DPP v R A L [2008] VSCA 140

Court of Appeal (Vic)|2008-08-07|Before: VINCENT and NETTLE JJA and MANDIE AJA

CRIMINAL LAW - Sentencing - Appeal by Director of Public Prosecutions - 10 representative counts of incest and three of indecent assault on natural daughter and son - Aged 64 at time of sentencing for similar offences - Now aged 70 at time of sentencing - Considerations of double jeopardy, delay and previous incarceration - Appeal refused - Original sentence of six years and six months with a non-parole period of four years upheld.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 I will invite Nettle JA to deliver the first judgment in this matter.

2 This is a Crown appeal against a total effective sentence of six years and six months' imprisonment, with a non-parole period of four years, which was imposed on the respondent after pleading guilty to ten representative counts of carnal knowledge of his natural daughter (incest) and three counts of indecent assault committed upon his natural son. The Director of Public Prosecutions contends that the individual sentences, the total effective sentence and the non-parole period are all manifestly inadequate.

3 The circumstances of the offending are described in part in the judge's sentencing remarks and further in the Crown's submissions on the plea. The respondent was born in Melbourne in 1936 and at the time of sentencing on 27 July 2007 was 70 years of age. He was one of seven children who had been raised by parents who were active in the Salvation Army and regularly attended church. It was said to be a close-knit family and during his childhood years he was not ever subjected to any physical, emotional or sexual abuse. After leaving school he worked on a farm between the ages of 15 and 19, and in 1956 he joined the Royal Australian Air Force. In 1958, during his first tour of duty in Malaya, he met and married his first wife, and that marriage resulted in three daughters and a son. It lasted until his first wife left him when he returned to Australia with the children in 1974.

4 Each of the ten counts of incest was a representative count of penile vaginal penetration of one of the respondent's daughters while living at Laverton. In opening the facts to the judge below, the prosecutor stated that the victim estimated that, over the two-year period in which they lived in Laverton, the respondent sexually assaulted her on between 300 and 400 occasions, by penetrating her vagina with his penis.

5 Count 1 related to an incident which occurred at Laverton between 18 January 1975 and 31 March 1975, approximately one year after moving to a house in that area. The respondent had been seeing a woman but the relationship had recently come to an end. As was then the respondent's practice, he went to his daughter's bedroom at about midnight and said to her, 'It's time to do our usual thing.' He told her to undo his pyjamas and pull out his penis and play with it and make it hard and erect. He then penetrated her vagina with his penis and thrust it in and out for approximately twenty minutes, saying as he did so, 'Doesn't this feel good? Do you feel good? Are you now enjoying yourself? That's how much I love you.' He then withdrew his penis from her vagina and ejaculated on her stomach, gave her a kiss on the cheek, and said goodnight. That count was representative of each such incident which occurred between 18 January 1975 and 31 March 1975.

6 Count 2 alleged an incident which occurred between 1 April 1975 and 30 June 1975, just after the victim's 14th birthday. The respondent told the victim that he had a surprise to show her. He told her to sit down on the bed and he put a pornographic video on the video player. He then masturbated himself and penetrated her vagina with his penis, and continued to do so even though it was causing her pain, and she was asking him to stop. Count 2 was representative of all such incidents between 1 April 1975 and 30 June 1975.

7 Count 3 alleged an incident which occurred between 1 July 1975 and 30 September 1975, when the victim was 14 years old, and was representative of each act of intercourse between those two dates. On the occasion in question, the respondent showed the victim another pornographic video. She then went to bed at 8.30 p.m. and he sat next to her on the bed and caressed her hair. He next grabbed her by the hand and made her play with his penis, and then spread her legs apart and forced his penis into her vagina, whereafter he continued to have sexual intercourse with her for the next twenty minutes.

8 Count 4 alleged an incident which occurred between 1 October 1975 and 31 December 1975 and was representative of each act of intercourse within that period. On that occasion the respondent climbed on top of the victim and thrust his penis straight into her vagina. It caused her a lot of pain. He then thrust in and out very hard and continued to do so, even though she was crying and saying to him, 'Please, Dad, can you stop, I'm in pain.' He continued until he ejaculated inside her. When he got off her, there was blood, she said, 'everywhere', and he told her to go and clean herself up, and that she would be fine. For the next month she was concerned that she would fall pregnant.

9 Count 5 alleged an incident which occurred between 1 January 1976 and 31 March 1976 and was representative of each such act of intercourse within that period. The victim had just turned 16, and the respondent and she and the other children had moved to a caravan park at the other end of Laverton, near a speedway and drive-in cinema. The victim was home alone with the respondent on a hot day, dressed in a skirt and top and reading a magazine. He began to fondle and squeeze her breast, saying, 'Doesn't that feel good?' She was angry and frightened, but he told her to take her underpants off, which she did. He then told her to sit on the edge of the table facing him. He sat on the end of the table, made her spread her legs, and then shoved his penis into her vagina. It hurt her, but he continued to penetrate her vigorously for the next ten minutes. She hung on to the table, waiting for him to finish, until he ejaculated over her vagina. He had a smile on his face, and went and washed himself, and then said, 'I'll have some lunch now.'

