DPP v D Z [2009] VSCA 301

1 The respondent pleaded guilty in the County Court to three counts of maintaining a sexual relationship with a child under 16.[1] The victims of the offences, SAS, SAM and SK, were the daughters of the respondent's de facto wife. The maximum penalty for the offence of maintaining a sexual relationship is 25 years' imprisonment.

2 After hearing a plea in mitigation of sentence, the learned judge sentenced him as follows:

3 This amounted to a total effective sentence of 12 years' imprisonment. His Honour ordered that the respondent serve a non-parole period of 9 years and that he be sentenced as a serious sexual offender in relation to count 3, pursuant to Part 2A of the Sentencing Act 1991.

4 The Director now appeals against the individual sentences, the total effective sentence and the non-parole period. There are two grounds of appeal. The first ground claims that the sentence is manifestly inadequate and the second claims that the learned sentencing judge erred in treating each of the three counts as representative counts. We deal with the second ground first.

5 In his sentencing remarks the learned judge said that the offender had been presented on three counts, 'which by their very nature, are representative'.[2] He continued as follows:

So there is no misunderstanding, I must tell you that the sentence I impose on each count must relate only to the specific offence charged. A representative count enables that offence to be seen in its full circumstantial context. I quote from the case of R v SBL [1998] VSCA 144; [1999] 1 VR 706, where Mr Justice Batt said, 'A representative count enables the offence to be sentenced in its full circumstantial context. An offender is not, by loading of the sentence, to be punished for the representative offences but that sentence for the representative offence may reflect the fact that it appeared in a wide context. Regard may be had to the adverse effects upon the victim of the whole conduct.' Mr Justice Ormiston in the same case said, 'In other words, the whole of the circumstances relating to each count must be given proper effect and recognition for the purposes of imposing a just sentence, paying due regard to the recognised principles of proportionality and totality.'

Not only must I not load the sentence in respect of the representative count by sentencing for a representative count, but I must not sentence twice for the same offence. It is also interesting to note what fell from Mr Justice Vincent in a recent case, that being R v Walsh [2005] VSCA 285, he endorses the comments made by Mr Justice Batt and Mr Justice Ormiston.[3]

6 Counsel for the respondent submitted that although his Honour had wrongly described counts 1 to 3 as representative counts, there was no practical difference between sentencing an offender for a representative count of a sexual offence and sentencing an offender for the offence of maintaining a sexual relationship. In support of that contention he relied on a comment made by Winneke P in R v GJB[4] to the effect that a particular count in the presentment in that case was representative of many acts of digital vaginal penetration, which could in themselves have supported an offence of maintaining a sexual relationship.[5]

7 Counsel for the Director submitted that his Honour had erred in describing the offence of maintaining a sexual relationship created by s 47A of the Crimes Act 1958 as equivalent in effect to a representative count of a sexual offence, which 'enables that offence to be seen in its full circumstantial context'.[6]

8 The Director's submission was clearly correct. By pleading guilty to the offence of maintaining a sexual relationship the offender admitted to having, during the specified period, committed a sexual offence under Subdivision 8A or 8B of Part 1 of the Crimes Act 1958 and to having committed at least two other acts which would be offences under those Subdivisions. The essence of the offence is the persistence of the sexual abuse over time and this is reflected in the maximum penalty of 25 years' imprisonment which applies to it.

9 By contrast, an offender who is sentenced on a representative count is sentenced for that particular offence even though it may disclose that the offender committed other offences of the same kind.[7] The maximum penalty is the one which applies to that offence. The fact that the offence is 'representative' prevents the offender from claiming that the incident was an isolated incident of wrong doing and permits the sentencing judge to look at the 'whole picture' presented by the circumstances in which the offence occurred.

10 The remarks of Winneke P in R v GJB[8] on which counsel for the respondent relied, do not assist the respondent. The issue in that case was whether a presentment could include both individual counts of offences occurring over a specified period and a count of maintaining a sexual relationship, covering other offences occurring in the same period. It was held that that it was not permissible for the Crown to particularise some of the sexual offences in support of the count alleging the maintenance of a sexual relationship and to also present the offender on counts alleging individual offences occurring within the same period as well.[9] As Winneke P said, the facts relied upon by the Crown in relation to a representative count might in some circumstances be sufficient to have supported a conviction for the s 47A offence. However that does not mean that a representative count is, in effect, the same as the offence under s 47A.

11 Because ground 2 is made out it is unnecessary to consider ground 1 and the offender must be re-sentenced. It will be apparent from our reasons below that we also consider that the sentence imposed on the respondent was manifestly inadequate.

12 The respondent is now 46 years old. He was aged between 39 and 42 at the time of offending and was 44 at the time of sentence. He lived in an on and off de facto relationship with CR, the mother of his victims, which commenced in 1999 and continued until 2006. He was married to another woman and had three children in that relationship. When the offences against the three victims were taken into account the total period of offending was about 3 years 9 months, commencing in about January 2003 and ending about October 2006.

13 The circumstances of the offending and the particular offences relied upon in support of the offence under s 47A are set out in his Honour's reasons. They can be summarised as follows.

