DPP v DJS [2003] VSCA 9

Court of Appeal (Vic)|2003-02-26|Before: PHILLIPS, C.J., PHILLIPS, J.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Sentencing - Sexual penetration with a child under 10 - Indecent acts - Incest - Producing child pornography - Six victims aged between four years and ten years - Offences committed by a natural father and step-father between 1985 and 2001 - Worst case category - Respondent sentenced as a serious sexual offender on 37 counts - Individual sentences manifestly excessive - Inadequate cumulation - Sentence of twelve years' imprisonment with non-parole period of nine years increased to sentence of sixteen years with a non-parole period of thirteen-and-a-half years.

The respondent was born in August 1958. On 3 June 2002 he pleaded guilty to 39 counts of sexual offending committed between 1985 and 2001 when he was aged between 26 and 44 years. He admitted two prior convictions for accosting for homosexual purposes in 1980 and indecent behaviour in 1984. Six victims of the offending will remain anonymous save for the use of an initial. They are all related to the respondent: a natural daughter and a natural son by his first wife, a natural daughter and a natural son by his second wife, his second wife's daughter and son from another relationship. These six children were born between 1981 and 1994.

The counts included 6 counts of sexual penetration with a child under 10, 2 counts of indecent assault, 2 counts of gross indecency, 1 count of attempted sexual penetration with a child under 16, 8 counts of indecent act with a child under 16, 4 counts of indecent act in the presence of a child under 16, 13 counts of incest, 1 count of attempted incest, 1 count of producing child pornography and 1 count of being in possession of child pornography. A number of counts were laid as representative counts.

The maximum penalty prescribed by Parliament for:

(i) Sexual Penetration with a child under 10 is 20 years.

(ii) Indecent Assault is 5 years.

(iii) Gross indecency is 3 years.

(iv) Attempted sexual penetration with a child under 16 is 20 years.

(v) Indecent Act with a child under 16 is 10 years.

(vi) Indecent Act in the presence of a child under 16 is 10 years

(vii) Incest is 25 years.

(viii) Attempted incest is 20 years

(ix) Producing child pornography is 10 years.

(x) Being in possession of child pornography is 5 years.

The brief description of the facts in Annexure A attached to this judgment will starkly reveal sexual depravity of the highest order deserving condign punishment. The respondent's misconduct was revealed on or about 1 September 2001 when A informed her mother about the pornographic material she had seen on her stepfather's computer. The respondent's wife informed the police and an investigation commenced.

Counts 1 to 7 involve S the natural daughter of the respondent by his first wife. Sexual misconduct which included sexual penetration (4 counts), indecent assault (2 counts) and gross indecency (1 count) first occurred when S was aged 4 years and continued until she was about 10 years. These seven counts cover a variety of sexual misconduct.

Counts 8 to 18 involve C the natural son of the respondent by his first wife. Sexual misconduct included sexual penetration (2 counts), attempted sexual penetration (1 count), committing an indecent act (4 counts), incest (3 counts) and attempted incest (1 count). The first act of sexual penetration occurred when C was about 4 years of age. These counts cover a variety of sexual misconduct.

Count 19 involves A the stepdaughter of the respondent. A grossly indecent act was committed by the respondent in the presence of A when she was aged 8 or 9 years.

Counts 20 to 24 involve E the stepson of the respondent. Sexual misconduct included incest (2 counts) and indecent acts (2 counts) when E was aged about 6 years.

Counts 25 to 33 involve K the natural daughter of the respondent by his second wife. Sexual misconduct included incest (5 counts) and indecent acts (3 counts), commencing when K was aged about 4 years.

Counts 34 to 37 involve J the natural son of the respondent by his second wife. Sexual misconduct included incest (2 counts) and indecent acts (2 counts). J was aged about 4 years when the offending commenced.

Count 38 involved the respondent producing child pornography and Count 39 involved the respondent being in possession of child pornography.

An examination of Annexure A will show that in respect of victim S the highest sentence imposed was 5 years for sexual penetration with a child under 10 and that no cumulation order was made. In respect of victim C the highest sentence was 4 years for incest and 2 years of the sentence imposed on count 12 was ordered "to be served cumulatively on the previous imposed sentences". In respect of victim A a sentence of 6 months was imposed for gross indecency and the whole of the sentence of 6 months was ordered "to be served cumulatively on the previously imposed sentences". In respect of victim E the highest sentence was 4 years for incest and 2 years of the sentence imposed on count 21 was ordered "to be served cumulatively on the previously imposed sentences". In respect of K the highest sentence was 5 years for incest and 2 years of the sentence imposed on count 25 was ordered "to be served cumulatively on the previously imposed sentences". In respect of J the highest sentence was 5 years for incest and 6 months of the sentence imposed on count 35 was ordered "to be served cumulatively on the previously imposed sentences". No cumulation was ordered in respect of the child pornography counts 38 and 39. It is implicit in the sentences imposed that all sentences were to be served concurrently save as otherwise specified.

