DPP v Foot [1999] VSCA 147

5. I acknowledge the detail in which the learned sentencing judge has set out his reasons for deciding upon the sentence he imposed on the respondent, but there is an aspect of the sentence which has caused me particular concern. This is the direction that 12 months of the sentence on count 1 (the first count of rape) be cumulated on the sentence on count 2 (the second count of rape). The circumstance that the school policy was that the children should go to the toilet in pairs made it necessary, if the respondent were to avoid detection before his criminal aims were carried out, that he detain both little girls in the toilet cubicle. No such consideration applied to his decision to rape both children and his commission of those offences. The commission of count 1 constituted, in my opinion, a very significant addition to his criminality. Had I sentenced the respondent I would have cumulated at least two and a half years of the sentence on count 1 on to the sentence on count 2.

8. But during this appeal no complaint was made by the Director about any of the cumulation directions made by the learned sentencing judge. On the contrary, he said in argument that he accepted they were within range.

11. In the circumstances, I believe the proper course is for me to subscribe to the disposition of this appeal proposed by the other members of the Court.

14. I raise the matter of this cumulation direction, because, in my opinion, it should not be hereafter used as a standard or benchmark in cases where like offences are committed concurrently in the manner revealed in this case.

19. The respondent, who was born in June 1979, is now 20 years of age. On 30 March 1999 he was presented in the County Court at Melbourne and pleaded guilty to two counts of rape, contrary to s.38(1) of the Crimes Act 1958 (counts 1 and 2) and two counts of committing an indecent act in the presence of a child under 16, contrary to s.47 of the Crimes Act 1958 (counts 3 and 4). A charge of loitering with intent to commit an indictable offence, contrary to s.7(1)(f) of the Vagrancy Act 1966 was heard and determined at the same time, pursuant to s.359A of the Crimes Act 1958. The relevant maximum penalty for rape is 25 years' imprisonment, for committing an indecent act in the presence of a child under 16 years of age, 10 years' imprisonment and for loitering with intent to commit an indictable offence, 2 years' imprisonment.

22. No prior convictions were alleged. On 30 March, a plea in mitigation was made by counsel on behalf of the respondent. On the plea, a report of the forensic psychologist, Mr. Bernard Healey, was tendered, as also was a poem composed by the respondent while in gaol. There were three victim impact statements put before the sentencing judge: from the father of one complainant and the mother of the other and the principal of the primary school at which they were both pupils. I should explain that both complainants were little girls of five at the time of these offences which (save for the summary offence) all took place on the one occasion in the girls' toilets of the local primary school where the respondent had spent some time, waiting for a victim. When these two little girls came in to the toilets together, he detained them and committed the four offences on the presentment.

25. On 7 April 1999, the respondent was sentenced to 4½ years' imprisonment on each of counts 1 and 2, 2 years and 3 months' imprisonment on each of counts 3 and 4 and 12 months' imprisonment for the summary offence of loitering with intent. It was directed that 12 months of the sentence on count 1, 8 months of the sentence imposed on count 3 and 7 months of the sentence imposed for the summary offence be served cumulatively with the sentence imposed on count 2 and with each other, making a total effective sentence of 6 years and 9 months' imprisonment. A non-parole period of 3 years and 9 months was fixed. His Honour declared 182 days be reckoned as having been served under these sentences.

28. By notice dated 4 May 1999, the Director of Public Prosecutions appealed against the sentences imposed on a number of grounds, but principally on the ground that they were manifestly inadequate. It was said in the grounds of appeal that the sentence imposed on each of the four counts was itself manifestly inadequate, as also the sentence imposed for the summary offence; that the orders for cumulation resulted in a total effective sentence which was manifestly inadequate; and that the non-parole period fixed was manifestly inadequate. In ascribing error, it was alleged that the judge in sentencing failed adequately to reflect the gravity of the offences, failed to take into account sufficiently the aspect of general deterrence, gave too much weight to factors going in mitigation and gave insufficient weight to the age and vulnerability of the victims, to the fact that the offences occurred in a school and to the predatory nature of the offending.

