DPP v D J [2011] VSCA 250

Court of Appeal (Vic)|2011-08-24|Before: Mr J, Maxwell P

Director of Public Prosecutions v [DJ] (Unreported, County Court of Victoria, Judge Cohen, 12 February 2010)

CRIMINAL LAW - Appeal - Director's appeal - Sentence - Incest - Three counts of incest (one representative count) and one count of common assault - Use of force as aggravating factor in incest cases - Whether reflected in current sentencing practices - Consideration of sentencing range for incest offences involving violence - Review of current sentencing practices for incest - Sentence of 6 years and 6 months' imprisonment not inconsistent with current practice - Appeal dismissed.

1 The respondent pleaded guilty in the County Court to three counts of incest (one of which was a representative count), and one count of common assault. The victim in each instance was his daughter (S), who was aged about seven when the first act of incest occurred and 15 when the three later offences were committed. He was sentenced as set out in the table below:

2 The Director of Public Prosecutions appealed against the sentence on the ground of manifest inadequacy. This was said to be true of each of the individual sentences, the total effective sentence and the non-parole period. The central contention in oral argument was that the sentencing judge had not paid sufficient regard to the aggravating features of the offending, in particular the use of violence and force in the conduct giving rise to count 2.

3 At the conclusion of argument on the appeal, the Court ordered that the appeal be dismissed. These are my reasons for joining in that order.

4 The judge described the offending in her sentencing reasons. The relevant paragraphs are set out in Appendix A to these reasons.

5 In her sentencing reasons, the judge spoke in the strongest terms about the gravity of this offending:

There can be no excuse for these offences. All adults have responsibility to avoid sexual abuse of any child, but for a father to have any sexual activity with his daughter is a gross breach of trust and of parental responsibility which must be condemned unreservedly. It violates all notions of you protecting your child from harm, and the harm it will inevitably have done may last her lifetime. You were very young to become a parent and apparently lacked any good parenting role models, and I take into account that you have limited intellectual abilities. However you must have known that it was forbidden to have sexual activity with your daughter. Indeed, she obviously knew it herself, as she asked how you could do this to your own daughter, as you forced her to have sexual intercourse with you on the last occasion.

6 I respectfully agree. This Court has repeatedly emphasised the seriousness of the crime of incest.[1] This case was undoubtedly made the more serious by the respondent's use of force in the 'primary incident' under count 2, and by his having acted 'in spite', that is, to punish his daughter for what he judged to be her refusal to participate in family events.

7 The judge took into account that S had suffered emotional trauma at the time of the offending and ever since. Her Honour summarised the content of the victim impact statement, in which S described

feeling fear when she knew she would be home with you alone, and fear of revealing your behaviour. She resents you ruining her childhood, and that she was not able to trust you to have a father/daughter bond with you. She said she would stay out or away from doing things as a family because of her fear of you. She is now, I am told, living interstate, I understand with her maternal grandparents. She says she feels better and is trying to rebuild her life. She does not hear from her mother and feels that loss of support, but she does receive support from other family members. It is to be hoped that she can receive appropriate support to deal with her responses and, as she says, rebuild her life. The long term consequences of sexual abuse of young children are all too often heard in this court.

8 Testing showed that the respondent had an IQ which placed him 'in a range that psychologists call mildly intellectually disabled'. In her Honour's view, this was consistent with the respondent

seeing things subjectively, that is, from [his] own point of view, and finding it hard to take into account other people's perspectives.

I have taken into account that you have cognitive limitations and emotional detachment, both of which may have lessened your ability to perceive how grossly wrong such behaviour was. To a moderate extent, I regard it as lessening your moral culpability for these offences, but I do not accept that it did so to a great extent, nor that it calls for moderation of the aspect of general deterrence in your sentence - that is sending a message to others that this type of offending will receive very severe punishment.[2]

There is no clear explanation for your offending and that is of concern as it makes it difficult to assess whether there is a risk to you or others of you reoffending. You have no other daughter and there is no material suggesting that you might offend against others.

...

Deterrence of you, as well as others from committing offences of this nature is also important although, as I have said, there is nothing to indicate that you ever had or would in the future have any inclination to sexually abuse any other person.