His Honour expressed cumulation in an unusual way. However, we think he meant that the specified portion of the sentence imposed on counts 12, 19, 21, 25 and 35 should be served cumulatively on each other and on the sentence of 5 years imposed on count 7. Thus, a total effective sentence of 12 years was produced. A minimum term of 9 years was fixed before parole.

The plea material before the judge included Victim Impact Statements from each victim and from the respondent's current wife. They speak of immense emotional trauma, stress, bad memories and mental flashbacks. They make very depressing reading and reveal the difficulties each victim now experiences in life, particularly in the area of sexual relationships. Mr. B. Healey, a psychologist, saw the respondent in October 2001 and June 2002 and provided two psychological reports. There is nothing remarkable revealed in his reports but curiously Mr Healey never confronted the fact that the respondent was a paedophile. Intellectual testing revealed superior capacity. Personality testing was not indicative of major psychological disturbance. The respondent told Mr Healey that he was sexually abused as a child and interested in wearing female clothing from an early age. Paraphiliac behaviour and deviant sexual practices featured in his life over many years. Mr Healey reported: "He remains ambivalent about his own sexual identity, but obviously became more comfortable in sexual expression with children who were less resistant to his persuasions." Nevertheless, he married twice and had children with both wives.

Mr. Healey said in evidence that the respondent's prospects of recovery were "fair" but he also considered that the respondent would be a risk to the community for a long time.

In the sentencing remarks the judge detailed the nature of the offending in every count. Annexure A contains a brief description of each offence provided by the appellant which will suffice for the purposes of the appeal and, as already mentioned, the offences were committed against children who were very young indeed when the respondent commenced offending against them. The judge said that he agreed with the prosecutor's submission that the length of time that the offending went on; the fact that it included all of the respondent's children both natural and stepchildren; and the width and depth of his depravity towards them "put this case into the worst category of its type".

The Director of Public Prosecutions filed notice of appeal on 18 July 2002 on five grounds:

1. That the total effective sentence and non-parole period are each manifestly inadequate.

2. That in fixing the total effective sentence and the non-parole period the learned sentencing judge -

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to have regard or sufficient regard to the need for just punishment;

(c) failed to take into account or sufficiently to take into account the aspects of both specific and general deterrence;

(d) gave too much weight to the matters going to mitigation.

3. That the sentences imposed in respect of Counts 1, 3, 5, 7, 8, 9, 10, 12, 13, 15, 16, 21, 22, 25, 26, 28, 29, 30, 31, 35 and 36 are each manifestly inadequate.

4. That the learned sentencing judge failed to appropriately apply the principles applicable to serious sexual offences as set out in Part 2A of the Sentencing Act 1991.

5. That as a result of the failure adverted to in Ground 4 the orders for accumulation are inappropriate and inadequate.

In a written submission the Director contended that many of the individual sentences, the total sentence and the non-parole period are manifestly inadequate. He also submitted that the orders for cumulation are inappropriate and inadequate.

The Director further contended that the conduct of the respondent involving six young children, four of whom were his children and two of whom were his stepchildren over a period of more than sixteen years was amongst the worst cases of its kind to come before the courts. It cannot be gainsaid, in our opinion, that the conduct described in detail by the judge in his reasons for sentence is abhorrent to every right-thinking member of the community.

The Director referred to the respondent's prior convictions for sexual offending in 1980 and 1984 to point out that he was not deterred from further offending between January 1985 and continuing to August 2001.

A substantial argument was advanced by the Director in his written submission that the total effective sentence of 12 years with a non-parole period of 9 years did not adequately reflect the number of victims, their tender ages, the time over which the offending occurred, the threats and inducements associated with the offending, the respondent's position of trust, influence and power over the victims and the grave nature of the offending. In oral argument the Director submitted that the sentencing judge appears to have taken the view that a total sentence of 12 years was as far as he could go.

The Director submitted that the individual sentences were inadequate, particularly since the majority of the counts are representative.

The Director submitted that notwithstanding there was multiple offending and wide-ranging conflict over a considerable period of time in respect of five of the children (S, C., E, K and J) there was no cumulation of any of the sentences in relation to any single victim. Hence, the seven counts involving S produced a total sentence of 5 years; the 11 counts involving C produced a total sentence of 4 years; the five counts involving E produced a total sentence of 4 years; the nine counts involving K produced a total sentence of 5 years and the four counts involving J produced a total sentence of 5 years. The Director argued that J was only 7 years of age at the time of the sentence and the offending against him was arguably the most serious.

