DPP v Papworth [2005] VSCA 88

1 I have had the advantage of reading in draft the reasons for judgment prepared by Buchanan, J.A. I agree in the orders his Honour proposes for the reasons that he gives. It is unnecessary in this case to impose a disproportionate sentence, provided full weight is given to the injunction in s.6D(a) of the Sentencing Act 1991, the breach of trust involved in the offences and the other circumstances of aggravation.

2 It is understandable that R. v.Barnes[1] was not reported_._ Too much of it was taken up with the application for leave to appeal against conviction and the principal point raised by that application had been decided in R. v. Coffey[2]. It is, nevertheless, an example of one of those rare cases in which this Court has found it necessary to impose a disproportionate sentence pursuant to s.6D(b) of the Sentencing Act. The considerations attending such an exercise were discussed in my judgment[3], in which Buchanan and Eames, JJ.A. agreed. Reference was made to the difficulties of prediction, to the leading case, R. v. Connell[4], and to the desirability, where a disproportionate sentence is imposed, of fixing a non-parole period that is shorter than usual when considered as a percentage of the head sentence[5]. The judgment may be of assistance to sentencing judges.

4 The Director has appealed, pursuant to s.567A(1) of the Crimes Act 1958, against a total effective sentence of four years' imprisonment with a non-parole period of two years which was imposed upon the respondent when he pleaded guilty to a presentment containing three counts of committing an indecent act with a child under the age of 16 years and one count of incest. A sentence of 18 months' imprisonment was imposed in respect of each of the counts of committing an indecent act and a sentence of 30 months' imprisonment was imposed in respect of the count of incest. Six months of each of the sentences imposed on the counts of committing an indecent act were cumulated on the sentence imposed on the count of incest. The sentencing judge directed that the respondent serve a minimum of two years before he was to become eligible for parole.

5 A question arose at the outset of the appeal as to whether the appeal was brought within time. The respondent was sentenced on 18 November 2004. The notice of appeal was served on Sunday 19 December. Section 567A(3) of the Crimes Act provides that notice of appeal against a sentence shall not be given more than one month after the passing of the sentence without first obtaining the leave of the Court of Appeal.

6 The Director submitted that the time for service was extended by s.44(3) of the Interpretation of Legislation Act 1984, which provides:

"(3) Where the time limited by an Act or subordinate instrument for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the act or thing may be done, on the day next following that is not a holiday." [6]

"Holiday" is defined, inter alia, as a Saturday or Sunday (sub-s.(4)).

7 In my view the Director's submission is correct. Section 44(3) is applicable, for s.567A(3) does limit the time "for the doing of any act or thing". I do not think that the sub-section required the performance of the act of service to await the next day that was not a holiday, which in this case was the following Monday. The sub-section provides in terms that the time limited is extended to the next day that is not a holiday and the act may be done on that day. In my opinion the sub-section does not impliedly prohibit the doing of the act on any earlier day that is a holiday. An alternative view, which leads to the same result, is that the phrases in the expression "the time so limited shall extend to, and the act or thing may be done, on" are to be read disjunctively, so that the time is extended to cover all the days up to the next day that is not a holiday whether or not the act is performed on that day. The second phrase does not limit the first.

8 The victim of the offences was the 14 year-old son of a Chinese woman with whom the respondent corresponded by telephone and on the internet and who came to Melbourne in 2003 and married the respondent. The prosecutor in his opening recounted that the respondent's wife's employment required her to start work at an early hour, leaving the respondent to prepare the son for school. The respondent got into bed with his victim, rubbed his victim's penis through his pyjamas, removed the pyjamas and masturbated the boy until he ejaculated. This conduct commenced in October 2003 and continued until December. Count 1 related to the first occasion upon which the respondent masturbated his stepson and count 4 related to the last time the respondent masturbated him. The other count of committing an indecent act and the count of incest concerned an occasion on which the respondent masturbated his stepson's penis and then sucked his penis for some two minutes.

9 The respondent is now 43 years old. He has six older sisters. When the respondent was in his early teens his father was gaoled upon being convicted of sexually molesting his daughters. The respondent left school after year seven and at the age of 15 years obtained employment in a sewing factory. Thereafter he worked as a YMCA program co-ordinator, in a publisher's warehouse and as an indoor cricket umpire.

10 The respondent's criminal history was significant. He admitted 38 prior convictions from six court appearances, which included convictions for a number of sexual offences. In September 1989 the respondent was convicted on 12 counts of taking part of an act of sexual penetration with children and one count of indecent assault. The victims were four boys aged between eight and ten years and the offending consisted of the respondent placing the penis of each boy in his mouth. In 1996 the respondent was convicted on two counts of an indecent act with a child under the age of 16 years. The offending took place against two boys aged nine and 11 years. The respondent masturbated the boys' penises and placed his finger in the anus of the younger boy. In 1998 the respondent was convicted on three counts of indecent assault, the offences relating to a seven-year-old boy, a seven-year-old girl and a ten-year-old girl. The respondent was the victims' uncle. The offending involved the respondent touching the boy's penis and anus, placing his penis into the younger girl's mouth and touching both girls on the vagina.

