DPP v DL; DPP v CB [2006] VSCA 280

3 These are two appeals by the Director of Public Prosecutions against the sentences imposed on the respondents Ms DL and Mr BC for sexual offences committed against Ms DL's daughter "A". The nature and circumstances of these offences are set out below.

Background

4 Mr CB was convicted by a jury of one count of sexual penetration of a child under 16 (Count two) and of one count of production and one count of possession of child pornography (Counts six and seven respectively).

5 Ms DL was convicted by a jury of one count of taking part in an act of sexual penetration with a child under the age of 16 years, on the basis that she had aided and abetted her co-offender in the commission of Count two.

6 The victim of these offences was Ms DL's daughter, A, who has been assessed as moderately intellectually disabled and was attending a special school when the offences occurred. A had allegedly been sexually abused by other men at ages seven, nine and 11. When A was seven, charges were laid in relation to the matter, but no outcome is recorded. There is no record of charges being laid in relation to the alleged abuses when she was aged nine or 11.

7 The respondents' convictions for Count two arose out of events occurring in late 2000 or early 2001, when A was aged 14. Ms DL, who lived in Wangaratta, had a

casual sexual relationship with Mr CB, who lived in Numurkah. One morning she went into A's bedroom, told her they were going to Numurkah to visit Mr CB and instructed A to get up and get dressed. While in the car on the way to visit Mr CB, Ms DL asked A if she would have sex with him. A's evidence was that she initially refused, but her mother pleaded with her to "do it for me." In response to her mother's repeated requests she agreed to have sex with Mr CB.

8 A and her mother arrived at CB's home in Numurkah, where A was left alone for a time. Later Ms DL asked A if she would have sex with CB, and she replied "Yes, well, I'll just get it over and done with." A took her pants and knickers off and Mr CB came in. Mr CB had vaginal intercourse with A for about five to ten minutes. He then withdrew and ejaculated onto A's stomach. He wiped the semen off with a tissue, and told A to go and have a shower. A gave evidence of a similar uncharged act occurring a month or two later.

9 The child pornography offences arose out of events occurring the following year, when A was 15 years of age. She was again told by her mother that they were going to Numurkah and she said she did not want to do so. Her mother said she would buy her some alcohol. A agreed, because if she consumed alcohol she would not feel anything when Mr CB had sex with her. Ms DL purchased four cans of Bourbon and Cola and A consumed one of them. When she arrived at Mr CB's house she was given more alcohol. The Crown alleged that photographs were then taken of A while she was naked. A side-on Polaroid photograph of A naked was later found in CB's possession. The taking of the photograph, and its possession, were the bases for Mr CB's conviction of the charges of production and possession of child pornography.

10 While the police were investigating the above offences they gave A a micro-cassette recorder, which was used to tape-record a conversation between A and her mother Ms DL. The tape-recording was admitted in evidence at the trial. In that tape-recording Ms DL put considerable pressure on A to withdraw her complaint. She attempted to persuade A that "nothing ever happened," and to "block it out of your mind and say its not true." She chided A for drinking, said she would never forgive A for telling the police about the offences and said that A and her other daughter (who gave evidence at trial) had "lost her as a mother." She also referred to the fact that A had had sex with some one else and asked why she had not reported that.

Sentencing remarks

11 The learned sentencing judge said that the sentence imposed on Ms DL should "reflect that her role was not a direct one" but must also take account of her gross breach of trust in arranging for her daughter to have sex with Mr CB. This breach of trust occurred despite the fact that Ms DL knew that A had previously been sexually abused. Although her Honour did not regard Ms DL's role in the offence as "direct," she also referred to her planning of the offence, which was evidenced by the fact that she had woken A and taken her to Mr CB's house in Numurkah.

12 Her Honour gave weight to Ms DL's apparent lack of remorse. As a result, A had been required to give evidence and was cross-examined at both committal and trial. The learned sentencing Judge also took account of the contents of the tape recording between A and her mother, including a statement by Ms DL that she would not be available to help when A herself became a mother in the future. The sentencing reasons also referred to the victim impact statements provided by A's aunt, which indicated that A had been angry and depressed about the part her mother had played in making her have sex with the co-offender and that she no longer saw her maternal grandparents, who blamed her for her mother's conviction.

