DPP v DAK [2004] VSCA 175

10. The respondent, who, at the time of the commission of the offences concerned, was aged 42 years, pleaded guilty in the County Court at Melbourne on 6 July 2004 to five counts of incest committed against his three year old granddaughter.

13. He also admitted twelve prior convictions arising from four court appearances between 20 December 1993 and 4 December 2002.

16. As his criminal antecedents assume significance in the context of the present matter, it is, I think, desirable that they should be set out in some detail.

19. First, the respondent was convicted at the Magistrates' Court at Broadmeadows, on 20 December 1993, of the commission of an indecent act with a child under the age of 16 years, and on seven charges of wilful and obscene exposure in a public place. He was released on a Community Based Order for a period of twelve months on all charges.

22. He was next convicted at the same Magistrates' Court, on 14 November 1994. This also arose from his engagement in an indecent act with a child under 16 years. On that occasion a fine of $400 and a sentence of imprisonment for a period of three months was imposed. The Community Based Order previously mentioned, and to which he was still subject, was cancelled and he was sentenced to an effective term of one month's imprisonment for those offences.

25. The respondent appealed against these dispositions to the County Court and, on 23 March 1995, the sentences were varied so as to create an effective sentence of imprisonment for one month, the service of which was suspended for a period of 24 months.

28. On 7 September 1995, the respondent was sentenced to a fine of $250 on a charge of theft. That matter can be put to one side in the present context. More significantly, on 2 July 1996, he again appeared before the Magistrates' Court at Broadmeadows and was convicted of another offence of committing an indecent act with a child under 16 years. For that he was sentenced to a term of imprisonment for four months.

31. He was, in consequence, presented before the County Court, on 24 July 1996, for breach of the earlier imposed suspended sentence and a further period of suspension was ordered.

34. Finally, the respondent was convicted before the Magistrates' Court at Broadmeadows on 4 December 2002 of indecent assault. In distinction to his earlier conduct, the victim of that offence was an adult female. On this occasion he was released on a Community Based Order for a period of 18 months with a number of special conditions which included a requirement that he be assessed and participate, as directed, in an appropriate sex offender program.

37. Returning to the offences presently under consideration, after hearing the plea in mitigation of penalty the learned sentencing judge, on 7 July 2004, imposed a sentence of imprisonment of three years on each count. He directed that six months of each of the sentences imposed on counts 2, 3, 4 and 5 be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of five years' imprisonment in respect of which a non-parole period of three years was fixed. His Honour further declared that the respondent had been sentenced as a serious sexual offender.

40. As I have indicated, the Director of Public Prosecutions has appealed against the individual sentences imposed on the respondent, the total effective sentence and the non-parole period fixed on the ground that each is manifestly inadequate in the circumstances.

43. In support of this contention, reliance has been placed on assertions, set out as particulars in his Notice of Appeal, that the learned sentencing judge:

"(a) failed to adequately reflect the gravity of this offence [that is the offence of incest] generally and in this case in particular; (b) failed to take into account or sufficiently to take into account the aspect of general deterrence; (c) failed to take into account or sufficiently to take into account the aspect of specific deterrence; (d) gave too much weight to factors going to mitigation; (e) gave insufficient weight to the respondent's relevant prior criminal history;

(f) gave insufficient weight to the finding that the respondent is a paedophile;

(g) gave insufficient weight to the fact that the present offending occurred whilst the respondent was subject to a community-based order imposed for earlier sexual offending; (h) gave insufficient weight to the breach of trust inherent in the present offending; (i) gave insufficient weight to the fact that the respondent fell to be sentenced as a serious sexual offender on each of the five counts in question; and (j) gave insufficient weight to the applicable maximum penalty in relation to each count, being 25 years' imprisonment."

52. In March 2003 the respondent commenced to reside with his daughter, her partner and her two children, one of whom [L] was the victim of the various offences. He was at the time unemployed. This was the consequence of severe injuries sustained by him in a motor vehicle accident and which had ultimately become quite incapacitating.

55. It appears that, whilst living in his daughter's home, he was from time to time entrusted with the care of the children whilst their mother was at work. On such an occasion between 1 April and 8 April 2003, whilst L_'s_ mother was absent from the house, he was responsible for dressing the little girl. She removed her pyjamas in order to put on her day clothes and sat on a couch. In a subsequent police interview, the respondent told investigators that he asked her, "Do you want me to play with that?", indicating her vagina. He then rubbed her vagina with his fingers, telling her that it was "our secret" (count 1). He then penetrated her with his tongue (count 2).