Finally, the Director asked the Court to consider the sentences imposed on counts 1 and 7, 4 years and 5 years respectively, and to note that the conduct involved in count 7 was much worse than the conduct in count 1, and with respect to Count 7, the respondent was a serious sexual offender.

Reliance was placed by the Director on the decision in this Court in D.P.P. v. B.A.B.[1] In that case twin stepdaughters of the respondent were the victims of four counts of rape, malicious wounding and incest when they were aged between 11 and 15 years. The maximum penalty was then 20 years for rape and incest. There was a period of 20 years delay after the offending before charges were laid.

In B.A.B. a total sentence of 6 years' imprisonment was imposed in the County Court in the case of one of the twins and 5 years' imprisonment in the case of the other. With cumulation the total effective sentence was 8 years. This Court found that the sentencing judge erred in imposing manifestly inadequate sentences, in particular for the rape counts, and in failing to make orders for cumulation to produce a total effective sentence reflecting the overall seriousness of the offending. The Court upheld the Director's appeal and re-sentenced the respondent to a total effective sentence with respect to each twin of 10 years, two years of the sentence imposed with respect to one twin was ordered to be served cumulatively upon the total sentence imposed with respect to the other twin. By this route a total effective sentence of 12 years was arrived at.

In a written submission Mr. Tehan submitted that it is evident from the sentencing remarks that the judge properly took into account all matters in aggravation and mitigation of penalty and made no error of law or fact. He correctly submitted that in relation to Crown appeals the Court should not interfere with a sentence unless there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.[2] He further submitted that the individual sentences imposed by the judge were not wholly outside the range of sentence open to the judge.

Mr. Tehan submitted that the question is whether the total effective sentence is manifestly inadequate such as to constitute error in principle or to lead to inconsistency in sentencing standards. The question in the end, he argued, was whether the total effective sentence is just and fair, no matter how it was constructed.[3]

Mr. Tehan submitted in writing and orally that the early guilty plea was made to avoid the family being put through the distress of a trial and is a matter of special importance in sexual abuse cases, particularly those involving children.[4] Further, he said, the judge accepted the remorse indicated in the early plea of guilty. Other matters, such as the respondent's work record as a builder and past good character were relevant to sentencing. Mr. Tehan submitted orally that the common features of incest include breach of trust and offending over a lengthy period. Present in some cases, such as B.A.B.[5], Mr. Tehan said, is a level of violence either threatened or actual. The respondent informed Mr. Healey that he denied using force on any of the children and said that "if he encountered any resistance on the part of the children he would discontinue". It is indeed fortunate that the children were not physically abused or verbally threatened, but against that it must be noted that the children were very biddable on account of their age and innocence and money was used to secure compliance in some instances.

Mr. Tehan submitted that the individual sentences for incest which were between 3 years and 5 years were not wholly outside the range open to the judge and not, therefore, manifestly inadequate. He illustrated his argument by reference to authority[6] but every case depends on its own facts and, as we have already indicated, this is a very bad case indeed.

Mr. Tehan submitted that the total effective sentence was within range and not manifestly inadequate and there had been adequate cumulation.

Annexure A demonstrates all too plainly the serious character of the offending involving six young children in the care of the respondent as a father and stepfather. We agree with the Director that the sentencing discretion miscarried in the court below because individual sentences were manifestly inadequate in many of the sexual penetration and incest counts and did not adequately reflect the gravity of a father/stepfather violating repeatedly the children entrusted to him. We do not consider that the cumulation orders, in the circumstances, reflect the overall seriousness of the offending in respect of the victims. In the case of A, one of two victims of count 19, the sentence of 6 months was manifestly inadequate.

Grounds 3, 4 and 5 may be considered together. After convictions were recorded on counts 1 and 2 the respondent became a serious sexual offender save as to counts 38 and 39. There was never any argument in the sentencing court that a sentence of imprisonment was not justified. Consequently, the Court was required by s.6D of the Sentencing Act, in determining the length of that sentence, to regard the protection of the community from the offender as the principal purpose for which the sentence was being imposed.

We consider that the sentencing judge did not have sufficient regard to protection of the community from the respondent as the principal purpose for which the sentence was imposed. The respondent is 44 years of age and could be sexually active for 20 years or more. His conduct stigmatises him as a paedophile. Mr. Healy recognised that he "would be a risk to the community for a long time". The judge stated that given the respondent would not have the opportunity to commit further crimes against his children and his desire to rehabilitate himself specific deterrence was not as significant a factor as general deterrence. Nowhere in his sentencing remarks did the judge advert to the risk that in the future the respondent might prey upon young children outside his family circle and of the need, therefore, to protect the community from him.

