DPP v Riddle [2002] VSCA 153

9. During the hearing of the plea in mitigation, the prosecutor tendered, inter alia, 16 victim impact statements relating to eight of the nine victims. It was common ground that the appropriate penalty was an immediate custodial sentence, although Dr Freckelton, for the respondent, urged his Honour to be lenient in imposing the custodial sentence having regard particularly to the respondent's previous good character, the age of the offences, his early plea of guilty and remorse and the unlikelihood of his re-offending. It was also accepted that, should the judge

impose sentences of imprisonment in respect of any of the two counts on the presentment, the respondent would have to be sentenced as a serious offender in respect of the remaining counts in accordance with the Sentencing Act 1991. The court also received a report dated 3 May 2002 from Mr Jeffrey Cummins, a consultant clinical forensic psychologist, who also gave evidence on the respondent's behalf. His counsel also tendered 41 testimonials as to the respondent's good character and read to the court an apology from the respondent to his victims.

13. On 17 May 2002, the learned judge sentenced the respondent, who had no prior convictions, as follows:

counts 4, 6, 8, 9 and 11 - two months' imprisonment

21. Although the respondent was sentenced as a serious offender, the judge considered that it would not be appropriate for him to exercise fully the cumulation contemplated by s.6E of the Sentencing Act. Rather, he directed that upon the sentence of two years' imprisonment imposed in relation to count 2, only the following sentences be served cumulatively with each other and upon count 2: six months of count 1, two months of count 3, two months of count 5, six months of count 12 and four months of count 13, making an additional 20 months to be served cumulatively with each of those counts and with the term imposed in regard to count 2, thus making a total effective sentence of three years and eight months. His Honour then ordered that the respondent serve twelve months of his sentence before being eligible for parole and made a declaration as to pre-sentence detention.

24. By notice of appeal filed on 18 June 2002, the Director appeals against the sentences so imposed on the respondent essentially on the grounds that each head sentence is manifestly inadequate, as are the total effective sentence and the non-parole period. By way of particulars, the Director claims that, in fixing the sentences, his Honour failed:

(a) to reflect adequately the gravity of the offence;

(b) to give sufficient weight to the representative counts on the presentments;

(c) to give sufficient weight to the Serious Offender provisions under Part 2A of the Sentencing Act;

(d) to take into account or sufficiently take into account the aspect of general deterrence;

(e) to give sufficient weight to the effects and consequences of the offences upon the victims.

It was also said that his Honour gave too much weight to factors going to mitigation.

30. Before dealing with the respective arguments put forward on behalf of the parties, it is necessary to set out the circumstances relevant to the offending and to the sentences imposed. The respondent was born on 30 August 1962 and grew up and continued to live in an area near a major regional city in Victoria where his parents were well-known and respected. The respondent himself had a good reputation in the locality. He was a qualified primary school teacher and was active in many local activities through his church and otherwise. Thus, as a schoolteacher, sports master, church youth leader and friend of many families in the area, there were occasions when he was placed in charge of groups of young children and it was essentially in that context that he engaged in the offending conduct which is the subject of the presentment.

33. The offence which is the subject of count 1 was committed by the respondent between October 1971 and October 1972 in the home of A, who was then aged 14. The respondent was the boyfriend of A's sister and frequently visited their home. On the occasion in question, the victim was watching television after school in the family room. The respondent sat next to her on the couch and started talking to her. He then put his arm around her shoulder, felt around her thigh and breast and kissed her, putting his tongue in her mouth. He then put his fingers in her vagina and put her hand on his penis which was, according to A, hard. Approximately one year later, when A was aged 15, the respondent drove her home one evening from Bible Studies and singing practice at the local church. He parked the car outside her house, leant over and touched her breast. He put his hand down his pants and then put his fingers in her vagina. That offending is the subject of count 2. After both the first occasion in the family room and the later occasion, he told A that what he did was wrong and that they should pray for forgiveness. It is apparent from the victim impact statement of A (who is now aged in her forties) that she found the respondent's offending conduct traumatic and confusing, given the relationship between him and her elder sister. She felt she could not tell her parents about the matter because of the impact that might have upon the whole family. Thus, she had to bear the consequences of the respondent's conduct without, she felt, being able to speak to anyone about it.