31. As to this last, there is no doubt but that the respondent lay in wait for the two little girls who became his victims. I do not mean to say that they were chosen otherwise than at random. But on the day in question (8 October 1998) the respondent went to two primary schools, not one. He went first to the primary school which he himself had attended, finding his way to the toilets there by passing along an internal corridor of the school buildings. Once in the toilets, he lay in wait but was discovered and the police were called. The respondent, however, talked his way out of this, claiming that his presence in the toilets was all an embarrassing mistake. His loitering at this primary school gave rise to the summary offence with which he was charged.

34. Having been detected at the first primary school, the respondent departed only to walk over to the second. Once there, he again found his way to the toilets (even though at this school they were located in close proximity to the main school buildings) and once again he lay in wait. When he realised that the girls coming into the toilet block were attending only in pairs, he seized the opportunity that presented when these two walked in who were only five and over whom he found it easy, I suppose, to exert some control. Once he had the little girls with him, he persuaded them to lower their underpants and he touched each of them in the area of the vagina, his fingers "caressing" them as he described it to the police. There was some penetration, perhaps a little deeper in the case of one than in the other. This all took some five or six minutes after which the respondent masturbated to ejaculation in the presence of the children.

37. Having thus obtained sexual gratification, the respondent then ran out of the toilet block and went home. The two children came out of the cubicle which they had locked on the respondent's instructions and went back to their schoolroom where the matter became known to their teacher and was reported to the police. The respondent was apprehended at his home only hours later - which was scarcely surprising as he had given his name and address to police when they spoke to him at the first school he visited that day. He was taken into custody and he remained in custody.

40. The respondent's conduct at the second school was the subject of the four counts on the presentment. Throughout the time he spent with the two children in the toilet block, the respondent had sought to re-assure them, telling them that he was not intending them any harm; and, in truth, though they started crying, they suffered no physical harm. What emotional damage has been done is of course yet to be seen. The victim impact statements, prepared by the parents of the girls and the principal of their school, make the point that the offences committed against the girls have had a significant impact also on their immediate families and the wider school community.

43. It seems to me altogether unnecessary to recount the circumstances of the respondent's offending in any more detail because it is all set out comprehensively in the remarks of the sentencing judge. The report of the forensic psychologist established that in offending the respondent was seeking to fulfil a fantasy of his, a fantasy dependent upon sexual contact with little girls. In Mr. Healey's view the respondent was sexually dysfunctional. The respondent himself is of high intelligence and recognises his difficulties. Mr. Healey said (p.8):-

"There is no doubt about his emerging paedophilia and he was frank about his fantasies and strong urges - indeed these have brought him into conflict with the law and have potential to do so in the future unless his aberrant behaviour is addressed. Clearly he must undergo an offenders' program, submitting himself to its rigours even though he may have some aversion in this regard - failure to do so will render him a continuing danger to children in the community."

"There is little doubt about his paedophilic strivings - according to the answers he gave in the Record of Interview, his urges in that regard are quite strong, that is, in his search for immediate gratification. In that context, he must be assessed as a danger to children in the community, therefore needs to undergo stringent course requirements for sexual offenders (such as provided at Ararat) in the final third of this sentence. He will have difficulty accommodating himself to that course in view of his immaturity and egocentricity."

All of this was properly emphasised by the Director on this appeal. As the judge remarked when sentencing, as matters stand the respondent is a danger to the community.

50. That said, there were a number of factors to which the sentencing judge had regard in mitigating the harshness of the sentences that might otherwise have been imposed. First, of course, there was the respondent's youth. He was a "young offender" within the meaning of that expression in the Sentencing Act and therefore outside the definition of "serious sexual offender" for all purposes. Again, the personal circumstances of the respondent are fully described in the judge's sentencing remarks. In part his Honour said this:-

"You come before this Court as a young man who has no history of prior offending. That is a substantial factor in your favour as is your youth a factor that the court takes into account. You pleaded guilty to these offences at the first available opportunity and you have expressed remorse for your actions. Your plea of guilty has saved the children involved, their families and teachers concerned the trauma of giving evidence and being involved in a trial. Your plea of guilty accompanied by remorse is a substantial factor in your favour and entitles you to a high sentencing discount. When interviewed you co-operated fully with police and made full admissions to them in relation to these matters. You made full admissions as to what your real intentions were at the [first primary school you went to] and as to what took place at the [second] Primary school. Without those admissions it would have been difficult, if not impossible, to prove at least some of these charges. Your admissions have provided the necessary evidence of your guilt. Your co-operation with police and full admissions is another matter that I take into account in your favour when sentencing."