Sentencing guidelines relevantly include denunciation by the Court of the type of conduct in which the offender engaged.[7] The judge did not advert to this guideline in his sentencing remarks, nor is it reflected in the total sentence of 12 years.

We have reached the conclusion that the sentences imposed in respect of counts 3, 4, 5, 7, 8, 9, 10, 12, 13, 15, 16, 19, 21, 22, 25, 26, 28, 29, 30, 31 and 36 are manifestly inadequate and need to be increased. The increases we propose will increase the sentence for incest to 5 and 6 years in every case to reflect the gravity of the conduct engaged in by the respondent. Our reasons for doing so may be shortly stated.

(a) The counts enumerated were being imposed upon a serious sexual offender.

(b) The counts involved four natural children of the respondent and two children of the respondent's wife by another relationship all of tender years when the offending took place.

(c) The circumstances of the offences were deviant and depraved.

(d) The requirement of s.6D.

(e) The maximum penalties prescribed by Parliament.

The following sentences will be imposed. Count 3, 5 years; Count 4, 12 months; Count 5, 5 years; Count 7, 6 years; Count 8, 5 years; Count 9, 3 years; Count 10, 5 years; Count 12, 6 years; Count 13, 4 years; Count 15, 5 years; Count 16, 6 years; Count 19, 12 months; Count 21, 5 years; Count 22, 5 years; Count 25, 6 years; Count 26, 5 years; Count 28, 5 years; Count 29, 5 years; Count 30, 5 years; Count 31, 5 years; Count 35, 6 years and Count 36, 6 years.

The sentences imposed on counts 1, 2, 6, 11, 14, 17, 18, 20, 23, 24, 27, 32, 33, 34, 37, 38 and 39 will be confirmed.

If all sentences were to be served concurrently, it follows that in respect of the offending against S the total sentence will become 6 years, in respect of C the total sentence 6 years, in respect of E the total sentence will become 5 years, in respect of K the total sentence will become 6 years and in respect of J will become 6 years.

Next we turn to cumulation. The respondent was dealt with as a "serious sexual offender" on counts 3 to 37 inclusive. The consequences in sentencing a serious offender are prescribed in s.6E of the Sentencing Act. Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the Court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.[8]

The judge made cumulation orders on counts 12 (2 years), 19 (6 months), 21 (2 years), 25 (2 years) and 35 (6 months) which cumulated 7 years on the previously imposed sentences which implied that, save as otherwise stated, all sentences were to be served concurrently. The orders for cumulation meant that the sentence of 5 years imposed on count 7 cumulated 7 years. In our opinion the cumulation orders were inadequate in the circumstances and different orders should now be made. The Court will use the sentence proposed for count 7, 6 years, as the head sentence upon which cumulation will apply.

Subject to what follows the Court directs that all the sentences be served concurrently with the term of imprisonment imposed on count 7.

The specified portion of the term of imprisonment imposed by the Court on the following counts must be served cumulatively on each other and on the sentence imposed on count 7. Count 12, 1 year; Count 16, 1 year; Count 19, 1 year; Count 21, 2 years; Count 25, 2 years; Count 35, 2 years in accordance with s.6E of the Sentencing Act 1991. One year of the sentence imposed on Count 38 will also be served cumulatively.

This will produce a total effective sentence of 16 years. The sentence has been structured with the principle of totality in mind. The new total sentence is intended to denounce in strong terms the Court's disapproval of the respondent's conduct and moral culpability and to indicate to the public the serious manner in which courts in this State will punish offenders for offences of incest and sexual penetration by a parent of a child or stepchild.

We have had due regard to the doctrine of double jeopardy referred to in R. v. Clarke[9] which is derived from the authorities cited by Charles, J.A. at 522. The doctrine takes into account that the offender has twice faced a court for sentence. By the same token it cannot be altogether irrelevant that the respondent has been undergoing the sentence imposed on him on 21 June 2002 and knew on or about 18 July 2002 when he was served with the Director's notice of appeal that he could be re-sentenced to a longer term.

A non-parole period of 13½ years will be fixed.

For these reasons the Director's appeal is allowed.

The appeal by Director of Public Prosecutions is allowed and the sentence imposed in the County Court is quashed.

That the following sentences of imprisonment be imposed on the respondent.