36. B was A's cousin. At the relevant time, they frequently visited their grandmother who lived in Melbourne. On one such occasion, between January 1975 and January 1977, when B was aged between 13 and 14, the respondent entered the loungeroom of the grandmother's house where B was watching television. When she got up to leave, the respondent grabbed her and tickled her breasts and vagina area over her clothes and then put his hand under her shirt and touched her breasts with his hands. That conduct is the subject of count 3. When the victim reported the incident to her mother, she was not believed. In her victim impact statement, B (who is now aged in her thirties) claims that the assault caused her difficulty in forming intimate relationships and played a role in the difficulties she experienced in her own marriage.

39. The victim of the offence alleged in count 4 was C. The offence occurred in December 1979 when she was aged 12. C was then a pupil at the local primary school and in the school basketball team which was coached by the respondent who was a teacher at the school. The victim was also a member of the church youth group which he had started. One evening, the youth group was taken to a drive-in in a bus driven by the respondent. He parked it sideways to the screen and the children sat alongside of the bus closest to the screen. The respondent sat next to C, put a rug over them, and then put his hand on her thigh near her vagina.

42. Counts 5, 6 and 7 relate to the respondent's indecent conduct against D between 1979 and 1983 when she was aged 11 and 14. She, too, attended the primary school at which the respondent taught and was a member of the school basketball team. The respondent organised events for the children. One such event was a visit to the local drive-in in about May 1979 around the time of her birthday when she was turning 11. As with the case of C, the respondent parked the bus sideways to the screen and instructed all the children to sit on one side of the bus closest to the screen. D sat by herself and during the course of the evening the respondent sat next to her on four separate occasions during the movie and on each occasion rubbed his hand on her thigh area between her legs and up to her vaginal area. Those incidents are the subject of count 5. The next count relates to an incident in 1983, when D was aged 14. The respondent took the church youth group, including D, to a camp at Port Campbell and, when he was helping her to put on her wetsuit, he touched her breast. Count 7 concerns an incident in 1983 at a public swimming pool when D was practising for a swimming test with the respondent. He came over to her and put his mouth over hers.

45. Count 8 is concerned with the respondent's indecent act upon E between February 1982 and February 1984 when she was aged between 12 and 13. The victim knew the respondent as leader of the church youth group of which she was a member. On the occasion in question, when E was swimming at the public swimming pool where the respondent had offended against D, he lifted his hand up and touched her breast for a few seconds.

48. The respondent's offending conduct upon F is the subject of counts 9 and 10. In 1982, when she was 12, F became a member of the respondent's church youth group. It was the respondent's practice, as I have indicated, to drive members of the youth group to their various activities in a bus. On one occasion, when F was seated on a padded area between the driver's seat and the front passenger seat the respondent rubbed his left elbow against the side of her right breast as he drove. According to the victim, this was not an accident because she had to sit on that seat many times after that and the respondent engaged in similar conduct on each such occasion. This conduct is the subject of count 9. Count 10 relates to an event in 1983 when the respondent drove the church youth group to see a football match. He dropped all of the group except F at the entrance to the football ground and then drove around to find a place to park the bus. When he parked it, he leaned over and touched F's breasts. He then kissed her and put his tongue in her mouth and touched her breasts again. In her victim impact statement, F states that these events had an effect on her in the conduct of her own life and in particular in her attitude towards her daughter. She is constantly concerned, inter alia, about her daughter being subjected to similar attacks.

51. Counts 11 and 12 relate to the respondent's offending against G. The first occasion when this occurred was between July 1978 and July 1979 when G was aged approximately 10 and was in Grade 3 at the respondent's school. One morning, when she and the respondent were alone in the classroom, he called her over to where he was sitting and rubbed his hand up her leg under her dress up to her knickers. That conduct constitutes the subject of count 11. Count 12 relates to the respondent's offending which occurred between July 1983 and July 1984 when G was aged 15. She had been a member of the respondent's church youth group for approximately three years and thus, had frequent contact with him. When she was aged 15, she attended a youth camp at Port Campbell and on one occasion there, when she was having a bath, the respondent came in and put his fingers in her vagina. In her victim impact statement G (who is now aged in her thirties) claims, inter alia, that as the result of the respondent's offending she refuses to trust people with her children.

