DPP v Shields [2005] VSCA 150

1 The respondent pleaded guilty in the County Court at Bairnsdale, on 17 January 2005, to six counts of the commission of an indecent act with a child under the age of 16 years (counts 1 to 5 on the presentment), and one count of maintaining a sexual relationship with a child under the age of 16 years (count 6). Counts 1 to 5 relate to offences registrable as class 2 offences under the Sexual Offenders Registration Act 2004 and count 6 involves a class 1 offence under that Act.

2 After hearing a plea in mitigation of penalty, the learned sentencing judge imposed a sentence of imprisonment of three months upon the respondent in respect of each of counts 1 to 5 and a sentence of imprisonment of three years on count 6. His Honour directed that one month of the sentence imposed on count 1 be served cumulatively upon that imposed on count 6, and two months of the sentences imposed on each of counts 2 to 5 inclusive be served concurrently with each other and the sentence imposed on count 6. This created a total effective sentence of three years and five months' imprisonment of which his Honour ordered that the service of two years and eight months be suspended for a period of two years, leaving a period of immediate incarceration of nine months. He further directed that it be entered into the records that the respondent had been sentenced as a serious sexual offender in respect of counts 2, 3, 4 and 5.

3 The Director has appealed against these sentences on two grounds:

"1. that the individual sentences and the total effective sentence are each manifestly inadequate; and

2. that the total effective sentence was imposed in breach of s.27(2) of the Sentencing Act 1991."

4 Although the principles upon which this Court must act in considering a Crown appeal against sentence are well known, it is, I think, desirable in view of the conclusion at which I have arrived, to refer to the statement of them set out in the judgment of Charles J. in R. v. Clark[1]:

"1. An appeal by the Crown should be brought only in "the rare and exceptional case" ... to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy" ... .

2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle ... ; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons ... ; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience ... ; (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing ... .

3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact ... .

Allpass is also authority for the following propositions:

4. 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 first instance.

5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."

5 I now turn to the grounds of this case and for reasons which will quickly emerge I will commence with Ground 2.

6 Relevantly for present purposes, s.27(2) of the Sentencing Act reads:

"A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is convicted of more than one offence in the proceeding -

(a) does not exceed 3 years in the case of the Supreme Court or the County Court; ..."

7 As it is clear that his Honour did fall into error, as contended on behalf of the appellant, in making an order for the suspension of part of the period of incarceration ordered in a case in which the aggregate period of imprisonment exceeded three years, this ground is obviously made out. Simply put, his Honour had no power to make the order that he did. In that situation the intervention of the court is not only justified but necessary to ensure compliance with both the applicable statutory provisions and proper sentencing practice. However, it must be borne in mind that the propositions set out above still have application in the consideration of the extent and form of intervention required.

8 The following rather bland description of the circumstances of the respondent's offending is based upon the outline of his conduct given by the prosecutor to the sentencing judge in the plea hearing and his Honour's sentencing remarks.

Counts 1 and 2

9 [S] is the respondents natural granddaughter. Counts 1 and 2 refer to two separate incidents that occurred in 2001 when she was aged about 10 or 11 years. She would, at that time, often visit the respondent at his house in Moe, which was located near her school. On some occasions she would stay overnight.

10 Count 1 refers to an incident that took place when she was at the respondent's house on one of those visits. It commenced when he was in the bathroom and he called for her. When she entered the room he asked her to remove a small sticker that he had apparently placed on his scrotum. She took the sticker from his body and put it in the bin.

11 Count 2 refers to another incident at the respondent's house. On that occasion the victim and he were in the kitchen. At some point he pulled down his pants and masturbated in front of her till he ejaculated onto a paper towel which he then disposed of in the kitchen bin.

Counts 3, 4 and 5

12 [A] was a friend of [M], the daughter of the respondent's son's de facto wife and who could therefore loosely be described as a step-granddaughter. This, it seems to be fairly clear, was the accepted characterisation within the family of his relationship with her. On several occasions when she was aged ten or eleven years, [A], who lived nearby, would go to the respondent's house with one or both of the other victims, sometimes staying overnight.

