations under count 16 is somewhat confused, since it covers such a long period but the acts are described in terms of the lesser of the offences earlier described, so that I would impose a term of imprisonment of 21 months on the respondent for this count, albeit that it is a representative count. Count 17 suggests some escalation of the respondent's behaviour but not in the way described in counts 7 and 8. As this was not a representative count I would again sentence the applicant to a term of 21 months' imprisonment thereon. Count 18 likewise alleged a single further indecent act with LMH of a different kind to those otherwise described. Elements of vulgar indecency were not directly described but there was some violence, indeed a threat of continued violence suggesting an intent to rape LMH which caused her to become very frightened. On the other hand the respondent then enquired whether she wished him to continue and, when she said no, immediately desisted. The learned judge perceived this as less serious and I would propose sentencing the respondent to 15 months' imprisonment on this count.

Counts 19 and 20 relate to acts of incest with LMH, each involving the respondent persuading LMH to both perform and suffer acts of oral intercourse by him. Count 20 was another representative count in which similar acts were alleged to have been later performed on about six other occasions when LMH's mother was at work. Although the latter count was a representative one, the agreed facts lacked some of the more unpleasant aspects described under count 19. In all the circumstances, and bearing in mind all the constraints relevantly placed on the Court, the respondent should be sentenced to terms of four years, nine months on each count.

There remains only count 22 where it is alleged that the respondent performed an indecent act in the presence of TZ which was the incest committed on NAH described in count 13. This, by reason of its circumstances, would be a serious example of committing an indecent act in the presence of "a child under 16" but it has never been alleged that it involved any personal contact with the girl TZ. One must be cautious also in that it depends essentially on facts which have already been alleged in support of another count and made the subject of a significant term of imprisonment. It therefore will require, as hereafter appears, that it be served entirely concurrently, but the nature of the offending calls for a sentence on this count of 12 months' imprisonment.

Turning to the question of concurrency and cumulation, it is here appropriate to reflect the principles of totality already referred to and described in cases such as Lomax and Grabovac. In my opinion appropriate sentences have been proposed for each of the counts, subject only to the constraints which I have mentioned. Having regard to the increase in the head sentence to seven years (and I propose that count 13 should remain the head sentence), the persistence of the respondent's depravity must be reflected by a sufficient number of orders of cumulation to reflect the duration and variety of offences committed on the four girls and also to reflect the statutory requirement that ordinarily, but for the principle of totality, the prima facie statutory prescription that terms imposed on such offenders should be treated as cumulative. What I propose is that there should be a significant number of orders which effectively will add to the seven year term on count 13. In all the circumstances it is not necessary that every count should be represented by a minuscule order for effective cumulation and what is suggested by the following proposed directions is that each type of offending with each victim should lead to a degree of cumulation. After counts 1 and 2 that will specifically require orders directing concurrency except to the extent that cumulation is thought desirable.

For this purpose, therefore, it is not necessary to make any orders with respect to counts 1 and 2, for I do not propose that any part of them should be cumulative upon the sentence on count 13, and they will therefore be treated as concurrent with those on both count 13 and the other counts without further order. As counts 3, 4 and 5 ought, as I have proposed, to attract relatively modest sentences consistent with the nature of those offences and the short maximum term then prescribed, I would propose that they all be recognised only by an effective cumulation of two months of the sentence on count 5. The relevant orders will require that it be directed that the terms on counts 3 and 4 be served concurrently with that on count 13 and on each other count and that 13 months of the sentence to be imposed on count 5 be served concurrently with the sentence on count 13 and on each other count, leaving a period of two months to be cumulated accordingly.

Again, turning to counts 6 to 10, I propose that they be treated together and that the effective cumulation be on the representative counts (rather than on count 8) so that two months of the term on count 6 and four months of the term on count 10 be cumulated on the term on count 13. The orders therefore which should be made would direct that 19 months of the term on count 6 be served concurrently with the term on count 13 and on each other count, leaving two months to be cumulated. Further it should be directed that the terms of two years on each of counts 7 and 8 be served concurrently with the term on count 13 and on each other count and that the term of two years and six months on count 9 be served concurrently in the same way. On count 10 it should be directed that two years and five months should be directed to be served concurrently with the term on count 13 and on each other count, this time leaving four months to be cumulated on the sentence on count 13.

Likewise on counts 11 and 12 I would propose that cumulation should be dealt with by effectively cumulating 12 months of the term imposed on the representative count 12. Again this attempt to reflect an increase in the seriousness of the conduct which would ordinarily justify greater cumulation (and cumulation of at least part of the terms on each count) but for the principle of totality. Consequently I would direct that the term of four years and nine months on count 11 be served concurrently with the term on count 13 and on each other count, but that on count 12 three years and nine months be served concurrently in the same way, leaving 12 months to be cumulated on the head sentence on count 13. Count 13 is the head count but count 14 is a representative count involving most elements of the respondent's worst and most depraved conduct. Although in other circumstances the nature of the offending would call for greater cumulation, here, having regard to the purpose of the overall sentence, I consider that effectively some 16 months should here be cumulated on count 13. The order proposed is therefore that it should be directed that five years and eight months of the term on count 14 be served concurrently with that on count 13 and with those on each other count, thus leaving a period of one year and four months to be cumulated on count 13.