58. Count 3 related to an incident, which took place between 17 April and 30 April, when the respondent placed his hand inside L_'s_ pants and rubbed her in the region of her clitoris with his fingers for what he described as "a couple of minutes".

61. At another time during the same period, he entered the child's bedroom at about 1 a.m. He awakened her, removed her pyjamas and crouched on her left side. He again rubbed her vagina with his fingers and penetrated what he referred to as "the clitoris area" (count 4). He then licked her vagina (count 5) and, whilst doing so, masturbated to ejaculation. He said that the child would not have seen this occur. He told L that she should keep these activities secret as "Poppy would get in big trouble and possibly go to gaol and that he wouldn't be able to see her for a little while".

64. His explanation to the police for committing these offences was "I haven't had any female companionship for a long time now and that's it and she jumped up on the couch and spread her legs and why she did that I don't know." I also observe in this context that in the report of a psychiatrist, Dr Newlands, tendered on behalf of the respondent in the court below, the following passage appears:

"In discussing the offences he stated that his offending usually occurred when he had little money, was 'bored' and had 'nothing to do'. These were the circumstances he felt were active at the time of his offending against his grandchild."

68. In the same report, Dr Newlands expressed the opinion that:

"[The respondent] presents with a symptom profile indicative of paedophilia. As such, he gives a history of recurring behaviours involving sexual activities with prepubescent children. He admits masturbating while engaging in such activity and of feeling quite a `thrill' at the time and for a period thereafter. He did not experience the same excitement when touching an adult female."

72. A little later in that report, Dr Newlands stated:

"In exploring with him, his perception of the offending, it would seem that he still had some cognitive distortions evident. For example, he describes the three year old child, as agreeing to sexual activities with him, and indeed, of coming up to him and seeking it. Whilst acknowledging that his actions were wrong, he does not appear to have any empathy for his young victim."

76. It would appear to be clear, on the basis of his conduct, his own statements and this assessment, that the respondent possesses very strong paedophilic tendencies and represents a continuing danger to young persons. Although it would appear that various endeavours have been made to address this issue, including participation in a sex offender program, Dr Newlands also considered that there would seem to have been minimal, if any change, in the respondent's thought processes with respect to such conduct.

79. A similar view was formed by a psychologist, Dr Jennifer McCarthy, in a report tendered in the Court below. Dr McCarthy also expressed some concern about the potential for escalation in the respondent's offending behaviour.

82. As I earlier indicated, the respondent was at the time of the commission of these offences 42 years of age. His background was unfortunate, with his early years marred by experiences of sexual abuse both of himself and within his family. He witnessed his father abusing his sister on a number of occasions. His older brother abused his (the respondent's) daughter and the respondent was also subjected to such abuse by two persons, neither of whom, however, was a family member.

85. His father was a member of the Royal Australian Air Force and as a consequence, the respondent attended several primary schools as a child. Despite this, he reported to the psychologist, Dr McCarthy, that he performed reasonably well at school. He left school after completing Year 10 in order to secure employment. He denied experiencing any learning problems and reported good peer relationships.

88. After leaving school, he worked in a number of semi-skilled jobs until he commenced work as a truck driver. This remained his primary occupation until 1993 when he was involved in two accidents resulting in significant injuries to his shoulder and back. He continued, however, to perform some work as a truck driver, although not continuously, until he moved to Sydney in 1998 and commenced his own transport business. He was obliged to give up that activity in 2000 due to physical difficulties related to his earlier accidents. He married at the age of about 20 years and that marriage persisted for approximately 13 years until he was imprisoned in 1996. It has not been suggested that he suffers from any psychiatric disability and he has been described by Dr McCarthy as appearing to be of low average intelligence.

92. The principals applicable to the consideration of a Crown appeal against sentence are well known and do not require recitation in this judgment. They are set out in the judgment of Charles, J.A. in R v. Clarke[1] and have, of course, been applied on numerous occasions in this Court.

95. Mr McArdle, who appeared on behalf of the Director, submitted that the offences committed by the respondent must be regarded as extremely serious when their nature, the particular conduct involved, the circumstances under which they were committed, including the gross breach of trust and abuse of his relationship with the child and her mother, and the respondent's criminal history are taken into account. With respect to the last matter, Mr McArdle emphasised the fact that the respondent had appeared before courts for the commission of sexual offences on four separate occasions and that three of them related to offences against children. He had, it was contended, been dealt with extremely leniently and afforded more than one opportunity to avoid incarceration. However, he commenced to offend against L within a few months of his appearance before the Broadmeadows Magistrates' Court for the indecent assault of an adult female and during the period of a community-based order which required him to participate in an appropriate sex offender program.