13 Her Honour also took account of a number of mitigating factors, including the fact that Ms DL had previously been in an abusive and violent relationship, that she had been admitted to a psychiatric hospital for 5 months in 1997, that she had been taking medication for depression and anxiety for the past 8 years and that she had no significant prior convictions. Her Honour referred to the opinion expressed in psychiatric report prepared for the court by Dr Mark Ryan, Consultant Forensic Psychiatrist at Thomas Embling Hospital to the effect that Ms DL was passive, unassertive and compliant and that she was likely to have acquiesced with Mr CB, for fear of losing the relationship.

14 Dr Ryan reported that in his interview with Ms DL she had said she might consider re-establishing a relationship with Mr CB, but that Ms DL had no sexual pre-occupation with children. These matters were taken into account by her Honour when she considered specific deterrence.

15 Her Honour recognised that Ms DL might be vulnerable to manipulation because of her tendency to be passive and unassertive but found there was only a very low risk of re-offending. Any risk of doing so in the context of another relationship could be addressed through Ms DL's participation in a Sexual Offender Treatment program. Finally, her Honour acknowledged the principle of general deterrence and the need to acknowledge the abhorrence of the community for sexual offences against children, but said that there was no specific evidence of any long term adverse effect on A. Ms DL was sentenced to 15 months imprisonment, with a minimum term of five months.

16 In sentencing Mr CB her Honour accepted his counsel's submission that the offences were "an aberration" and that "it was a case of opportunistic offending, rather than predatory behaviour, in the context of the relationship with Ms DL." The taking of A's photograph and possession was said not to indicate a "more sinister long term interest in child pornography and though the photograph was unpleasant and exploitative of A, it was not overtly sexual."

17 As aggravating factors, the learned sentencing Judge referred to the fact that Mr CB knew A was a child with a learning disability in the care of her mother and took advantage of her.

18 As in the case of A's mother, no sentence discount was available for remorse, as Mr CB had been found guilty after a trial. As mitigating factors her Honour took account of Mr CB's excellent record of employment and that he cared for the children of his first relationship, after it broke down. His only prior convictions were for breaching an intervention order which arose from the ending of his second de facto relationship. Her Honour also took account of references provided by people who spoke highly of the defendant.

19 Her Honour took the view that Mr CB was unlikely to re-offend in this way, and also referred to principle of general deterrence. Her Honour also said that she had considered the issue of parity. The sentence imposed was said to take account of Mr CB's role as the principal offender, but also to reflect the fact that the sentence imposed on Ms DL had a higher maximum because of the breach of trust involved. The maximum sentence which could be imposed on Ms DL for taking part in an act of sexual penetration of a child under 16 was 15 years, because of the breach of trust, while in Mr CB's case it was ten years.[1]

20 Mr CB was sentenced to two years and six months on count two, and six months on each of the child pornography counts. Counts six and seven were to be served concurrently with each other, with three months of these sentences to be served concurrently with count two. The result was a total effective sentence of two years and nine months and a non parole period of 15 months.

The appeal

21 The Director of Public Prosecutions has appealed against each of the sentences on the grounds of manifest inadequacy.

22 In the mother's case the grounds of appeal (among other matters) were that the sentence failed to adequately reflect the importance of the special duty owed by a mother to her child and the enormity of the breach of trust involved in the offence and failed to give adequate weight to the effect of the offence on the victim.

23 In the case of Mr CB the grounds of appeal (among other matters) were that the sentences imposed in relation to the individual counts failed to adequately reflect the gravity of the offences and their exploitative nature and failed to give adequate weight to the effect of the offences on the victim.

24 The Director also submitted in relation to Mr CB that the total effective sentence and the non parole period imposed in respect of all counts was manifestly inadequate.