The judge referred to the unfortunate sexual history of the respondent which, in his early teens involved homosexual activity with, among others, a much older man; then a sexual relationship with a young girl at the age of 15; and more recently a sexual relationship with his fiancée which resulted in the birth of a young daughter. At the time of these offences, the respondent was living with his fiancée and his child (an arrangement which has since been dissolved). During his early teens, it seems, the respondent had much access to pornographic video-recordings which belonged to his father: in later times, his sexual fantasies have been encouraged by his having access to pornographic images of young girls on the Internet. It is in that context that one finds Mr. Healey's assessment of serious sexual dysfunction.

55. In the course of his sentencing remarks, the judge said:-

"As I have said, these are grave matters and there is considerable public concern and indignation about the commission of sexual offences against children at school. Such conduct is abhorrent and totally unacceptable to the community and has to be strongly denounced and justly punished. Those who commit such offences must expect to be punished for them. Protection of the community and particularly young girls, from you, is important. As I have said, because of your paedophile urges and fantasies you are a danger to them. They will be protected whilst you are in prison but the position when you are released must be addressed in the community's interest and in your interest."

At the same time, while seeking to protect the community, the judge said expressly that he bore in mind "the principle of proportionality. The sentence imposed by the Court cannot exceed what is proportionate to these offences in the light of their objective circumstances."

60. Plainly, the judge faced no easy task in fixing a sentence which would properly reflect the considerations of denunciation, punishment and both specific and general deterrence, while at the same time giving due weight to those considerations going in mitigation, many of which I have already referred to. Because the Director argued that the judge gave too much weight to the prospects of rehabilitation when those prospects appear to be minimal, I set out what the judge said in this regard:-

"The sentence imposed by the court also has to adequately take account of your personal circumstances, background and character, the various mitigating factors to which I have referred, and your rehabilitation. As I have said, you are a young offender and it is important that your rehabilitation be addressed through appropriate treatment and assistance. This will not be easy. It needs to be addressed whilst you are in prison through programmes and then to be followed on through parole. In my view there will need to be lengthy and close supervision of you and attention to you whilst you are on parole in order to avoid the re-occurrence of conduct such as this."

To that end, the judge fixed "a longer parole period and consequently greater differential between the head sentence and the minimum term that would normally be the case", in recognition of the "high need for close and lengthy supervision by the Parole Board after release together with what further treatment and assistance the Board considers necessary". In argument, the Director conceded that he had no quarrel with the fixing of a three-year differential between the minimum term and the total effective sentence: his argument was that both the total effective sentence and the minimum term were wholly inadequate.

65. It is important, I think, that despite the terms in which the notice of appeal is cast no specific error in sentencing was demonstrated. The sentences were imposed by a judge of great experience and, as the comprehensive nature of the sentencing remarks show, his Honour gave a good deal of careful consideration to the matters bearing upon sentence and how best to strike the proper balance between the gravity of these offences, particularly having in mind their predatory nature and their commission at a school, and, on the other hand, the very considerable factors going in mitigation. The task of striking the balance could only have been made the more difficult because of the psychologist's report about the respondent's "emerging paedophilia" and the need for community protection. Yet none of this was overlooked by the judge and all of it, in my view, was assessed most anxiously. Certainly the judge took into account all of those matters to which consideration had to be given and he does not appear to have omitted from consideration anything that he should have regarded. Error, if it is to be found, can be identified only if the sentences imposed lay altogether outside the range of sentences that might properly have been imposed, given the circumstances both of the offending and of the offender. And as I have said, no specific complaint is made about the orders for cumulation, so that the Director's case depends necessarily on the individual sentences that were imposed and the minimum term**.**