54. Count 13 concerns the respondent's offending conduct against H. The crime in relation to that victim was committed between December 1985 and December 1986 when H was aged 15. On the occasion in question the respondent drove her home one evening after a meeting of his church youth group. He stopped the vehicle outside the victim's home and put her hand on his thigh near his groin and said that she was making him "randy". He then leant over and kissed her on the lips and put his tongue in her mouth. The victim opened the car door, went inside the house, and changed into her pyjamas. She then heard a knock on the front door. When she opened it, she faced the respondent who said that he wanted to check if she was "alright". He then reached out with one hand and felt her breast. In her victim impact statement, H (who is now aged in her thirties) said that as the result of the respondent's offending, she finds it difficult to trust men completely and feels that if she has children, she will fear for their safety.

57. The 14th count concerns J. She and her family worshipped at the respondent's church and her parents had purchased a home with the respondent and his wife at Port Campbell. In the circumstances, therefore, she frequently saw the respondent. Between October 1988 and October 1989, when she was aged 16, J attended a 21st birthday party. She left the party with the respondent to pick up his children. Whilst in the car, the respondent rubbed the thigh area of her right leg with his hand. As will be made apparent later, he engaged in this conduct after he had been confronted in 1987 by H, her parents and the minister of his church concerning his offending conduct against that victim and after he had admitted his wrongdoings to them and to 60 or so members of his church.

60. The above summary of the respondent's offending conduct makes a number of things plain. The first is that the offending was, in many instances, of a predatory nature and that it persisted for a period of some 17 years. Secondly, the victims were all young girls who were, in the main, under his care at the relevant time. Next, the offending constituted serious breaches of trust and confidence that had been reposed in the respondent by the victims, their parents and variously, by his church and school.

63. The extent of the respondent's offending conduct came to light in a piecemeal way and was not fully exposed until some time in the year 2000 It seems that in 1987, H (who was the victim of the offence charged in count 13) told her mother what the respondent had done to her. Thereafter, pursuant to the intervention of the minister of their church, the respondent admitted his wrongdoing to the minister, the victim and to her parents and, later, he made a formal apology, albeit in general terms, to 90 or so members of the church, but he said nothing about his other offending conduct.

66. In 1989 the respondent was confronted, again through the offices of the minister of his church, with the claim that he had engaged in indecent conduct towards F (the victim of the respondent's indecent acts charged in counts 9 and 10). Again, he admitted his wrongdoing to the victim and to her parents as well as to the minister, and, as his counsel told his Honour during the hearing of the plea in mitigation, he confessed to a congregation of 200 to 250 parishioners during a service at the church that he was guilty of misconduct with persons within the congregation and he expressed unreservedly his apology and shame for having thereby disgraced himself, his family and his church. Perhaps understandably, he did not name the two victims or specify his offending conduct in relation to them. But he did not suggest to the minister, for example, that his offending conduct extended to a large number of victims. Not surprisingly, in 1987, the respondent was removed from his leadership role with the church youth group and, not long thereafter, ceased work at the school. This occurred because one of the victims told him that, although she did not intend to go to the police about his indecent act upon her, she may do so if he continued working at a school.

69. In 1993, of his own volition, the respondent spoke to a minister of a Pentecostal Church in Richmond about what he characterised as his sexual perversions and sought spiritual healing, but again, he did not tell the minister about the totality of his offending conduct. That came to public light as a consequence of successful police investigations which were undertaken as a result of an anonymous call which was made to them alleging that the respondent had committed a number of indecent acts in relation to young girls. As a consequence, in August 2000, the police laid some 52 informations against the respondent in respect of his then alleged indecent conduct. He was released on bail on his own undertaking and remained so throughout the proceedings until 17 May 2002 when he was sentenced. It is relevant to note that when he was interviewed by the police at or about the time he was charged, the respondent made a "no comment" record of interview and the police have not sought to re-interview him.

72. At the committal hearing on 19 January 2001 the respondent contested the charges. After the committal, however, discussions took place between the Crown and the representatives of the respondent concerning the possibility of his pleading guilty to some of the charges, but no agreement was reached between them until shortly before the day when the respondent's trial was due to commence. The learned sentencing judge considered that, because there was an extensive process of negotiations between the parties, it could not be said that he had not pleaded guilty at the earliest reasonable opportunity for the purposes of being entitled to a sentencing discount in respect of his plea of guilty.