Principles governing Crown appeals

25 As has often been said, Crown appeals on sentence fall into a special category. The cardinal rule,[2] as repeatedly stated in this Court, is that:[3]

"an appeal by the Crown should be brought only in 'the rare and exceptional case'... to establish some point of principle. The reason is that such appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy'"[4]

26 Although the DPP's appeals are now relatively common,[5] this court has frequently affirmed that they should only be allowed in clear and rare cases.[6]

27 As recently as 6 October 2005, McHugh, J. noted in York v R[7] that:

"Since the conferral on the Crown of rights of appeal against sentences, appellate courts have been much influenced in their approach to such appeals by the principle of double jeopardy."[8]

28 As Kirby, P. explained in Cooke v Purcell,[9] the principle against double jeopardy has a different basis from other rules which promote finality of litigation, such as res judicata and issue estoppel:

"The principle at stake in the development of the 'double jeopardy' rule is grounded in something more fundamental than the prevention of re-litigation or the promotion of finality of proceedings. It is based, ultimately, upon a perceived principle fundamental to civil rights."[10]

29 In Cooke, Kirby, P. cited the following passage from the decision of the Canadian Supreme Court in Cullen v The King,[11] (written at a time before Canada amended its constitution to implement a Charter of Rights). Rand, J. said:

"At the foundation of the criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts. It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy."[12]

30 What is involved in a Crown appeal against sentence is not a true "double jeopardy". But, as Kirby, P. said in R v Hayes:[13]

"... in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court... In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position."

31 In Josefski,[14] this Court set out and approved of six situations outlined in Clarke,[15] in which this Court's intervention at the instance of the Crown might be required, as follows:

"(a) where a sentence revealed such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle;[16]

(b) to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;[17]

(c) to establish and maintain adequate standards of punishment for crime;

(d) to correct idiosyncratic views of individual judges as to particular crimes or types of crimes;

(e) to correct a sentence which was so disproportionate to the seriousness of the crime as to shock the public conscience;[18]

(f) to ensure, so far as the subject-matter permits, that there would be uniformity in sentencing.[19]"

Should the appeal against Mr CB's sentence be allowed?

32 Counsel for Mr CB, Mr Tehan submitted that the learned sentencing judge had given appropriate weight to aggravating and mitigating factors and to the principles of specific and general deterrence. Further, neither the sentence for the individual counts, nor the total effective sentence, were manifestly inadequate. The offender had been convicted of only one count of sexual penetration and the learned sentencing judge had found that his behaviour was not predatory but opportunistic. His culpability for the child pornography counts was at the lower end of the scale.

33 It was also submitted that Mr CB did not have any significant prior convictions and other mitigating factors were present. The sentence imposed was well within the range and was double that imposed on his co-offender, Ms DL, even though the maximum sentence for the offence committed by Ms DL was 15 years, and the maximum which could have been imposed on Mr CB was 10 years.

34 In addition to the double jeopardy principle, which the Court was required to take into account in considering whether a DPP appeal should be allowed, Mr CB had served 13 of the 15 months of his minimum term. It would be unduly harsh to impose a higher sentence upon him in these circumstances. For these reasons, even if the Court took the view that her Honour had erred, it should not allow the appeal. Mr Priest also submitted that parity between the offenders should be maintained so that Mr CB should not receive an increased sentence if Ms DL's sentence was not increased.

35 Notwithstanding the double jeopardy principle, in my opinion the sentence imposed on Mr CB for the count of taking part in an act of sexual penetration with a child is so manifestly inadequate as to demonstrate that her Honour must have erred. In the circumstances of this case the sentence imposed on the offender was "so disproportionate to the seriousness of the crime as to shock the public conscience".[20] This brings this appeal within the exceptional circumstances which justify intervention at the instance of the Crown.

36 Though her Honour found that the offence was "opportunistic," rather than predatory, the offender took advantage of a vulnerable child whom he knew to have an intellectual disability. The learned sentencing judge commented that her observations in court:

"were that [A] struggled to understand some words and concepts and appeared to find it hard to consider more than one issue at a time."

