DPP v G [2002] VSCA 6

Court of Appeal (Vic)|2002-02-07|Before: WINNEKE, P. and BUCHANAN and VINCENT, JJ.A.

Criminal law - sentence - appeal by DPP against sentence on grounds of manifest inadequacy - offences of "incest" (1 count) and "indecent act" (1 count) - sentences of 12 months (incest) and 6 months (indecent act) manifestly inadequate - appeal allowed.

This is a Director's appeal brought pursuant to s.567A of the Crimes Act 1958. On 23 November 2001, the respondent pleaded guilty before the County Court at Melbourne to one count of incest and one count of committing an indecent act with a child under the age of 16. The child in question (whom I shall call "the complainant") was the stepdaughter of the respondent and was the daughter of a woman (whom I shall call "J"), with whom the respondent had been living as man and wife for a period of more than ten years by the time when the offences occurred. At the time when cohabitation commenced between the respondent and J. in 1989, the complainant was aged three. At the time when these offences occurred in June 2001, she was 14 years of age. The relationship between the respondent and J. had, by then, produced five other children whose ages ranged from eight years to eight months.

Following the pleas of guilty, the judge imposed sentence on 26 November 2001. The sentences imposed were as follows:

(a) on the count of incest : 12 months' imprisonment;

(b) on the count alleging indecent act: 6 months' imprisonment.

His Honour directed that three months of the sentence imposed on count 2 be served cumulatively upon the 12 months imposed on count 1. The total effective sentence was therefore 15 months and his Honour ordered the respondent to serve six months before becoming eligible for parole. He declared that 89 days had already been served pursuant to the sentences.

The Director has appealed to this Court on the ground that the sentences are manifestly inadequate.

The salient facts can be shortly summarised. The respondent, who is now 34 years of age, commenced to cohabit with J. in Mount Gambier when he was approximately 22 years old. His family had moved to Mount Gambier from Elwood in Victoria in the early 1980s following the collapse of his father's jewellery business. In 1985 his father died when the respondent was about 17 years old. The respondent, who had apparently been close to his father, appears to have reacted badly to his father's death. He had various jobs in and around Mount Gambier, but appears to have been psychologically vulnerable at the time when he commenced to live with "J". He sought to deal with his fragile psychological state by resort to cannabis and alcohol. From time to time arguments developed between him and J., largely over differences of opinion in respect of her capacity to cater for the welfare of the children and her deficiencies as a wife. Arguments developed between them and, in early 1999, the police were notified that he had physically abused her in the course of an altercation. At the time he was apparently drunk and was advised to seek assistance with his alcohol problem. He returned to Victoria to live with his mother, who at that stage was living in Werribee. He was admitted to the Mercy Hospital in Werribee where he was noted to be suffering from depressive and suicidal symptoms. In June 1999 J. came from Mount Gambier with the children to join him and at that time they secured their own premises in Werribee. It was in these premises that the offences occurred in June 2001. It would seem that whilst living in Werribee the respondent's somewhat fragile mental state did not improve and he continued to abuse alcohol.

The offences from which these charges emanate occurred in the early hours of the morning of 2 June 2001. The circumstances in which they occurred were the subject of different accounts by the respondent and the complainant. The complainant alleged that, at about 1 a.m., the respondent had taken her from her bedroom into the lounge room of the house and had told her that her mother had directed him (the respondent) to teach her about sex. Thereafter the respondent had fondled her pubic region, had licked her in the vaginal area and had then penetrated her vagina with his penis, ultimately ejaculating on to her stomach. The respondent's version, ultimately given to the police, was that the complainant was the initiator of the events, that she had asked him to instruct her in sexual matters; had willingly fondled his penis until he had become aroused, that she had wanted him to lick her vaginal area, and that he had placed his penis upon her vagina, conceding that there was no more than partial penetration. This was a dispute which the judge was unable to resolve, but he ultimately sentenced the respondent on the basis of his (the respondent's) version, namely, that the indecent act alleged in count 2 comprised what his Honour described as "the handling of the complainant's pudendum, the licking of her vulva, the forced masturbation", and that the incest comprising count 1 comprehended "the placing of the head of the penis between her labia majora". What was not in dispute was that the complainant complained to her mother on the following morning and that the respondent had disinhibited himself by drinking copious quantities of beer in the period leading up to the sexual conduct. His Honour found that the respondent was "affected by liquor" and that whilst "in that condition he had engaged in the sexual abuse of his 14-year-old stepdaughter".

There can be no doubt that the offences committed by the respondent were serious offences. This much was recognised by the judge when he said:

"These were serious offences constituting a breach of parental obligation and trust and capable of producing genuine psycho-sexual and social dysfunction in the child."