10 The respondent had no prior criminal record, and no history of drug or alcohol abuse or any other anti-social behaviour. In her Honour's view, these circumstances were relevant to his prospects of rehabilitation, especially when taken together with his record of steady employment.

11 Her Honour noted that the respondent was entitled to 'considerable leniency' for pleading guilty without a disputed committal hearing or trial. Not only had he saved the community the time and cost of disputed hearings, but he had saved his daughter and other members of his family from having to give evidence.

12 There was no challenge to any of these findings on the appeal.

13 At the commencement of his argument on the appeal, counsel for the Crown conceded that, as a matter of first impression, the sentence here imposed appeared to be consistent with current sentencing practice. He acknowledged that, unless he could persuade the Court that there were features which took the present case outside 'the general run' of such cases, the appeal must fail.

14 Counsel submitted that there were two distinguishing features of the present case. The first was the use of force. The second was the respondent's admission that he had sexually abused his daughter in order to 'spite' her. In order to evaluate this submission, it is first necessary to refer to the course of events on the plea.

15 Defence counsel conceded on the plea that a term of immediate imprisonment was the only appropriate sentence, but contended that the length of the sentence should be 'tempered' on account of the mitigating factors. At this point, the sentencing judge drew to the attention of both counsel the decision of this Court in Director of Public Prosecutions v BDJ.[3] That decision had been handed down less than two months before the plea hearing and neither counsel was aware of it. Her Honour said:

I raise it because it involved a number of counts of incest with the respondent's daughter, and it is a situation where there were a number of mitigatory factors, including a plea of guilty, and the Court of Appeal increased the sentence that the primary judge had imposed. I just bring it to your attention because it was a DPP appeal that it was manifestly inadequate, the original sentence having been a total effective sentence of 6 years 6 months, with a non-parole period of 4 years 4 months. It was increased under the principles [applicable] on a Crown appeal to 8 years 6 months, with a non-parole period of 5 years 6 months. It is invidious comparing numbers of counts and specifics ... [but] because it had come out since the last matter and was a recent decision involving some similar issues, I wanted to give you the opportunity to comment on it if you felt you should.

16 In BDJ, this Court allowed the Director's appeal and resentenced the offender as follows:

17 The Crown submission on the plea in the present case was that this was 'serious offending behaviour, involving a gross breach of trust'. Her Honour rejected, however, the prosecutor's submission that it was 'protracted offending', pointing out the long interval between the conduct giving rise to count 1 and the conduct giving rise to counts 2-4. At the same time, her Honour commented that the long interval between the episodes had given the respondent the 'opportunity in between to think better of it and to realise the enormity and strive not to repeat it.' The prosecutor contended that it was clear from the respondent's record of interview that

he knows just how taboo this behaviour is. He knows that it is outside the boundaries of what is acceptable in the community ...

He seeks to minimise his behaviour and conceal it from the police as best he can. He clearly understands the nature of his offending and the view that society has of that.

18 The prosecutor submitted that 'significant sentences of imprisonment' were called for. No submission on sentencing range was requested by the sentencing judge, however, and none was proffered.[4] As to BDJ, the prosecutor submitted that no more than general matters of principle could be drawn from the decision, no closer comparison being possible because of the different factual circumstances.

19 Her Honour told counsel she would also seek guidance from the other decisions cited by the Court in BDJ.[5] With respect, it was prudent and appropriate for the sentencing judge, seeking to inform herself as to the applicable range for the case at hand, to review recent decisions dealing with what appeared to be comparable cases.[6] Ordinarily, however, research of this kind should be undertaken by counsel, so that they can provide appropriate assistance to the sentencing court.

20 What is of particular significance for the present appeal is that the prosecutor made no submission of the kind advanced by the Crown on the appeal, namely, that the use of force was such a distinctive aggravating factor in incest cases that it could be seen to have produced a consistently higher band of sentencing to which the judge was bound to have regard. If the Crown had intended to characterise the present offending (as was subsequently done on the appeal) as distinguished by the use of force and the punitive nature of the respondent's treatment of his daughter, this would have provided a basis to argue for a relatively higher sentence than that imposed in BDJ. No such point was made, however, and no such argument was advanced. (I should add that it is by no means clear that such an argument would have succeeded in any case. Although BDJ did not involve coercion or force, it did involve significant aggravating factors which were absent from the present case, and the representative counts covered very protracted offending.)