37 This would also have been apparent to the offender, who as a father himself could have been expected to be protective to a young girl with an intellectual disability. The offender knew that A was the child of a woman with whom he had a sexual relationship and must have been aware of the destructive effect that his conduct was likely to have on A's relationship with her mother. He had no scruples about taking advantage of Ms DL's willingness to exploit her daughter and has shown no subsequent remorse for his abusive behaviour.

38 The offender's behaviour contributed to A losing her relationship with her mother and her mother's family. As a consequence of the offender's lack of remorse A was required to submit to the ordeal of cross-examination at committal and trial. Although A is no longer drinking to excess and according to her paternal aunt's second victim impact statement seemed to be less anxious and depressed, it remains to be seen how the offence will affect her psychological well-being in the future.

39 The principle of general deterrence requires strong condemnation of those who sexually penetrate children, whether they do so opportunistically, or as the result of premeditation. The fact that the offences involved the exploitation of a child of the offender's sexual partner makes it important to deter the offender from committing similar offences in the future.

40 Because the offender's culpability for the counts of producing and possessing child pornography were at the lower end of the scale, her Honour did not err in imposing a sentence of six months imprisonment for Count six and Count seven, to be served concurrently with each other, or in ordering three months cumulation on the head sentence for these offences.

41 For these reasons I would allow the appeal against both the sentence imposed on Mr CB for count two (taking part in an act of sexual penetration with a child) and the total effective sentence.

42 Counsel for Ms DL, Mr Priest, submitted that the learned sentencing judge had considered all relevant factors and that the sentence imposed was not manifestly inadequate when mitigating factors were taken into account. The sentence was said to be within the range of those imposed for the offence of which Ms DL was convicted.

43 Mr Priest referred Dr Ryan's report, which attributed Ms DL's behaviour to her abuse by her previous partner, and her consequent passivity and vulnerability to manipulation. The learned sentencing judge had correctly taken the view that there was a low risk of Ms DL re-offending, because the report of Dr Ryan had said she was not a paedophile.

44 Mr Priest emphasised the relevance of the double jeopardy principle and said that the court should give considerable weight to the fact that Ms DL had been released from custody some months ago. She had participated in a sex offenders' treatment programme while in custody and her conditions of release required her to participate in two further sessions.

45 He contended that it would be "particularly poignant" if the appeal were allowed and Ms DL was returned to custody. The appeal had not been heard before Ms DL's release because her co-offender had initially appealed against his conviction, there was a delay in providing the trial transcript to his counsel, and the decision had been made to hear both offenders' appeals against sentence together. Even if the court found that the sentence was initially inadequate, the double jeopardy principle, combined with the fact that Ms DL had now been released from custody should persuade the court that Ms DL should not be allowed.

46 As this court has accepted on many previous occasions:

"the fact that a sentence of imprisonment has been fully served or that the offender has already been released on parole is, it would seem, always a factor to be taken into account in the exercise of the appellate court's jurisdiction and may from time to time be decisive against the allowing of the appeal."[21]

47 Despite the weight which must be given to the fact that Ms DL was released from custody some months ago, I am of the view that the DPP's appeal should be allowed and that the court should re-sentence the offender. As in the case of Mr CB, the original sentence imposed on Ms DL was such as to shock the public conscience, having regard to the seriousness of the crime and the need for general deterrence.

48 In reaching this view I have taken account of the double jeopardy principle and to other mitigating factors including the offender's sad early life, the fact that she was herself abused by an uncle when she was a child and the violence and abuse she suffered at the hands of her previous partner. As the trial judge's findings of fact require, I have also given weight to the finding that the offender tended to be passive and unassertive in her relationships with men.

49 In my view however these mitigating factors must be regarded as having less weight than the factors which aggravate Ms DL's culpability. Despite the fact that her Honour said that the act of sexual penetration by CB was to be regarded as "opportunistic" the offender had the opportunity to reflect on the likely effect of the offence on her daughter. Ms DL's behaviour before, during and after the commission of the offence, showed a complete disregard for A's well-being. Ms DL did not act on the spur of the moment, but drove A to Numurkah and cajoled her to have intercourse with the co-offender.