75. It is appropriate now to set out briefly matters that relate to the respondent's personal situation and the material that was before the learned sentencing judge as to his progress towards rehabilitation. It has already been noted that he is now aged 50 and, until he was sentenced to imprisonment, had lived in the locality in which the offending had taken place. Because of the relatively small size of the community in which the respondent lived, the disclosure of his indecent acts, and the committal proceeding in particular, received significant publicity in the regional press. Hence, whereas prior to the public disclosure of these matters, the respondent and his family, particularly his parents, were well known and respected in the district, after the disclosures, said Dr Freckelton to the sentencing judge, his family were and will be associated with "shame and sexual offending". All this weighed heavily on the respondent, said his counsel, and it was claimed that this was a form of punishment which he has endured and will continue to suffer. Moreover, it was pointed out, the respondent has lost his vocation as a school teacher and had to seek to earn a living through other avenues such as operating a shop and then a garden maintenance business. On the positive side, however, the respondent enjoys sympathy and support from a significant section of the local community as seems to be evidenced by the 41 testimonials to which reference has already been made. In particular, he has the support of his parents and siblings, his wife and his three children.

78. It is also relevant to note that Mr Cummins classified the respondent as having been paedophilic during his period of offending, but considered that, of late, he had confronted his behaviour, that his rehabilitation was advanced and that the likelihood of the respondent re-offending was minimal. Nevertheless, it was his view that the paedophilic thoughts and tendencies might return in the future and, therefore, the matter would "need to be kept under control". He also considered that the respondent should undergo a sex offenders program in the future. As Dr Freckelton submitted to us, it seems that his Honour accepted Mr Cummins's evidence that the risk of the respondent re-offending was not significant.

81. His Honour was faced with a very difficult sentencing exercise and went about his task carefully and thoroughly, but there is much to be said for the Director's submission that, in essence, his Honour's characterisation in relation to the seriousness of the offences was overly refined and, in the end, perhaps unhelpful. That is not to say, however, that the judge failed to have regard to relevant considerations or that he took into account irrelevant matters when constructing the sentence. Thus, it is apparent that the judge noted that the respondent's offending conduct varied from that which was very serious - vaginal digital penetration - to much less heinous acts such as fleetingly touching the victim's breast. His Honour nevertheless recognised that in each case the offending was aggravated by a breach of trust by the respondent variously as a teacher, a sports master, a church youth group leader or relative or family friend. Moreover, the learned judge also took into account in his sentencing considerations that the victims were young girls. Furthermore, his Honour relevantly had regard to the pertinent parts of the victim impact statements.

84. The learned Director, who appeared to prosecute the appeal, accepted at the outset that the principles that govern Crown appeals are those that are set out in the judgment of Charles, J.A.[1] in R. v. Clarke[2]. In particular, he acknowledged that appeals of this nature should be brought in only rare and exceptional circumstances but contended, correctly, in my view, that such an exceptional circumstance is present where the "sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle ..."[3]. Consistently with the terms of the notice of appeal, the Director's case before us was that each head sentence and the overall sentence were manifestly inadequate and thus demonstrated sentencing error. It was also put that the non-parole period was manifestly inadequate, although the Director recognised that this issue would only arise for consideration if this Court took the view that there was no relevant error in respect of any of the individual sentences or the overall sentence.

87. The Director argued that the sentence imposed on each count of indecent assault was extremely lenient and pointed to the fact that the highest individual sentence on any one count was two years (for counts 2 and 12) and that there was no cumulation of sentence relating to the offending charged by counts 8, 9, 10 and 14. It was said that, notwithstanding that the offending in respect of those counts was the least serious of all the respondent's criminal acts, some cumulation was warranted, particularly bearing in mind that two of the victims, E and F, were only aged 12 or 13 at the time of the offending and were under the respondent's care. The offending against J (count 14), it was said, occurred after the respondent had made his confession to two of the victims in the manner described earlier and thus, some cumulation was also warranted. Moreover, the Director claimed, notwithstanding the mitigating factors that were present in this case, the overall sentence of three years and eight months (and the non-parole period) does not reflect the extent of the criminality of the respondent's offending conduct which persisted for 17 years.