68. It is of course trite that this Court cannot interfere simply because this Court might have imposed sentences other than those imposed below. On any appeal against sentence, this Court is constrained to interfering only if error is disclosed and, where no specific error is disclosed, it can interfere only if the sentences imposed were manifestly excessive or manifestly inadequate - that is, so high or so low (as the case may be) as itself to betoken some error, although the error cannot otherwise be identified. Not only is this Court confined to overturning sentences imposed below only when error is found in that fashion: on Crown appeals, special caution is enjoined, as explained in R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522-3 per Charles, J.A. and R. v. Carter [1998] 1 V.R. 601 per Winneke, P.

71. On each of counts 1 and 2, the two counts of rape by digital penetration, the respondent was sentenced to imprisonment for 4½ years. Imprisonment plainly was called for, notwithstanding all of those many factors which went in mitigation and 4½ years is, I think, within the range which was open to the trial judge. It was argued by the Director that 4½ years seemed light, when compared with the maximum now available: 25 years. After all, this was rape (as now defined) of two little girls who were very vulnerable and within the precincts of a school, a primary school, where it should be expected that they would be safe and secure. Both were in grade "prep" and thus for the first time away from the safety and security of their homes, and there was the predatory nature of the offending. But as I say, there were factors going in mitigation and the task of sentencing in this instance was particularly difficult. Certainly the judge might have imposed a heavier sentence: perhaps he might have directed that more than 12 months on count 1 be served cumulatively on count 2. But at the end of the day, I am not persuaded that 4½ years' imprisonment for this youthful offender was so inadequate on counts 1 and 2 as to justify this Court's interfering with either, on this Crown appeal.

74. On counts 3 and 4, which relate to the respondent's masturbating in front of the two little girls, the respondent was sentenced to 2 years and 3 months' imprisonment. Those terms were to be served concurrently, but eight months of the sentence on count 3 was made cumulative on the sentence imposed on count 2. Neither the individual sentences, nor the eight months which was made cumulative, can be said to be manifestly inadequate. The same is so, I think, of the further sentence of which was meted out for the summary offence of loitering with intent to commit an indictable offence, seven months of which was to be served cumulatively. This was conduct in which the respondent engaged at the first primary school he visited on 8 October. The maximum penalty for this offence was 2 years' imprisonment and for his offending the respondent was given 12 months' imprisonment. In no way can that be said to be inadequate: surely it reflects the predatory nature of the offence in this instance and the fact that it occurred within the precincts of a primary school.

77. In all the circumstances, I do not consider that the total effective sentence of 6 years and 9 months can be characterised as manifestly inadequate, given the significant discounts to which the respondent was entitled for the factors going in mitigation. Nor do I think that the minimum term of 3 years and 9 months was in some way inadequate. In this connection, the judge gave special consideration to the conditions which, in his view, should be attached to any parole granted. That is not to say that the judge had improper regard to executive action, something forbidden by the Sentencing Act 1991 s.5(2AA). What the judge said was that, if and when parole was granted (and it was by no means a foregone conclusion that parole would be granted), there should in his opinion be conditions as to further treatment for the respondent's sexual dysfunction. The judge did not in any way bind the Parole Board in the discharge of its functions; nor, it must be said, did he make any recommendation that parole should or should not be granted. What he did do was to recommend to the Parole Board that if paroled the respondent should be subject to conditions and supervision. This was simply to ensure, so far as possible, that the respondent was not a risk to young girls and did not loiter in or have access to schools.

80. With all due respect to the careful submissions of the Director, I think that the sentencing remarks were exemplary in the approach taken to what must have been a most unenviable task. Having given careful consideration to all that the Director said, I am not of opinion that the sentences imposed were manifestly inadequate in any respect. In other words despite the submissions of the appellant I am not persuaded that there is any basis on which this Court can properly interfere with those sentences.

88. I agree that the appeal should be dismissed for the reasons stated by Phillips, J.A.