50 The offender's culpability for her gross breach of trust to A is aggravated by A's intellectual disability It is also exacerbated by the attitude she expressed in the tape recording made by the police, which demonstrates her complete lack of remorse for making her daughter available to Mr CB. In the recorded conversation Ms DL attempted to persuade her daughter that the events of which she complained had not occurred. She denigrated A, referred to the fact that she had had sex with another person and threatened, persuaded and emotionally blackmailed her to abandon her complaint.

Exercising the re-sentencing discretion

51 In Director Of Public Prosecutions v Leach[22] Batt, J.A. said that:

**"**As to allowances, I agree that an allowance by way of reduction in the term of imprisonment to be imposed by this Court must be made for the so-called double jeopardy element associated with a Director's appeal. I agree, too, that the term of imprisonment to be imposed should reflect the fact that a person who has already been released into the community is being required to serve a term of imprisonment."

52 It is therefore necessary to discount the sentences imposed on the co-offenders to take account of the double jeopardy principle. In the case of Ms DL further allowance must also be made for the fact that she has already been released from prison. As Mr Tehan submitted, the parity principle must also be considered in re-sentencing Ms DL and Mr CB on Count two.

53 Having regard to the factors discussed above and taking account of the double jeopardy element which must be considered in an appeal by the Director, I would re-sentence Mr CB to a term of imprisonment of 4 years 3 months on Count 2 and to six months on Counts 6 and 7 respectively. Such sentences should be served concurrently with each other and three months should be cumulative on the count two, to reflect the exploitative and abusive nature of the pornography offences, amounting to a total effective sentence of four years six months. I would impose a non-parole period of two years and six months.

54 In re-sentencing Ms DL it is necessary to have regard to the factors referred to by the learned sentencing judge as diminishing her culpability. In addition to the reduction required to take account of double jeopardy it is also necessary to reduce the sentence which would otherwise be imposed because Ms DL will be returned to custody. Having regard to these factors I would re-sentence her to a term of imprisonment of two years and six months with a non-parole period of 18 months.

KING, A.J.A.:

55 I agree that these appeals should be allowed for the reasons advanced by Neave, J.A. and that the respondents should be re-sentenced as she proposes.

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[1] Under Crimes Act 1958, s 45(2)(B) and s 45(2)(C) respectively.

[2] As it was described in DPP v Josefski [2005] VSCA 265; (2005) 13 V.R. 85.

[3] R v Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522. See also Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310:. Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 299; DPP v Whiteside and Dieber, [2000] VSCA 142; (2000) 1 VR 331.

[4] The quotation is from Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 234

[5] See Edney, R "The Rise and Rise of Crown appeals in Victoria" (2004) 28(6) Crim L.J. 351.

[6] See for example DPP v Leach [2003] VSCA 96; DPP v Josefski [2005] VSCA 265; (2005) 13 V.R. 85 at 89.

[7] [2005] HCA 60; 221 A.L.R. 541.

[8] At 549.

[9] (1988) 14 N.S.W.L.R. 51.

[10] At 55-6.

[11] [1949] S.C.R. 658.

[12] At 668.

[13] (1987) 29 A Crim R 452 at 469 - cited in Cooke v Purcell at 58.

[14] DPP v Josefski [2005] VSCA 265; (2005) 13 V.R. 85.

[15] R v Clarke [1996] 2 V.R. at 522.

[16] Citing Everett v R [1994] HCA 49; (1994) 181 C.L.R. 295 at 300.

[17] Citing Griffiths v R [1977] HCA 44; (1977) 137 C.L.R. 293 at 310.

[18] Citing, in relation to (c), (d) and (e), R v Osenkowski (1982) 30 S.A.S.R. 212 at 212-3.

[19] Citing Everett v R [1994] HCA 49; (1994) 181 C.L.R. 295 at 306.

[20] Citing, in relation to (c), (d) and (e), R v Osenkowski (1982) 30 S.A.S.R. 212 at 212-3.

[21] DPP v Wilson [2000] VSCA 112; (2000) 1 V.R. 481 at 488 per Batt, J.A.

[22] [2003] VSCA 96; (2003) 139 A Crim R 64.