90. Not surprisingly, Dr Freckelton also submitted, in essence, that this appeal should be governed by the principles set out in Clarke (and other cases[4]). Thus, it was essentially common ground that, in order to succeed in the appeal, the Director would have to satisfy this Court that the sentences were manifestly inadequate. In his helpful and well structured submissions, Dr Freckelton pointed out that the learned judge did not make any specific sentencing errors (and none were alleged by the Director) and that his Honour discerningly evaluated the level of criminality of each offence and carefully constructed a cumulation of sentences so as to reflect the totality of the respondent's criminal conduct. Counsel argued that it is apparent from the sentencing remarks that his Honour did not cumulate the sentences relating to E, F and J because he characterised them at the lower end of the spectrum of offending. Moreover, counsel submitted, the learned judge did not overlook the need to sentence the respondent as a serious sexual offender, but in having regard to it, he probably took into account the evidence of Mr Cummins that the respondent was not likely to re-offend, thus making it less likely that he would constitute a risk to the community. This, it was said, in turn rendered the requirement of s.6D(a) of the Sentencing Act less relevant to the sentencing process in this case.

93. In summary, Dr Freckelton submitted that the sentence of three years and eight months' imprisonment imposed on the respondent was not insignificant and falls within the range properly available to the judge given the proper application of the principle of totality.

96. In my view, it is apparent from his Honour's carefully considered sentencing remarks that he took into account, in determining the appropriate sentence, factors which the Director claimed the judge either failed to consider or failed to consider sufficiently. This included the principle of totality which was of relevance in constructing a sentence which, in the opinion of the judge, would reflect the criminality of the respondent's conduct over the 17-year period of offending. It is also apparent that the judge had regard to relevant mitigating factors.

99. That being said, however, it does not follow that the sentences imposed by the learned judge were not manifestly inadequate. Whether a sentence is to be so characterised does not ordinarily admit of much argument. Once the relevant circumstances have been identified, then the sentence appears on its face to be manifestly inadequate or it does not. In this case, it seems to me that, whatever may be said about the appropriateness of the individual sentences, the overall sentence is manifestly inadequate since it does not reflect the criminality of the respondent's long period of predatory offending. The commission of sexual offences on children is obviously a serious matter, as his Honour recognised and in this case the circumstances of the offending were grievous. Clearly, the respondent's criminal conduct was, in most instances, of a predatory nature, and persisted over a period of some 17 years. It involved serious breaches of trust and confidence in respect of nine young girls and had a lasting detrimental effect on a number of them, as their respective victim impact statements amply demonstrate. Moreover, the principles of general deterrence and condemnation and just punishment for the crimes are very important sentencing considerations in this case. They call for a significant overall sentence, as does the fact that the respondent was, for the purposes of the Sentencing Act, a serious offender. The mitigating circumstances that his Honour recognised must, of course, be balanced against such aggravating factors. In that context, however, it should be said that if the respondent felt genuine remorse for his conduct and accepted the gravity of the offending, these matters were, at best, demonstrated only relatively recently. It will be recalled that when he admitted to the minister of his church and to the respective parents of H and F that he had sexually abused the respective victims, he did not then admit his other offending. Moreover, his two apologies for his misconduct to them, and to members of his church and congregation made somewhat dramatically, seem to have been hollow given that thereafter, he proceeded to engage in like offending against J, thereby demonstrating what seems to have been an entrenched tendency to pursue such behaviour. When the police finally charged him with having committed the offences, the respondent made no admissions, but made a "no comment" record of interview. He contested the committal proceeding and only when confronted with the inevitability of the matter going to trial did he plead guilty to the counts in question. It seems to me that the relevance to the sentencing disposition of genuine remorse and the respondent's appreciation of the extent of his misconduct must be viewed in that context. Similarly, the fact that the respondent had not offended since approximately 1989 must be looked at in the context of his opportunity for such behaviour having been significantly reduced, given that he was removed from his position of trust by his church and was effectively forced not to work at a school.