It is ordered that the following specified period of the sentence on the following counts be served cumulatively in accordance with s.6E of the Sentencing Act 1991 on the sentence of 6 years' imprisonment imposed on count 7 and on each other.

One year of the sentence on Count 38 will also be served cumulatively in like manner.

Save as aforesaid, all the sentences now imposed be served concurrently.

The total effective sentence is therefore 16 years.

The Court fixes a period of thirteen-and-a-half years before the respondent can become eligible for parole.

The Court declares pursuant to s.18(1) of the Sentencing Act that the period the respondent has been in custody in respect of these offences is 544 days and that 544 days be reckoned as time already served (i.e., to and including 26 February 2003) under the foregoing sentences.

The Court directs that the making of this declaration and its contents be entered in the records of the Court together with the fact that the respondent was sentenced on Counts 3 to 37 as a serious sexual offender.

(N.B. Counts 38 and 39 are not in Schedule 1 to the Sentencing Act.)

Sexual penetration with a child under 10 (Representative)

At Diamond Creek, respondent made S suck his penis.

At Epping he made her suck his penis on many occasions in his study.

At Panton Hill he would show children pornography on computer and get S to touch and suck his penis.

After refusing to eat her food respondent rubbed his penis between S's upper legs and on the outside of her vagina while C stood in doorway. Respondent ejaculated.

Another day she awoke to find him rubbing his penis on the outside of her vagina. He said "I thought you liked it."

While sharing a bath with C S was made to suck C's penis.

In various room of the Panton Hill house, while naked, S was made to touch and suck C's penis

Respondent masturbated and ejaculated into spoon and made S and C taste it.

In respondent's bedroom, S and C made to lie naked on bed and C told to penetrate S's vagina with his penis.

On drive to football oval in Diamond Creek, S told to remove her underpants and sit on respondent's lap. He exposed his penis and rubbed it on the outside of her vagina area until he ejaculated.

S made to lie on her stomach on respondent's bed, he put some lubricant around her bottom and put his penis inside her bottom and ejaculated inside her bottom.

While dressed up in little girls' clothes and plastic pants C made to suck respondent's penis. While out driving the car was stopped on the side of the road and C was made to suck the respondent's penis until he ejaculated. He was paid extra if he swallowed the ejaculate.

Attempted sexual penetration with a child under 10 (Rep.)

At the same time as count 8 the respondent tried to put his penis up C's anus and paid him for it.

While living with his parents the respondent made C urinate in his mouth and made C suck the respondent's penis.

While sharing a bed with E the respondent would make C and E play with each other's penis while he watched and took photos. It happened often and usually on a Sat. night.

On some of the occasions in count 11 the respondent would put his penis into C's mouth.

Every time C stayed at the house in Seville the respondent would come into the bedroom (which was shared by E and K) and suck C's penis.

While C was sitting at the computer the respondent started to suck C's penis.

On some of the occasions in count 13 the respondent would get C to masturbate him.

On some of the occasions in count 13 the respondent attempted to put his penis into C's anus.

On the day of the school Gala when they were to do a Taekwondo exhibition the respondent took C into the main bedroom and made C suck the respondent's penis.

The accused asked both C and E to insert a dildo into their anuses but neither did. He inserted it into his own anus and got E to pull it in and out.

The respondent performed oral sex on K and put his penis into her mouth in C's presence, as they still shared a room. (see count 26)

The respondent was naked in his bedroom with A and S present, he put a condom on, masturbated and ejaculated in their presence.

The respondent would come into E's bedroom, touch him on the penis and pay him money to do so.

The touching in the above count progressed to E being made to suck the respondent's penis.

The respondent made E watch as he sucked C's penis and then sucked E's penis.

Having taken both C and E into the main bedroom the respondent touched and sucked their penises then grabbed E's hand and put it onto C's penis.

On the occasion in count 23 the respondent got C to put a dildo into the respondent's anus and made the boys watch him.

"He (Daddy) pushes his dick in my bottom...a couple of times." (see count 18)

When K did not want to participate further, J was sometimes around and he would put "his dick into respondent's bottom."

The respondent took photos of K and J having sex "but they didn't actually have sex."

The respondent sometimes put his penis on J's leg and J has touched the respondent's penis "25...lots."

Photos depict J dressed in girls clothes exposing his penis to the respondent.

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

[3] Mill v. The Queen (1988) 166 C.L.R. 59.

[6] R. v. Wakime [1997] 1 V.R. 242; R. v. Boxhall (unreported, 3/7/97); R. v. Lomax [1998] 1 V.R. 551; R. v. A.W.F. [2000] VSCA 172; [2000] 2 V.R. 1.

At a glance

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Judgment (113 paragraphs)

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