21 For this reason, if (contrary to my view) the judge had made any error regarding sentencing range, it would have been the result of the manner in which the plea was conducted by the Crown. It would have been quite unfair for this respondent's sentence to be overturned, and increased, on the basis of an argument not put by the Crown on the plea.[7] For this reason alone, the Director's appeal had to be dismissed.

22 As will appear, however, I do not consider that the sentences here imposed were outside (that is, below) the range reasonably open in the circumstance of the case.[8] The appeal therefore failed on the merits.

Does the use of force attract higher sentences for incest?

23 As a matter of principle, it is uncontroversial that, in a case where the victim's consent is no defence, it will be an aggravating feature of the offending if the offender proceeds in the knowledge that the victim is not consenting or, worse still, uses force to achieve his/her sexual purpose. It is likewise uncontroversial that to force a victim to have sex 'to teach her a lesson' would be an aggravating factor.

24 Counsel for the Crown sought, however, to establish that under current sentencing practice, the use of force consistently attracted higher sentences - other things being equal - than if no force were used. In the course of submissions, he took the Court through nine decisions. Far from substantiating the Crown's contention, however, the decisions tended to confirm the submission advanced on behalf of the respondent - by reference to those and other decisions - that the sentences imposed here were not unusual sentences for incest even in a case with significant aggravating factors.

25 For the assistance of sentencing judges, I have assembled all of the decisions relied on by both the Director and the respondent in this appeal. Table 1 lists the cases in descending order of length of sentence. Table 2 lists the same decisions but with a particular focus on whether force or violence was used and, if so, what form it

26 Although this appeal by the Director failed, it does provide this Court with the opportunity to restate - emphatically - that in a case of incest (or other sexual offending against a child), the use of threats or coercion or actual force, and any punitive feature of the offender's motivation, should be regarded as very significantly increasing the offender's culpability for what is in any case a very serious crime. Such aggravating factors should be clearly reflected in the sentence imposed.

27 Whether there is a need for an increase in sentences for incest, above the level of current sentencing practice, in cases where force or violence is present is not a question which the Director sought to agitate on this appeal.

28 I joined with the President and Harper JA, at the conclusion of argument on the Director's appeal, in ordering that the appeal be dismissed. I did so for the reasons stated by Maxwell P.

29 I have had the advantage of reading in draft the reasons of Maxwell P for joining in the orders made by the Court at the conclusion of the appeal hearing in this matter. I agree with those reasons.

These offences were committed against your daughter (S). You had lived with her mother in a de facto relationship for about 17 years and had three children together. (S) is the eldest, [born in 1993]. The two younger children are boys.

These matters came to light after an incident on 31 October 2008 which was reported to police that night and following which (S) made a statement to police as to other events.

Charge 1 of incest represents an occasion of penile vaginal incest in 1999. The incident was described by (S) as occurring at [the family home]. She described it as an occasion when her mother had gone to the fish shop and you had taken her inside, she said on a pretext, having said you needed her help. She says you picked her up and carried her inside the house, lifted her up and asked her to reach for something off a shelf, then told her to lay down on the floor in her brothers' room and, she said, you put your penis inside her.

This description was given by her in a tape recorded statement to police on 1 November 2008. Her memory and description of this incident was limited. She was asked if she was about seven at the time and said yes. You denied there being any such incident when interviewed by police, and have not admitted any recall of it since, but in May last year you indicated a plea of guilty to this charge.

Argument arose during the hearing before me as to whether I should make a finding that it was more likely than not that this event occurred in 2000 rather than 1999, when (S) was aged seven and not six, her birthday being in late January. ... In the context of this case, it matters little whether she was six or seven years old at the time of this incident, but if I had to decide I would be inclined to find that she was seven. At either age, six or seven, the offence would be a gross violation of a young girl and an even greater betrayal of one for whose welfare you were responsible as her father.

Charge 2 is a representative charge reflecting three occasions of penile vaginal incest occurring at the family's home ... between 1 January and 31 October 2008.