13 On one such occasion in 2001, she was lying on the respondent's bed with M while a pornographic video was playing on a television set in the room. The respondent then sat on the edge of the bed and masturbated himself in the girls' presence (count 3).

14 Count 4 refers to a separate incident in the same year, when [A] was again staying overnight at the respondent's home. On this occasion, he rubbed a cream on her body including her breast area.

15 Count 5 refers to a similar incident in the following year when the respondent rubbed cream over the whole of the naked body of the young girl on an occasion when she was at the house with [M] and after the two girls had had a bath.

Count 6

16 [M], as I have mentioned, is the daughter of the respondent's son's de facto wife. During the period when this victim was aged between 10 and 13 years, that is, between 1 January 2001 and 31 December 2003, the respondent engaged in a large number of separate acts with her that included the touching by his fingers and tongue of the vagina and on one occasion the introduction of his penis into her mouth. She would often masturbate him and he would massage her breasts. The activities would take place when she was staying overnight at his house. One feature of the circumstances surrounding the respondent's conduct towards [M] that I regard as particularly aggravating is the fact that among the reasons why [M] would visit him regularly was that her own home life was disturbed with arguments between her mother and her mother's partner. The respondent offered the young girls some personal freedom and apparent affection to which she responded with trust that he then abused.

17 When interviewed by the police the respondent made full admissions and subsequently entered a plea of guilty at an early stage. He has no prior convictions.

18 At the plea, the prosecutor tendered victim impact statements from the victims [A] and [M] and a note from a Dr Jin Kee (regarding treatment to [A] for a persistent facial rash that developed as a stress response). It is evident that each of these girls has been severely affected. Although [S] declined to make a victim impact statement, it is reasonable to assume that her situation would be little different.

19 The offences committed by the respondent were, whether individually considered or viewed in totality, very serious. There were three young and vulnerable victims in a period of offending of approximately three years, and when regard is had to the behaviour on which count 6 is based, a large number of separate criminal acts were committed by the respondent.

20 No need exists to recite any of the many powerful expressions by members of this Court, over recent years, concerning the gravity of such behaviour or the recognition by the court of the obligation upon sentencing judges to reflect that gravity in their dispositions. Nor is there any necessity to elaborate upon the importance attributed by the community, which this Court represents, to the protection of children against predatory abuse by those to whom their care is entrusted or with whom they come into contact. I suspect, and certainly hope, that there would be very few in our society who would require any such explanation.

21 The sentencing judge in the present case was mindful of these considerations as he said:

"[T]he courts have a special and precious duty to protect children. Children have a particular vulnerability. They are especially vulnerable to abuse of trust. As they are immature in their understanding of right or wrong they are dependent upon the adults responsible for their care not to abuse that immaturity. Courts have a duty to mark by custodial punishment criminal abuse of that trust."

22 In support of the Crown contention that sentences significantly longer than those which have been imposed, should be substituted in this case, Ms Carlin who appeared on behalf of the Crown, submitted that, although his Honour in this passage indicated appreciation of the seriousness of the respondent's conduct, this was not reflected either in the individual sentences or the total effective sentence handed down by him.

23 Mr Carter, of counsel, who appeared on behalf of the respondent, submitted in answer to this contention that no attempt was being made on behalf of his client to gainsay the significance of what had occurred but rather to draw to the Court's attention the presence of a number of matters that were properly taken into account by the sentencing judge and militated in favour of mitigation of penalty. They can be seen, he argued, to have permitted his Honour, in the proper exercise of sentencing discretion, to arrive at a disposition to the general effect of that ordered, although Mr Carter accepted that the actual sentence involved a breach of s.27(2) of the Sentencing Act.