10 Count 6 alleged an incident which occurred between 1 April 1976 and 30 June 1976 and was representative of each such act of intercourse within that period. The victim had gone to sit in the annex to the caravan because she did not want to speak to the respondent or be near him. He came into the annex, however, and said, 'I'll go for a walk to cool down.' She did not want to go with him but did because she feared being hurt if she did not. There was a large paddock adjacent to the caravan park and they went there where nobody else was around. He asked her if he could kiss her on the lips and she refused, but he did so anyway, pushing his tongue into her mouth. She tried to pull away, but he would not let her do so, and continued with his tongue in her mouth. Then he grabbed hold of her hand and put it on his penis, and he continued to kiss her for the next five or so minutes. After that he told her to lie on the grass, took off his own shorts, pulled down her knickers to her knees, and inserted his fingers into her vagina. Next he took off her knickers completely, lay on top of her and penetrated her vagina with his penis and then continued to move his penis in and out of her vagina for the next ten minutes, saying as he did so that he felt good. Finally, immediately before ejaculating, he withdrew and stood up and then ejaculated over her face. She said that it made her feel sick to her stomach.

11 Count 7 alleged an incident which occurred between 1 July 1976 and 30 September 1976 and was representative of each such act of intercourse within that period. It was a Friday night. The respondent had allowed his other two daughters to go out to visit friends but required the victim to stay at home. She was angry with him for letting the others go out while keeping her at home and told him that it was not fair. He told her that she was not to speak to him like that, and she replied that he just wanted her there so he could do whatever he wanted to her, whenever he felt like doing it. He then said that she wanted it and she encouraged it, and that it was what love was all about, and she replied that she never wanted it. With that, he walked into his bedroom and came back with a thick strap, made her take off her clothes and stand completely naked in front of him with her back to him. She was embarrassed and crying, but could hear him masturbating himself, which continued for approximately five minutes. He then without warning rammed his penis into her vagina very hard from behind. She found it very painful and thought it was going to split her but he continued to have intercourse with her for the next fifteen minutes. It concluded when he withdrew his penis from her vagina, told her to turn around, which she did, and he then masturbated in front of her until he ejaculated, again over her face. She was very sore, bruised and shocked.

12 Count 8 alleged an incident which occurred on 31 October 1976. The respondent took the victim to a place outside Bacchus Marsh to look for a horse. When they were half-way there, he turned the car down a side road, drove for about twenty minutes, and came to an area where nobody was around. He stopped the car beside the paddock and she asked him why he had done so. He replied that, 'I need a fix before we go and see this horse.' She heard him pull down his zip and he told her to turn around and look at him. When she did so, he was masturbating. He told her to come towards him and to suck his penis, which she did for three to four minutes. He then made her take off her jeans and underwear and shoes and stand above him and lower herself on to his penis. He inserted his penis into her vagina at the same time, and told her that this was what sex was all about. He next grabbed her waist and moved her up and down slowly for ten to fifteen minutes, and then finally withdrew his penis from her vagina and ejaculated over her stomach.

13 Count 9 alleged an incident which occurred the next day. The respondent came home from work at about 5.30 p.m. He told the victim that he would be in tonight to give her a good kiss, meaning that he would come to her room. At about midnight, he came to her room, came close to the bed and said to her, 'You're not talking much tonight.' She said she was not feeling well and she refused to look at him. With that he sat down and started caressing her hair, saying as he did so, 'Daddy will make you feel good, he loves you.' She said, 'Please, not tonight, I'm not feeling well, please no,' but it did not stop him. He took off her knickers, spread her legs and lifted up her nightie. He then lay down on top of her with his penis sticking out of the fly of his pyjama pants, and penetrated her vagina with his penis. Then he continued to have sexual intercourse with her for the next ten minutes, telling her as he did so how much he loved her, and to enjoy what he was doing, because it was the right thing. She was crying, but she was too frightened to say anything to him.