The primary incident under this charge is the last occasion of offending, being the incident on the night of 31 October 2008, which was reported to police shortly afterwards. You and (S)'s mother had gone out, and (S) was home by herself, her brothers being elsewhere. You returned home alone not long afterwards. She heard your car pull up and she left the house by the back door and went to the neighbours. You saw her go and followed and told her to come home with you, saying that you needed her because you didn't have your keys. She says that you yanked on her to turn her around, and also grabbed her by the hair. Once back inside your house, you made her go to her room, told her to hurry up and take off her pants, and forced her to have sexual intercourse with you on the floor in front of the wardrobe. She was crying and screaming and telling you how low it was of you to do this to your daughter, and that this time she would definitely tell her mother. During the course of this you hit her with the back of your hand on the left side of her face, which is the basis of Charge 3 of common assault.

In telling of this event, she said she knew what was going to happen when she heard you arrive home because of what had occurred before.

Charge 2 is brought as representative of two other incidents of similar offending. One was on an occasion when a number of her friends had come over in your absence to the family house, but you returned and were angry at their presence, and they left. She says you ordered her to her room and had sexual intercourse with her. Secondly, this charge represents an incident occurring when her friend had come over and then left and which is again described in her interview with police as leading to you having sexual intercourse with her once done with her.

Charge 4 is another charge of incest reflecting one occasion of digital vaginal penetration occurring at the family's home, again alleged to be between 1 January and 31 October 2008, but in fact on the same night as the second incident of penile vaginal penetration represented by Charge 2. This was the night when she had had friends over who all left on your unexpected return. She says you demanded to know who was in the house or who ran out the back, that you then said to get to her bedroom, and what she describes occurring was, in her words, that you 'fingered her' first before penile penetration, by inserting your finger into her vagina. She says you did this because you were angry because she was home with friends and you asked whether she was sleeping with these boys.

At the time of all of the events of Charges 2, 3 and 4, she was aged 15. You were 31 by the last occasion; possibly 30 on count 4 and the earlier occasions that are part of the representative count.

All of these matters came to light following the incident of 31 October 2008 because as you were forcing her to return home with you from the neighbours house she had managed to call her aunt on her mobile phone, and her aunt heard (S) screaming before the call was hung up. Her aunt, her mother's sister, drove to your house shortly afterwards and saw your car driving away. She went inside to see (S), found the door locked and (S) crying hysterically, and eventually elicited that you had hit her and had been having sex with her. She rang (S)'s mother and then drove (S) to her own home, despite (S)'s mother saying that she didn't believe the accusation. (S)'s aunt reported the matter to police.

You were arrested and interviewed the next day. You at first said that there had been something that had happened only once on the bed in (S)'s bedroom, but there had been no penetration of her. Later in the interview, you admitted two incidents, one the previous night and one about a month earlier, in which you said that you were lying with her and had rubbed your penis up against her with her jeans and undies off, and you pulled your pants down to do that, and you said that you had ejaculated on the carpet but again denied that there had been penetration.

In relation to the events of the previous night, that is 31 October 2008, you said in your interview with police that, having driven your partner to the pokies venue, you suggested you return home to swap over cars to prepare for a trip the following day, but when you got home you realised that you did not have your keys, walked around to the side of the house and saw (S) going over the fence to the next door neighbours'. You said you followed her there to get her to come home to unlock the door. You admitted that you grabbed her by the hair because she went to run off and you needed her to unlock the door. You denied that you had sexual activity with her which included penetration. You agreed that she had screamed and told you, 'How could you do this to your own daughter?' and you admitted that you 'back-handed' her on the left cheek.

You were asked about her allegations as to previous times. You admitted coming home for your wallet on one occasion and finding (S) there with friends who were in the back yard and that, you say you 'virtually hit the roof' and sent them all on their way because you had not expected to find the house full of blokes. You denied the allegation of finger or penile penetration on that night. You denied an incident when her girlfriend stayed overnight. You denied an occasion when her mother had gone to the fish and chip shop.

As to the two occasions that you admitted, you said that you 'cannot fix' that, using words acknowledging that you knew you had done wrong. You denied that it was due to a sexual urge that comes over you. You said you had 'virtually' done it in spite because there was an issue with her of her not doing things or going out with the family. You said that you knew you had hurt her, 'probably even traumatised her for the rest of her life.' You volunteered that in your own words. This I take to be remorse as far as you could express it for what you had done.