24 He submitted that it is apparent from his Honour's disposition that he had arrived at the view that whilst a sentence of imprisonment was required to reflect the seriousness of the respondent's behaviour, there were a number of factors present that justified the suspension of service of the major part of it. In this context he drew attention to an exchange that took place between the sentencing judge and the prosecutor just before his Honour retired to consider his decision, and I quote that passage:

"HIS HONOUR: Have you got instructions as far as sentence is concerned?

PROSECUTOR: Instructions are that an immediate custodial sentence is warranted, Your Honour. There's a breach of trust. There's offending over a three year period in relation to one victim. There are three victims.

HIS HONOUR: Have you got anything to say as to whether partial suspension is an appropriate course to adopt, having regard to the matters [counsel] has put?

PROSECUTOR: We say nothing about that. It's a matter for Your Honour."

25 Mr Carter argued that although it would seem obvious that the sentencing judge did not direct his mind to the limits imposed by s.27(2) upon the aggregate sentence in respect of which an order for suspension could be made, this inadvertence could not be automatically attributed to the prosecutor and his response to his Honour's inquiry indicates an acceptance of the possibility that a sentence, the service of part of which might be suspended, could be imposed. He certainly did not suggest to the judge that a sentence of that kind could not be handed down as a matter of sound discretionary judgment, nor did he give any indication that the prosecution contended that a total effective sentence of three years' imprisonment would be manifestly inadequate in the circumstances, the argument proceeded. Whilst Mr Carter conceded that the approach adopted by the prosecution at the time of the plea hearing was not determinative of the issues raised by this appeal, he argued and I would add, in accordance with accepted principle, that it should be attributed substantial significance.

26 The proper response of this Court in that situation, he submitted, should be to impose a sentence that would not operate more severely than that given by his Honour. This could be achieved, he suggested, by the reduction of the total effective sentence to three years' imprisonment through the adjustment of the orders for cumulation and concurrency, leaving the period of immediate incarceration at nine months as the sentencing judge directed.

27 Among the matters to which reference was made to support this position were:

(a) The concession made by the prosecutor, in the course of the plea hearing, that it was open to his Honour to impose a sentence involving the period of imprisonment, the service of part of which was suspended. Any such sentence could not exceed three years;

(b) The respondent's age - 69 years at time of sentencing;

(c) His plea of guilty which was entered at the earliest opportunity;

(d) The extent of the respondent's co-operation with investigating police;

(e) His Honour's acceptance of the existence of genuine remorse (There was evidence before the sentencing judge that the respondent had attempted to commit suicide after he was charged);

(f) The respondent's strong employment history;

(g) His relatively poor state of health which could render imprisonment more difficult for him (He had received treatment for cancer in 2002 and was required to wear a colostomy bag);

(h) The context of depression and loneliness within which the offending occurred; and

(i) The personal consequences to the respondent of his conduct. He had been rejected by the members of his extended family and had moved to a retirement village in Bateman's Bay in New South Wales. However, his situation there had become more difficult following the disclosure of his offending in a local newspaper article and it appeared highly likely that he would have to leave.

28 All of these matters possess significance in the determination of an appropriate sentence and all, save the last consideration, were before the sentencing judge. It was certainly appropriate for his Honour to take them into account. Although some challenges to his findings were made by Ms Carlin in the course of the hearing before us, there is no ground of specific error asserted and in any event, I have not been able to detect any error in the sentencing judge's approach with respect to any of them. For completeness, I would add that a further argument was advanced by Mr Carter with respect to the impact upon the respondent of the provisions of the Sexual Offenders Registration Act. This matter has received attention, to my knowledge on only one occasion when Callaway J.A., in the matter of R. v. Ellis[2], indicated that it would only be in exceptional circumstances that any significance could be given to that consideration. However, it was pointed out that there had been no full debate upon the matter and his Honour's views were expressed only tentatively.

29 I must say for my part, and again without hearing full argument on that particular aspect, I am inclined strongly to the view that Callaway J.A. was correct in his approach. In any event, and whether or not that is the correct situation at law, the particular circumstances of this matter would not justify the attributes of any significant weight to that consideration.