"The disgraceful and destructive breach of trust involved in these offences was driven by awareness of the child's maturation and growing sexuality, the generation of lust and disinhibition produced by liquor."

No doubt because the sole ground of appeal was confined to the Director's contention that the sentences imposed were manifestly inadequate, the submissions made by counsel in this Court were in very short compass. As has often been said, it is not a ground which admits of much elaboration. Mr Gyorffy, who appeared for the Director, submitted that we should be satisfied that, for the very reasons articulated by his Honour, the sentences which he imposed fell so far short of appropriate sentences for the serious crimes which fell to be punished as to demonstrate their manifest inadequacy, and that we should conclude that his Honour's discretion had miscarried. Having regard to the prevalence of the type of conduct engaged in by the respondent and the need to deter, counsel for the Director submitted that the Court should be prepared to set aside the sentences imposed and substitute for them sentences appropriate to the gravity of the offending.

Mr Croucher, who appeared for the respondent, not surprisingly contended for the contrary view. He submitted that the sentencing judge - who is most experienced in criminal matters - was entitled to take the view that the respondent's crimes were an isolated instance of sexual offending against his family, unlike the majority of cases of this type of offending which come before the courts. He pointed to his Honour's remark that:

"Fortunately they [the offences] were confined to what [counsel for the applicant on the plea] ... described as 'a few crazy hours'."

Mr Croucher also pointed to his Honour's conclusion that the respondent was remorseful and, as a consequence of his conduct, had cut himself off from his wife and children. In the alternative, he submitted that, if we were minded to conclude that the sentencing discretion had miscarried, we should remind ourselves that, in appeals of this kind, the Court is subject to restraints imposed by the fact that his client is being exposed to the double jeopardy arising from the fact that he is standing for sentence a second time.

The restraints imposed on the Court in appeals of this nature have been often stated and need no elaboration. They have been referred to in many cases including Griffiths v. R.[1], Malvaso v. R.[2], Everett v. R.[3], R. v. Clarke[4] and R. v. Whiteside & Dieber[5]. They have been recently re-stated in Dinsdale v. R[6]. However, conscious as I am of these restraints, I am - for my own part - in no doubt that the sentences which his Honour imposed for these serious crimes are manifestly inadequate and, if left intact, will distort proper sentencing principles and practice in this State. This Court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the Court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes. (See, for example, R. v. Sposito[7]; R. v. Wayland[8]; R. v. Ware[9]; R. v. Wakime[10]). The legislature has recently increased the maximum penalty for incest to 25 years.

10 It seems to me that, in the light of this history, the imposition of a sentence of 12 months' imprisonment for the crime of incest committed by the respondent is manifestly inadequate. It cannot, in my view, be justified by the fact that it was an isolated occurrence or, as his Honour put it, was "confined to a few crazy hours". Whether the offence occurs once or more than once, it has the same destructive potential effect upon its victims that his Honour recognised and of which the courts in this State have constantly spoken. Nor, in my view, is the respondent's conduct to be explained, excused or ameliorated by the fact that his lust had been provoked by the liquor which had disinhibited him. The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge. Parents - and those in loco parentis - who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.

11 Likewise, I am of the view that the sentence of six months' imprisonment imposed on the count of "indecent act" is also manifestly inadequate. This count was accepted to be "representative" of repetitive conduct which occurred during the "few crazy hours" of which his Honour spoke. It involved the sexual handling, the licking, the forced masturbation and the ultimate ejaculation to which his Honour referred. The maximum penalty for this offence is 10 years and, having regard to the conduct involved and the length of time over which it continued, the sentence of six months was, in my view, manifestly inadequate.

I would, accordingly, allow this appeal and set aside the sentences which his Honour imposed. Mindful, as I am, of the restraints imposed upon the Court in re-exercising the sentencing discretion for the second time, I would re-sentence the respondent as follows:

(a) on count 1 (incest): 3 years' imprisonment;

(b) on count 2 (indecent act): 12 months' imprisonment.

I would not direct any cumulation. I would direct that the respondent serve a period of 18 months before becoming eligible for parole.

WINNEKE, P.: The formal order of the Court is that the appeal is allowed. The sentences imposed below are quashed and in lieu thereof this Court sentences the respondent as follows:

We order that the respondent serve a period of 18 months before becoming eligible for parole.

We declare that the respondent has served pursuant to this sentence a total of 163 days and we direct that the declaration and its details be noted in the records of the Court.

A certificate is granted to the respondent under the Appeal Costs Act.

[8] Unreported, C.C.A. 14 September 1992.

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