14 SAS was aged between 11 and nearly 15 during the three year and nine month period when she was abused by the respondent. The respondent offended against her in her bedroom, in the lounge room of her home when her mother was out and in his car when he took SAS on shopping trips. The sexual acts began with the offender touching the girl's breasts and forcing her to masturbate him. They progressed to penile/vaginal penetration. SAS said that she resisted the respondent but that he was too strong for her and that she suffered pain and discomfort and cried when she was being sexually penetrated. On two occasions SAS thought that the respondent had used condoms when penetrating her.

15 SAM was 11 when the respondent began abusing her in late 2004 and his sexual assaults continued until she was 13. The offending occurred over about 1 year and 9 months. The first incident occurred when he came into her bedroom and digitally penetrated her. On this occasion she told him he was hurting her but he persisted. Another incident involved the victim being forced to fellate the offender until he ejaculated. On another occasion he picked her up from school and took her home, where he required her to take her clothes off and made a video of himself penetrating her vagina with his penis. She told him she did not want to take her clothes off and that he was hurting her, but he continued to have intercourse with her. When he stopped her told her 'It's our little secret, don't tell anyone.' He later required her to view the video on his computer and refused to delete it as she had requested.

16 SK was 10 years old and in her case the offences occurred over a five month period between May 2006 and October of that year. SK described the first incident of abuse as occurring when she was asleep on a couch in the lounge room. The offender put his penis in her mouth and ejaculated. She described occasions when the offender tried to force her to masturbate him and when he forced her to fellate him. In July and August 2006 the offender digitally penetrated SK on a number of occasions and between May, July and August he anally and vaginally penetrated her with his penis, and also inserted his tongue into her vagina. She suffered pain and bleeding as the result of the vaginal penetration on that occasion. Counsel for the Crown described 16 incidents over the five month period that SK was abused with many of these incidents involving several different sexual acts. The respondent ceased offending against SAS and SK on 4 October 2006, shortly before SK complained to her mother.

17 The offences were committed while CR was away from home and involved multiple acts of digital, anal, oral and vaginal penetration.[10] There were what the learned judge described as 'incidents in incidents', meaning that there were 'numerous offendings occurring in each one specific incident'.[11] The acts caused the victims much pain and discomfort and often caused them to cry. The respondent often used physical force to overcome the victims' attempts to prevent him from performing the acts and the victims were described as being angry at the respondent. The judge also referred to the humiliation that SAM would have felt at watching a video tape of the respondent offending against her.[12] It is not going too far to describe the 'relationship' the respondent had with his victims as being one involving multiple frequent and regular rapes.

18 Each of the girls and their mother filed victim impact statements. The mother referred to her difficulties with the girls, because the whole family was angry and upset. She said that she had had to sell her house, because they were constantly reminded of what happened in it. Both SAS and SK spoke of the profound effect the abuse had had upon them. SK said she had had to move school several times and that her relationship with her mother, her sisters and her mother's new boyfriend had been 'messed up' and her relationship with her father had become complicated. SAS gave a detailed list of the effects of the abuse on her. His Honour commented that:

I have never seen such a victim impact statement in my experience. It can be seen ... that [SAS's] emotional state has been a roller coaster ride stretching from anger, frustration and fear, fighting with loved ones and leading to tears, depression and a lack of self-worth.[13]

19 In her victim impact statement SAM said '[I] [d]on't want to write this because it is too difficult to do so'. She is said to be responding positively to counselling.

20 The respondent was born in Croatia and came to Australia when he was about six years old. He married when he was 22, and has three sons with his wife aged 17, 15 and 10. His Honour noted that his wife, three sons and parents remain supportive of him.

21 The respondent was in steady employment from the time that he left school until he was arrested for these offences. The sentencing judge took account of nine references provided by friends and acquaintances. All of the referees said that he had expressed remorse and that he had revealed his offending to his friends and family. A reference provided by the principal of the respondent's sons' school, spoke of the respondent's use of his metal-working skills to assist the school by making equipment.

22 The respondent had a number of consultations with Jeffrey Cummins, a clinical and forensic psychologist. A psychological report dated 17 June 2008 prepared by Mr Cummins said that the respondent sometimes lived with his wife and sometimes with the girls' mother and that he had admitted that he had abused SAM when she had been left in his care and was, effectively, acting as her step-father. Mr Cummins said that:

He states he formed an extra-marital relationship with [CR] under circumstances where he was feeling emotionally rejected and sexually rejected by his wife, who, throughout, has maintained her support for him and still maintains her support for him and still visits him twice per week in custody.

[DZ] is unable to offer any explanation for why he became sexually attracted to the victims. He does, significantly, state he became specifically attracted to [SAM]. He states although he sexually abused the other two victims he was not aware of feeling specifically sexually attracted to them. He stated he has never felt sexually attracted towards any other underage or pre-pubescent females. He states he has never felt sexually attracted to any pre-pubescent or underage males.