30 Giving full weight to all of the matters advanced in mitigation of penalty in this case, I consider that both the individual and total effective sentences imposed upon the respondent were manifestly inadequate in the circumstances.

31 As I pointed out, in relation to count 6, the respondent engaged in the systematic abuse of a child in relation to whom he possessed, not only what might be regarded as the normal level of responsibility of an adult person but who, by reason of her own family difficulties, was in a position of very special vulnerability. His level of culpability considered against that background can only be regarded as extremely high. Neither this consideration nor the number of separate acts, the number of victims or the length of time involved in the respondent's offending can, in my opinion, be seen to be reflected in the sentence imposed in this case.

32 However, as I have pointed out, this Court must act within the ambit and spirit of well entrenched principles. The exercise of the sentencing discretion is entrusted to the judge who deals with the matter at first instance. Consistent with the recognition of that role, this Court does not interfere with the dispositions directed by the judge in a given case unless the circumstances and the disposition are encompassed by the principles helpfully assembled by Charles J.A. in the passage set out earlier. Although there is an obvious increase in the number of Crown appeals coming before this Court, they must, as Winneke, P. has pointed out, still be approached as exceptional with appellate judges continuing to remain acutely conscious of their respective roles.

33 Every Crown appeal against sentence must also be considered against the background that the respondent is, also, exposed to a form of double jeopardy. In the present case, there is the further consideration to be taken into account in that, setting to one side the breach by his Honour of s.27(2) of the Sentencing Act, the Crown is effectively endeavouring to resile, not from the concession extracted in the course of a plea hearing or apparently uttered in inadvertence but the provision of an indication in response to a query by the judge that the prosecution did not contend that the imposition of a suspended sentence fell outside the range of sentencing options available in the circumstances.

34 Because his Honour did fall into error, it is necessary for this Court to intervene but the extent of that intervention must, as a matter of principle, be constrained by the considerations to which I have adverted and particularly the stance taken by the prosecution in the court below.

35 As I have made clear, I regard both the individual sentences and the total effective sentence imposed in this case as manifestly inadequate and were it not for the significance that I attribute to the last consideration I would have proposed substantial increases at both levels.

36 In the event, I have arrived at the view that the sentences and orders for cumulation and concurrency, made by the sentencing judge, should remain and that the proper course to adopt is to fix a period of eligibility for parole. I propose that the order for partial suspension be set aside and in lieu thereof a period of eighteen

months, before which the respondent will become eligible for parole, be substituted.

NETTLE, J.A.:

37 I agree.

OSBORN A.J.A.:

38 I also agree.

VINCENT J.A.:

39 The orders of the Court are:

1. The appeal is allowed.

2. The sentences and orders made in the court below are set aside.

3. The individual sentences and the total effective sentences are re-imposed, save for the order of suspension. In lieu thereof a period of eighteen months before which the respondent will not be eligible for parole is substituted.

The Court declares that the period of 131 days detention that the respondent has already undergone is to be reckoned as having been served under the sentence hereby imposed.

The Court otherwise confirms the following order and declaration made by Judge Howie in the County Court on 24 January 2005:

1. Order that it be entered into the records of the Court that in respect of counts 2, 3, 4 and 5 the prisoner was sentenced as a serious offender;

2. Declare that the prisoner is a registrable offender for the purposes of the Sex Offenders Registration Act 2004 (count 6 is a class 1 offence, and counts 1, 2, 3, 4 and 5 are class 2 offences);

3. Order that the prisoner undergo a forensic procedure for the taking of a scraping from the mouth pursuant to section 464ZF(2) of the Crimes Act 1958.

MR CARTER: Your Honour, I make application pursuant to s.15 of the Appeal Costs Act for indemnity certificate.

VINCENT, J.A.: Yes, that certificate is granted.

[1] [1996] VICSC 30; [1996] 2 V.R. 520 at 522 (citations omitted).

[2] [2005] VSCA 105