Turning then to the counts affecting LMH, count 15 must first be dealt with. This was the only count alleging gross indecency with LMH and for which a relatively light sentence has been proposed. As earlier stated it would appear that the circumstances cover the events described and already punished so far as NAH is concerned under counts 1 or 2. No part of the term, therefore, should be made cumulative and I would direct that the term of six months to be imposed on count 15 be served concurrently with the term imposed on count 13 and on each other count.

Counts 16, 17 and 18 relate to the commission of various indecent acts with LMH. As already stated the facts described for the purposes of counts 17 and 18 do not involve acts of the same seriousness as under the more serious of the counts relating to indecent acts with NAH and count 16 is in fact the only representative count. It is appropriate that some period, albeit representative of this lesser but continuous offending, be made cumulative on the head count and I would suggest four months. In consequence I would direct that 17 months of the sentence imposed on count 16 be served concurrently with that on count 13 and on each other count, leaving the period of four months to be served cumulatively on count 13. I would also direct that the whole of each of the sentences on counts 17 and 18 be served concurrently with the sentence on count 13 and on each other count.

Turning then to the counts of incest with LMH comprehended by counts 19 and 20, it is again clearly appropriate that some part of this reprehensible behaviour be treated as cumulative, but again in conformity with the principles of totality described in cases such as Lomax and Grabovac, I would propose that 12 months on the representative count 20 be effectively made cumulative on count 13. Consequently orders should be made directing that the term of four years and nine months imposed on count 19 be served concurrently with the term imposed on count 13 and on each other count and that three years and nine months of the term imposed on count 20 is served concurrently with the term imposed on count 13 and on each other count, so that a further 12 months will be served cumulatively on the head count 13.

Finally one must deal with the sentences on the last two counts on the presentment, counts 21 and 22. Count 21 charged an offence which was in fact the first in time of the events described in all of the counts, but involved a charge of gross indecency of perhaps a somewhat lesser character. However, as it involved an act with his natural child BLR, there must be an element of cumulation which I would propose as two months. Consequently ten months of the term imposed on count 21 should be directed to be served concurrently with the term imposed on count 13 and on each other count, so as to leave a period of two months to be cumulated on count 13. Count 22 is again a charge of somewhat lesser seriousness, however horrifying the circumstances which TZ observed. I have already stated that all those events have been made the subject of the sentence on the head count 13 and that it would be inappropriate to cumulate any part of the sentence on count 22. I would therefore direct that the whole of the term of 12 months imposed on count 22 be served concurrently with the sentence on count 13 and on each other count.

The consequence of each of the directions for concurrency and the required statutory cumulation of the balance of the sentences on the relevant counts is that some 4½ years should be added to the term of seven years on count 13. The total effective sentence which I would propose would therefore be 11½ years. In all the circumstances that seems to comply with the rules relating to totality and ought not to impose an unreasonably crushing sentence, notwithstanding the duration and depravity of the respondent's conduct, which otherwise would deserve an even longer term of imprisonment. The question then arises as to what is an appropriate term to be served before the respondent becomes eligible for parole. The relevant factors have already been referred to but, notwithstanding my views as to the seriousness of the respondent's offending, it would seem inappropriate to take a significantly harsher view than did the judge as to the time he might serve on parole. In all the circumstances of the case, therefore, I would propose that the respondent serve nine years and three months before becoming eligible for parole. An appropriate declaration will have to be made and all other orders should be confirmed.

I would therefore allow the Director's appeal and resentence the respondent in the manner described.

I agree, for the reasons advanced by Ormiston, J.A., that this appeal should be allowed, the sentences imposed in the Court below be set aside, and the respondent re-sentenced in the manner proposed by him.

As his Honour has pointed out, neither in the individual sentences nor in the total effective sentence imposed in this case can the seriousness of this respondent's conduct be seen to be reflected. Perhaps even more importantly, what I regard as one of the fundamentally important objectives of the criminal law has been overlooked. It is encompassed by the notion of social rehabilitation.

As I have remarked on more than one occasion when imposing sentence, the process of social and personal recovery which the courts endeavour to assist in order to ameliorate the consequences of criminal conduct can be impeded or facilitated by their perceived response to that conduct. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. If the balancing of values represented by the sentence is perceived as just, the process of recovery will be assisted. If not, there will be created within the minds of those directly affected by the crime and the wider community generally a sense of injustice and hurt, and of the failure of the system that may never be removed.

From the perspective of a person who has been subjected to a childhood blighted by sexual abuse and who, sometimes after years of suffering, is prepared to report the matter and expose himself or herself to an often lengthy legal process requiring hurtful personal disclosures, the response of the legal system must be expected to assume a high level of significance. At minimum, and whatever sentence is imposed, the courts must be seen to recognize the true character and impact upon those who are intimately affected by what has occurred and to vindicate the rights of the abused. That simply did not happen in this case.

[2] Counts 6, 7, 8, 9, 10, 16, 17 and 18.

6] Again counsel appearing below differed from those appearing on this appeal.

[11] [1998] V.R. 340 at 346-348.

[12] See also Johnson v. The Queen [2004] HCA 15; (2004) 78 A.L.J.R. 616 at 624 para.[26].

[13] The first offence described in count 21 was somewhat separated in time.

At a glance

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Judgment (82 paragraphs)

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