Given the age of the victims and given [DZ's] age, his offending behaviour would meet the criteria for paedophilia (DSM-IV-TR, code 302.20). In my opinion he would also be diagnosed as being a hebephile - being someone who was sexually attracted to persons who were under the legal age but post-pubescent or at least just pubescent.

In my opinion [DZ] would be assessed as someone whose risk of reoffending is such that he must complete a sexual offender treatment program. He states he would never re-offend and he acknowledges he breached the trust of the victims and of their mother and their father. In my opinion, because of the duration of the offending and because there are three victims, and because at the time [DZ] is unable to offer any specific explanation for this offending other than the fact he did feel specifically sexually attracted to one of the victims - it is my opinion there remains a tangible risk he could reoffend in the absence of receiving appropriate treatment.

23 Counsel for the Director submitted that the Court should impose significantly higher sentences on the individual counts and the total effective sentence than those imposed by the judge below, in order to give adequate weight to general and specific deterrence and denunciation. He referred to aggravating features of the offending, including the fact that each of the victims was only 10 or 11 when the abuse began, the 'egregious breach of trust involved' and the period over which the offending took place.

24 Counsel for the respondent made submissions about sentence in the context of ground of appeal 1, which also have some relevance to the exercise of the re-sentencing discretion. He submitted that the individual sentences, the total effective sentence and the non-parole period imposed were all within range. In support of that submission, he relied on the Sentencing Snapshot for the years 2003-4 and 2007-8 produced by the Sentencing Council of Victoria.[14]

25 He also referred to counsel for the Crown's statement at the plea hearing that DZ should be liable for minimum and maximum terms of imprisonment 'in the vicinity of double figures ... in terms of years' in circumstances where DZ did receive a total effective sentence of an amount in double figures.

26 He relied on the respondent's lack of prior convictions, remorse, guilty plea, and strong work ethic and submitted that he had good prospects of rehabilitation.

27 He said that some weight should be given to the statement in Mr Cummins' report that the respondent was 'exhibiting symptoms of anxiety and depression'.

28 In our opinion the gravity of the offending in this case and the principles of general and specific deterrence require the imposition of very substantial sentences on the individual counts. We note that in Director of Public Prosecutions v DDJ,[15] an offender who pleaded guilty to maintaining a sexual relationship with a child under 16 years was re-sentenced to a period of 7 years' imprisonment.[16] In that case the victim was 14 years old and the respondent engaged in almost continuous sexual abuse of her throughout a five month period. Like the offender in this case, he made a pornographic video of the offending, although in this case the offender was not charged with any offence arising out of the making of the video. The range of sentences imposed for maintaining a sexual relationship with a child under 16 in 2007 and 2008 is set out in a table appended to the reasons in Director of Public Prosecutions v DDJ.

29 In this case the offending began when the children were aged only 10 to 11 years and the offending persisted over a lengthy period. A number of the acts were accompanied by threats of force or other forms of coercion. The offender was in a relationship of trust. He himself conceded that in effect he played the role of step-father to the girls. In her VATE tape, SAM said that she had looked up to the respondent 'as my dad'.

30 The respondent will be re-sentenced following a successful Director's appeal. He is accordingly, entitled to have the fact that he has already been sentenced for these crimes taken into account in his favour on the double jeopardy principle.[17] He will be required to undergo a significantly increased sentence both as to his total sentence and the non-parole period. The increase would have been even higher but for that principle. If it were not for his guilty plea[18] and the double jeopardy principle, we would have sentenced him to a total effective sentence of 16 years' imprisonment. We re-sentence the respondent as follows:

31 The different individual sentences reflect the period of offending and in the case of count 2, the videoing of the offending, which was a significant aggravating circumstance. Count 1 is the base sentence. Three and a half years of the sentence imposed on count 2 and 2 and a half years of the sentence imposed on count 3 will be cumulated on the sentence imposed on count 1. On count 3 the respondent falls to be sentenced as a serious sexual offender. This amounts to a total effective sentence of 14 years' imprisonment. We fix a non-parole period of 11 years' imprisonment.

[1] Under s 47A of the Crimes Act 1958.

[2] (Unreported, County Court of Victoria, Judge Pilgrim, 18 July 2008) ('Reasons'), [45].

[4] [2002] VSCA 54; (2002) 4 VR 355.

[7] DPP (Vic) v Muliaina [2005] VSCA 13, [22] (Chernov JA).

[8] [2002] VSCA 54.

[9] The offences could have been charged in the alternative.

[10] For example, the respondent committed six acts of penile penetrations, 13 acts of digital penetrations and 11 acts of masturbation or indecent rubbing against SK.

[14] Sentencing Advisory Council, Sentencing Trends in the Higher Courts of Victoria 2003-04 to 2007-08: Maintain a Sexual Relationship with a Child Under 16, No 82, June 2009.

[15] [2009] VSCA 115.

[16] The offender was also sentenced to 3 years' imprisonment on a count of producing child pornography. One year of that sentence was ordered to be served cumulatively with the 7 year sentence, making a total effective sentence of 8 years' imprisonment.

[17] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA).

[18] Sentencing Act 1991, s 6AAA.