DPP v Middlebrook [2002] VSCA 169

9. The respondent is 63 years of age. He admitted four prior convictions in the Magistrates' Court for stealing, unlawful assault and theft between 1959 and 1976. The prior convictions were treated as irrelevant by the sentencing judge. Following a plea, the respondent was sentenced on the two counts on 20 June 2002 as follows: on count 1, to be imprisoned for six months; on count 2, to be imprisoned for two months. No cumulation order was made. An order was made that five months of the total effective sentence of six months was to be suspended for a period of three years from the date of sentence. The respondent would have been released from imprisonment on or about 19 July 2002.

12. The appellant's notice of appeal specified one ground: the sentence imposed in respect of each count and the total effective sentence are each manifestly inadequate. Six particulars of the ground were specified:

"PARTICULARS The learned sentencing judge (a) failed to adequately reflect the gravity of the offences 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) failed to give sufficient weight to the breach of trust involved in the commission of the offences; (e) gave too much weight to factors going to mitigation; and (f) gave weight to allegedly mitigating factors relating to the Respondent's state of health, for which there was no sufficient evidentiary basis."

16. The statutory maximum penalty for taking part in an act of sexual penetration with a child under 16 is a term of imprisonment not exceeding 10 years. The same maximum penalty is prescribed for an indecent act with a child under 16.

19. The victim of the offences was born on 30 May 1991 and was aged ten years and five months at the time of the offending. She resided with her mother and two younger siblings. The respondent was a family friend and the children referred to him as "Uncle Don".

23. On 3 November 2001, in the morning, the respondent visited the victim's family and, after coffee, said that he was intending to drive to a shopping centre to do some shopping. The victim's mother gave him a list of items to buy for her and allowed the victim to accompany him. The respondent and the victim were engaged in shopping for about twenty minutes. Afterwards he drove the car to a road in an industrial area and parked it. The victim was wearing a halter-neck top and blue shorts. The respondent moved towards her and placed his hand on her right knee. He then moved closer and said to her, "You're cold up there but hot down there", gesturing towards her groin. At this point the victim tried to get out of the car. As she did so he grabbed her by the neck and pulled her back towards him. In doing so he scratched her cheek with his watch and left finger marks on her neck. He then placed his finger underneath her underpants and into her vagina. The respondent then asked the victim whether he could look at her breasts. She said no and crossed her arms over her chest. She struggled with the respondent as he attempted to force her arms away from her chest. Eventually he overpowered her and forced both wrists away from her chest to expose her breasts. The respondent then moved away from the victim and offered her $5 not to tell anyone. The respondent drove the victim home and shortly after he left she reported the assault to her mother. On 6 November 2001 the respondent was interviewed by the police and made admissions. I have relied substantially upon the summary of evidence provided for the Court by the Solicitor for Public Prosecutions.

27. The prosecutor provided the judge with a victim impact statement made by the mother of the victim in which the effects of the incident upon the victim and the mother were described. Counsel for the respondent relied upon remorse expressed by the respondent in the record of interview and his plea of guilty. Reliance was placed upon multiple medical problems being experienced by the respondent. They included diabetes, depression, heart ischaemia, arthritis, carpal tunnel syndrome and a frozen right shoulder. Some medical reports were tendered and became exhibits on the plea. A report prepared by Mr Healey dated 7 June 2002 also was tendered. The report informed the judge of the respondent's medical condition and family history. The latter was generally unremarkable. He has children from two marriages. The children from the first marriage are all adult and a child aged about twelve years from the second marriage lives in New South Wales with her mother, who is separated from the respondent. He was occupied driving trucks for some years but is now retired, due, it was said, to his increasing medical problems. Testing by Mr Healey indicated depression and anxiety. The respondent developed a frozen shoulder following a motor accident in 1974 and a carpal tunnel problem in the right arm ten years ago. He was diagnosed with diabetes in the mid-1980s and has been insulin-dependent since November 2001.

30. No explanation was offered for the offending. Character evidence suggested the offending was out of character and an aberration. The judge recognised that some of the health problems experienced by the respondent were due to excessive alcohol consumption in the past. He thought it was unlikely the respondent would re-offend. In his sentencing remarks the judge said he understood that offences of the kind committed by the respondent "are to be met with severe punishment, in particular where they involve a breach of trust as these offences did". His Honour said the issue was whether the respondent should serve an immediate custodial sentence on account of his health. He then proceeded to impose the sentences of six months and two months I earlier indicated.