11 As a consequence of his prior offending the respondent was to be sentenced as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991.

12 The sole ground of appeal is that the individual sentences, the total effective sentence and the non-parole period were each manifestly inadequate. The ground is supported by particulars alleging that the sentence failed to adequately reflect the gravity of the offences, and the sentencing judge failed to take into account or sufficiently take into account the aspects of general and specific deterrence, gave insufficient weight to the effect of the offending upon the victim, the maximum penalties applicable to the offences and the respondent's prior criminal history and gave too much weight to factors said to be mitigatory

13 When the respondent was serving the term of imprisonment imposed upon him in 1996 he commenced a sexual offenders program, the purpose of which was to assist in his rehabilitation. During the course of the program the respondent confessed to the commission of further sexual offences against children. As a consequence of this confession, he was expelled from the program. In 1998 he was sentenced to a term of imprisonment for the offences to which he had confessed. The sentencing judge directed that the term was to be served concurrently with the term imposed in 1996. As the respondent was unable to complete the sexual offenders program, he was denied parole.

14 The sentencing judge said that he had difficulty understanding why the respondent was removed from the sexual offenders program. He said that the removal "disappointed your chances of rehabilitation in the first place." His Honour added:

"Simply incarcerating you for longer periods than ordinarily would be the case to protect the public in a case such as yours does nothing to address and arrest your criminal behaviour."

15 Upon his release from prison the respondent consulted a psychiatrist, who reported that the respondent "was anxious about reforming his life and wanted support". Unfortunately, after three counselling sessions the respondent obtained employment and was unable to arrange further appointments.

16 A psychologist, who was engaged by the respondent's solicitor reported:

"Mr Papworth thus has the dilemma of knowing on one level that his behaviour is wrong, thereby wanting to change, but not feeling that it is wrong. There is also cognitive discrepancy between his acknowledgment that he knows what he does is wrong and his belief that what he does causes no harm. His understanding of the wrongness of his actions is limited to the wrongness being predicated upon its illegality. Thus, he believes that if it were legal to conduct sexual activity upon children it would not be wrong. .... Another reason that he struggles to understand harm is because he does not physically harm his victims. His conception of causing harm children is limited to physical pain."

17 A pre-sentence report was prepared at the request of the sentencing judge. The psychologist who prepared the report said:

"The Static-99, a brief actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males, was administered. Using this instrument Mr Papworth is considered to fall into the Moderate High risk category. Based on review of the available depositional and file information, psychometric testing and clinical interview it is the author's opinion that this assessment under-represents his level of risk at this time. This is due to his strong sexual arousal to children and his lack of insight into the damage which his offending causes his victims."

18 In my opinion the sentence imposed upon the respondent failed to adequately reflect the seriousness of the offences, their potential effects upon the victim and the need for general deterrence and public denunciation of the offending. The gravity with which the crime of incest is viewed is reflected by the maximum sentence of 25 years' imprisonment. The offence of committing an indecent act with a child under the age of 16 years carries a maximum sentence of ten years' imprisonment. I am also of the view that the sentence did not give due weight to the need for personal deterrence in the light of the respondent's record of past offending. The respondent did represent a danger to the community. In my view, however, a sentence proportionate to the gravity of the offences was sufficient to meet the need of protection of the community which s.6D(a) provides is the principal purpose for which the sentence is to be imposed. It is unnecessary to invoke s.6D(b).

19 I would re-sentence the respondent to a term of two years' imprisonment on each of the counts of committing an indecent act with a child under the age of 16 years and to a term of four-and-a-half years' imprisonment on the count of incest. I would direct that nine months of each of the sentences on counts 1 and 4 be served cumulatively upon each other and upon the count of incest but that otherwise all the sentences be served concurrently,[7] creating a total effective sentence of six years' imprisonment. I would fix a period of three years before the respondent is to be eligible for parole. The sentences on the individual counts are those which I consider appropriate having regard to their circumstances and the considerations personal to the respondent. In fixing the total effective sentence I have taken into account the principle of double jeopardy.[8] The fact that the offender has been sentenced as a serious offender on each count is to be entered in the records of the Court.

[1] [2003] VSCA 156.

[2] [2003] VSCA 155; (2003) 6 V.R. 543.

[3] At [20]-[33].

[4] [1996] VicRp 30; [1996] 1 V.R. 436.

[5] See especially [22] and [33].

[6] The sense shows that the comma should be after "on", not "done".

[7] That direction is necessary because of the provisions of s.6E of the Sentencing Act.

[8] Cf. Director of Public Prosecutions v. VH [2004] VSCA 180 at [14] per Callaway, J.A.; Director of Public Prosecutions v. Glazner [2001] VSCA 204 at [11].