14 Count 10 alleged an incident which occurred between 1 December 1976 and 21 January 1977 and was representative of each such act of intercourse within that period. The victim was still very sore from previous acts of intercourse. The other girls were at school and the respondent came from work at lunch time. She was shocked to see him because he did not ordinarily come home for lunch unless he were in the area. He came towards her in the kitchen as she stood at the kitchen sink, and he grabbed her, saying, 'You need a big hug from your dad.' He started rubbing his hand up and down her back, caressing her. He also rubbed his penis into her groin in front of her and continued to do so for about five minutes. He then told her to pull down her knickers. She said that she didn't want to, and he told her to do as she was told. She said again that she didn't want to, and with that he told her to lean over the sink, which she did. She could hear him undoing his zip and pulling down his own pants. He next lifted up her dress and told her to spread her legs, and he then entered her vagina with his penis from behind. He continued to have intercourse with her for ten minutes or so, before pulling out his penis and ejaculating over her bottom. At that point he left the room to wash himself, leaving his pants on the kitchen floor. Then he returned, put on his pants, and said, 'I'll see you tonight,' and left.

15 The respondent's sexual abuse of his daughter by acts of intercourse of which counts 1 to 10 were representative continued until she ran away from home at the age of 17. In her victim impact statement she said that she had suffered extreme emotional and psychological trauma since the offences. She still suffers from anxiety, depression, headaches, panic attacks, nightmares, excessive weight loss, fatigue and suicidal tendencies. She is overwhelmed by a feeling of grief and guilt and it has led to self-loathing and irrational anger.

16 Counts 11, 12 and 13 were individual counts of indecent assault committed on the respondent's son. Count 11 alleged an incident which occurred between 1 January 1975 and 31 December 1975, when the respondent was living with his children in Laverton. He and his 14-year-old son were watching television together in the lounge room. The boy was sitting next to him and the respondent asked him to wrestle with him. They wrestled on the lounge room floor and ended up in the bedroom. The respondent said, 'I'll teach you to muscle-grab.' He then grabbed the boy's genitals firmly through his shorts. The boy was shocked but allowed the respondent to continue.

17 Count 12 concerned the same incident. After holding the boy's genitals, the respondent pulled down the boy's pants and masturbated him until he ejaculated in a towel. He also asked the boy to masturbate the respondent because he was sexually aroused.

18 Count 13 involved a similar incident which occurred between 1 January 1975 and 31 December 1975. The respondent wrestled on the lounge room floor in front of two of the victim's sisters, and again ended up in the respondent's bedroom with a muscle-grab. The respondent once more masturbated the victim until he ejaculated into a towel.

19 In his victim impact statement, the victim said that the respondent had always told him, 'This is our secret, don't tell anyone.' He was left on his own to cope with many emotional and psychological problems. He now suffers from depression, sadness, insomnia, low self-esteem, and impaired ability to form trusting relationships. He feels that the respondent betrayed his trust and took away his childhood.

20 In her sentencing remarks, the judge noted that the respondent had remarried in 1979, when he was 42, to a woman who was 24 years his junior, and from that marriage (which had lasted until 1991) the respondent had had three more daughters and one more son. Her Honour also noted that on 24 August 2000 the respondent was sentenced in the Bundaberg District Court in Queensland to five years' imprisonment on three charges of a sexual nature involving his daughters from his second marriage, and that on 12 October 2000 he was convicted of four further offences of a similar nature and sentenced to five years and nine months' imprisonment to be served concurrently with the earlier sentence. He was not granted any remissions, and returned to Victoria on 20 February 2006 to continue serving his sentence in this state. He completed that sentence on 11 July 2006, after which he remained in gaol in Victoria awaiting disposition of the subject charges. Her Honour observed that in the result the respondent fell to be sentenced on the subject offences as a serious sexual offender, so that community protection was the primary sentencing consideration but that she was of the view that it was not necessary to impose a disproportionate sentence.

21 The judge also noted the opinion of Dr Danny Sullivan, consultant psychiatrist, that the respondent's offending was restricted to interfamilial sexual offences, and that that group of offenders is statistically a low risk for re-offending. Given the respondent's age (it has been noticed, he was 70 at the time of sentencing), and the absence of substance abuse or evidence of other antisocial behaviour or deviant sexual arousal, Dr Sullivan considered the respondent was unlikely to pose a significant risk in the future, although he was of the view that the respondent's access to grandchildren should be restricted. There was as well some evidence that the respondent had been exposed to asbestos during earlier life and recent X-ray and CT scans were highly suggestive of an increased risk of developing a disease connected with that exposure.

22 As the judge observed, the respondent had completed a sex offenders course in custody and shown remorse and wanted to be rehabilitated back into society. Her Honour also took into account that, if the subject offences had been dealt with at the same time as the Queensland offences, there could have been some concurrency, and that instead the respondent had had the subject charges hanging over his head for six years. As her Honour noted, however, it was necessary to balance that consideration against the seriousness of the offences, the effect of them on the victim, and the need for specific and general deterrence.