33. The Director submitted that the individual sentences and the total effective sentence of six months' imprisonment, five months of which was suspended for three years, are ? manifestly inadequate and demonstrate sentencing error. The principles applicable to appeals by the Director of Public Prosecutions are set out in R. v. Clarke[1]. Mr Wraith submitted that if this Court considers a new head sentence should be imposed any additional term should be wholly suspended so that the respondent does not have to serve any further period in custody.

36. I agree with the Director's submission that the head sentence imposed on count 1, the total effective sentence and the suspension order are manifestly inadequate. The error identified begins with the head sentences. After the judge stated that offences of the kind before the court are to be met with severe punishment, he proceeded to impose very lenient sentences indeed. The offences were committed against the wishes of the victim, who was of a tender age. Digital penetration is a serious form of sexual offending and is calculated to cause long-term harm to the victim. The sentence imposed for sexual penetration in the present case was only five percent of the maximum prescribed. I consider that the sentence imposed for indecent assault was very lenient but was within the range available to the sentencing judge, in my opinion. The respondent was a mature aged man when he committed these offences. He seized an opportunity to take the victim who trusted him to a safe location where he could molest her, and, having done so, he attempted to buy her silence. They were aggravating features of the offending. There was a breach of the trust the victim's mother placed in the respondent when she allowed her daughter to be taken shopping.

39. The sentence imposed needed to give effect to general deterrence, but did not do so, in my opinion. The judge gave considerable weight to the respondent's remorse, plea of guilty, absence of relevant criminal history and health problems, as he was entitled to do. However, after taking the mitigating factors into account, he arrived at a manifestly inadequate head sentence on count 1. The health problems were significant, but must have given too much weight to produce such a manifestly inadequate sentence. The health problems are not such that the respondent will be unable to cope with a custodial sentence: the medical evidence did not go as far as that. Clearly, had the judge imposed custodial sentences within the range for these offences, he would have been entitled to reduce the custodial term considerably on account of the mitigatory factors and his finding that the respondent was unlikely to re-offend.

42. I would uphold the Director's appeal. The sentencing discretion is reopened, but the principle of double jeopardy referred to in Clarke in the judgment of Charles, J.A. has to be reflected in the new sentences. I would propose that both sentences imposed in the County Court be set aside. Bearing in mind that the respondent has for some months been serving a sentence largely suspended, I propose that on count 1 a sentence of two years' imprisonment be imposed and on count 2 a sentence of two months' imprisonment be re-imposed. The total effective sentence will become two years. Because the conduct comprising each count can properly be treated as one transaction, I consider that a cumulation order is inappropriate. I further propose that 16 months of the sentence of two years be suspended for two years from 20 June 2002. The Court will declare pursuant to s.18 of the Sentencing Act 1991 that the respondent was held in custody in relation to

proceedings for these offences for 30 days, which is to be reckoned as a period of imprisonment already served under the sentence. The effect of the orders proposed will mean that the respondent will be required to serve a further period of seven months in custody.

54. I also agree. In my opinion not only the sentence imposed on count 1 and the total effective sentence but also the immediate custodial component of one month was manifestly inadequate.

58. Mr Middlebrook, would you stand up, please. Before I pronounce the orders that the Court makes, it is necessary, under s.27(4) of the Sentencing Act, for me to explain the purpose and effect of the proposed order suspending part of the sentence being imposed. Its purpose is to give you a chance of avoiding the need to serve in custody 16 months of the sentence that we are imposing. Its effect is to allow you to serve that 16 months outside the gaol and in the community, but there is a consequence. If you commit, whether in or outside Victoria, during the two years commencing on 20 June 2002, another offence which is punishable by imprisonment, then you may be brought back before the Court and, unless there are exceptional circumstances, you may take it that you will be required to serve in prison the period of 16 months that we are ordering be suspended. Do you understand that?

The appeal is allowed and the sentences imposed in the County Court on 20 June 2002 are set aside. In lieu the appellant is sentenced as follows.

On count 1 he is sentenced to two years' imprisonment.

On count 2 he is sentenced to two months' imprisonment to be served concurrently with the sentence imposed on count 1.

It is further ordered that 16 months of the total effective sentence of two years' imprisonment be suspended for a period of two years from 20 June 2002.

It is declared that, as at this day, 9 October 2002, 30 days be reckoned as time already served under the foregoing sentences and it is directed that the making of that declaration and its contents be noted in the records of the Court.

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