98. It was a further circumstance of aggravation, Mr McArdle quite appropriately submitted, that the offences were committed against a very young child and that situation was worsened by his attempt to secure her silence by employing a form of moral blackmail, in effect inducing a concern in the little girl that she would be responsible if he were punished.

101. When all of the circumstances are taken into account, Mr McArdle contended, the individual sentences imposed were clearly inadequate and nor could the total effective sentence be seen to reflect the seriousness of the conduct in which the respondent had engaged.

104. On behalf of the respondent, Mr Morrissey submitted that, although the offences committed by his client were undoubtedly serious, there were not present, in this case, a number of the features of aggravation with which the Court is unfortunately too familiar in cases of the sexual abuse of children by parents or grandparents. In particular, he submitted that they were committed within a relatively short time frame and were not attended by violence or some other degrading behaviour. The sentencing judge cannot be taken, the argument continued, to have undervalued their seriousness in a case where the respondent admitted responsibility in a full and frank fashion when confronted by the police and pleaded guilty to the charges laid against him. The sentencing judge was well aware of the respondent's paedophilic tendencies and of the possibility of a future escalation in the seriousness of his offending, it was said. These matters were clearly taken into account by his Honour, Mr Morrissey submitted, and the sentences, although lenient, could not be regarded as manifestly outside the range of dispositions available in the circumstances.

107. I disagree. In my opinion, the individual sentences and the total effective sentence imposed upon the respondent were so far below what was required in the proper exercise of the learned judge's sentencing discretion in this case that intervention is necessary.

110. Well aware of the criminal seriousness of what he was doing, the respondent on three separate occasions subjected his very young and totally unaware victim to abuse, the real significance of which will not become apparent to her for some years. At this stage it is simply not possible to estimate what the ultimate damage might be. He breached the trust reposed in him by his daughter and he conducted himself in this fashion during a period in which he was fortunate to be at large in the community, having been given the benefit of a third non-custodial sentence for sexual offences.

113. As Ormiston, J.A. pointed out in the course of the hearing, the Court has repeatedly emphasised that the crime of incest committed against young persons is viewed very seriously indeed and perpetrators must anticipate that, save in the most unusual of circumstances, substantial terms of imprisonment will be imposed. The underlying rationale for this approach, which is designed to protect potential victims and to punish and deter those minded to engage in such conduct, was expressed by Hedigan, A.J.A. in R v. Ware[2] as follows:

"A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim."

118. In the present case, not only are those considerations applicable, as the victim impact statements before the Court demonstrate, but the respondent's history of repeated offending of a sexual character elevate the significance and specific deterrence and the protection of the public as sentencing considerations in this case.

121. I would allow this appeal, set aside the sentences imposed in the Court below and, moderating the sentences to be substituted by reason of the necessity to have regard to the principle of double jeopardy, re-sentence the respondent to five years' imprisonment on each count. I would order that six months of the sentence imposed on each of counts 2 to 5 be served cumulatively upon each other and upon the sentence imposed on count 1. That would create a total effective sentence of seven years' imprisonment in respect of which I would fix a non-parole period of five years. I would, of course, also confirm the declaration that the respondent had been sentenced as a serious sexual offender.

136. The orders of the Court, therefore, are as follows:

2. That the sentences and orders of the judge in the County Court be set aside; and that in substitution for those sentences and orders there be the following orders and sentences:

1. That the respondent be sentenced to five years' imprisonment on each of counts 1 to 5; 2. The Court directs that all but six months, namely four years six months, of each of the sentences imposed on counts 2-5 be served concurrently with the sentence on count 1 and on each other, that is, in effect, that six months of the sentence imposed on each count be served cumulatively on the term imposed on count 1.

142. The Court declares that the total effective sentence is seven years' imprisonment. The Court orders that the respondent serve a period of five years before becoming eligible for parole.

145. The Court confirms the order made in the County Court that the prisoner be sentenced as a serious sexual offender and further the order made with respect to the taking of a forensic sample.

148. The Court will make the customary declaration, and order it be entered in the records of the Court, to the effect that 74 days has been served to the present day.

[1] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[2] [1997] 1 V.R. 633 at 653.