23 The maximum sentence for each offence of incest was 20 years' imprisonment and the maximum sentence for each count of indecent assault was five years' imprisonment. The Director contends that as it was, however, the greatest individual sentence imposed on any count of incest was only three years and six months, and that the maximum sentence imposed on any count of indecent assault was only 15 months. Given the serious nature of the offences the subject of counts 1 to 10, and that they were representative of some 300 to 400 instances of sexual penetration of the respondent's daughter over several years, the Director submits that they necessitated much larger individual sentences than any which were imposed. So too, he says, with counts 11, 12 and 13. The gross breach of trust and nature of offending which were involved necessitated larger penalties than the 15 months at which the judge arrived, or at least a considerably greater degree of cumulation. In the Director's submission, it is apparent that the judge under-estimated the need for general deterrence and specific deterrence and gave insufficient weight to the respondent's other criminal offending and the effect of the subject offences on the victim.

24 The respondent contends that, given the range of mitigatory considerations to which the judge properly had regard, including the respondent's age and ill health, relatively early plea of guilty, evident remorse, lack of prior convictions other than for the Queensland offences, prospects of rehabilitation, and the fact that at the time of sentencing he had already served six years' imprisonment for the Queensland offences and remained in gaol awaiting disposition of the subject offences, the individual sentences and orders for concurrency were within the range available to the judge. Alternatively, it was contended that, even if some of the individual sentences were outside the range, the appeal should be dismissed in the exercise of discretion because, once moderated for double jeopardy, any sentence which might be imposed on a re-sentencing would be so close to the original that the Court should not intervene.

25 Plainly there is some force in the Director's submissions. Over the period 2001 to 2006 the median custodial sentence for incest ranged between three years' and four years' imprisonment. The offences of incest involved in this case, however, are at the serious end of the range and so ordinarily would attract a substantially larger sentence. For example, in Director of Public Prosecutions v VH,[1] the Court upheld a Crown appeal against a total effective sentence of seven years' imprisonment with a non-parole period of five years. In R v GJN,[2] the Court rejected an appeal against an individual sentence of seven years' imprisonment imposed on four counts of incest on a child under the age of ten years. In R v Elliott,[3] the Court rejected an appeal against an individual sentence of seven years imposed on a representative count of incest on a male child under 16 years. And, as appears from sentencing statistics for the period 2001 to 2006, in a case at the higher end of the range the individual sentence was as much as ten years' imprisonment.

26 Consequently, if the respondent were a younger and healthier man, and if he had not been in prison since 2000 on charges of the type in question, I should not doubt that a sentence of only six-and-a-half years with a non-parole period of four years was manifestly inadequate. Given the gravity of the offences, the representative nature of each of the first ten counts, and that the respondent fell to be sentenced as a serious sexual offender on each count, one might expect individual sentences of upwards of six years, with substantial cumulation as between them.[4]

27 The fact is, however, that at the time of sentencing the respondent was close to 71 years of age and had been in prison for in excess of six years on account of sexual offences committed against his children in Queensland and latterly awaiting trial for the subject offences. In that state of affairs it was, as counsel for the respondent submitted, necessary for the judge to consider what effective head sentence would likely have been imposed if the respondent had committed the Queensland and Victorian offences in the one jurisdiction and been sentenced for all of them at the same time. The lengthy delay in dealing with the subject offences necessitated a considerable measure of understanding and flexibility of approach. Additionally, the age and ill health of the respondent had to be brought to account because time in prison for such an offender would likely be more onerous than for a younger and fitter man, and because the need for general deterrence might not be thought of as being as significant as it would be in a case of a younger and fitter offender. Consistent with high authority, it was therefore open to her Honour to take the view that these were circumstances which required what might otherwise be a quite undue degree of leniency being extended to the respondent.[5]

28 As is sometimes necessary to repeat, a Crown appeal against a sentence should not be brought unless the sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle, and manifest inadequacy is not alone sufficient to warrant appellate intervention. As Redlich JA reiterated in Bright,[6] something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges:

A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke and Director of Public Prosecutions (Vic) v Johnston. One is that an appeal should not be brought unless the sentence reveals such 'manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle'. An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be 'clear and egregious', the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and 'undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes'. When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown

appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a 'rare and exceptional' character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.[7]

29 Given the mitigatory factors of age, ill-health, delay, and previous incarceration which apply in this case, I do not consider that the sentence which was imposed is so disproportionate to the seriousness of the crime as to shock the public conscience or undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. I would therefore refuse the appeal.

30 I agree that this appeal should be dismissed. I do so for the reasons given by Nettle JA. Were it not for the presence of the particular considerations to which his Honour directed attention in his judgment, and which were clearly taken into consideration by the sentencing judge, I would have had no hesitation in concluding that the individual sentences and the total effective sentence imposed upon the respondent were manifestly inadequate.

32 The order of the Court is that this appeal stands dismissed.

33 A certificate is granted to the respondent under s 15(1) of the Appeal Costs Act 1998.

[5] Mill v The Queen (1988) 166 CLR 59, 64.

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