102. In all the circumstances, it is my opinion that the overall sentence is not merely at the very low end of the range that was properly available to the learned judge but is manifestly inadequate. Consequently, I think that the appeal should be allowed and the respondent re-sentenced. In re-sentencing the respondent, the Court is required to apply the principle of "double jeopardy" as explained by the High Court. This principle is set out in the judgment of Charles, J.A. in Clarke in the following terms[5]:

"When, in response to a Crown appeal, the Court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at the first instance."

In all the circumstances and bearing in mind the principle of double jeopardy, I would sentence the respondent to a term of imprisonment of five years by increasing the cumulation ordered by his Honour in respect of counts 1, 3, 5 and 12 by three months, one month, one month and nine months respectively, and I would order cumulation of two months of the sentence imposed on count 10. As to the non-parole period, again bearing in mind the principle of double jeopardy and the respondent's reasonable prospects of rehabilitation, I would order that he serve two years and six months of the overall sentence before becoming eligible for parole. Should the other members of the Court agree in this, it will be necessary to declare a period of pre-sentence detention, namely, between 17 May 2002 and today. The parties have agreed that the period is 118 days.

109. I agree. Although there were three grounds of appeal - that the sentence imposed in respect of each of the 14 counts was manifestly inadequate, that the total effective sentence imposed was manifestly inadequate and that the non-parole period was so fixed as to be manifestly inadequate - in the end I, too, have concluded that there was manifest inadequacy not so much in the individual sentences meted out but in the total effective sentence that was produced by the various orders for cumulation. It seems to me that that end result did not sufficiently reflect the seriousness of the offending, having regard in particular to the significant breaches of trust involved.

112. I agree, too, in his Honour's proposal for the re-sentencing of the respondent.

116. Over the last few years this community has been required to face and respond to an appalling incidence of child abuse and the frequently terrible consequences which have followed. Those consequences, even in terms of the behaviour of ordinary decent adults interacting with children in the course of their work or social activities, have been profound. Slowly but surely we have come to recognise that many of the perpetrators are people who have taken advantage of powerful positions of trust and dominance, as parents, teachers, members of the clergy or in activity groups of one kind or another, to engage in such behaviours. On occasions they have done this, as here, for many years. Sometimes, due to the age of the victims and the manipulative ability of those who prey upon them, the commission of offences of this kind may not emerge until much later, and not until great damage has been occasioned.

119. 35 For more than one reason the principles of just punishment, public denunciation and general deterrence assume considerable significance as sentencing considerations in such cases. I agree, against that background and for the reasons given by Chernov, J.A., that the total effective sentence imposed on the respondent was manifestly inadequate, and I agree with the disposition that he has proposed.

2. The Court confirms the sentences imposed respectively on each of the 14 counts of which the appellant was convicted. The Court sets aside all of the orders for cumulation and the order fixing the non-parole period. The Court orders in lieu that 9 months of the sentence imposed on count 1, that 3 months of the sentence imposed on count 3, that 3 months of the sentence imposed on count 5, that 2 months of the sentence imposed on count 10, that 15 months of the sentence imposed on count 12 and that 4 months of the sentence imposed on count 13 be served cumulatively each upon the other and upon the sentence of 2 years imposed on count 2. Otherwise all sentences are to be served concurrently. The result of the foregoing is a total effective sentence of 5 years' imprisonment, and the Court fixes the period of 2 years and 6 months as the period to be served before becoming eligible for parole.

The Court declares that as at this day, 11 September 2002, 118 days be reckoned as already having been served under the sentences and the Court directs that the making of that declaration and its contents be noted in the records of the Court, together with the fact that in relation to counts 3 to 14 (inclusive) the appellant was sentenced as a serious offender.

The Court grants the respondent an indemnity certificate under s.15 of the Appeal Costs Act.

[1] With whom the President and Hayne, J.A. agreed.

[2] [1999] 2 V.R. 520 at 522.

[4] DPP v. Whiteside and Dieber [20000] VSCA 142 at [17]; SBL at [25] and R. v. Osenkowski (1982) 30 S.A.S.R. 212 at 213. To these cases may be added, inter alia, R. v. SJK and GAS [2002] VSCA 131 at [49, 59].

[5] At 522. See also R. v. Allpass (1994) 72 A.Crim.R. 561 at 562 per Gleeson, C.J., Hunt, C.J. at CL and McInerney, J.