DPP v T D J; DPP v M S [2009] VSCA 317

Court of Appeal (Vic)|2009-12-23|Before: MAXWELL P, ASHLEY and NEAVE JJA

DPP v TDJ; DPP v MS (Unreported, County Court of Victoria, Judge Jenkins, 6 March 2009)

CRIMINAL LAW - Appeal - Sentence - Director's appeal - Production of child pornography - Incest - Principal victim was second respondent's daughter - Drug administered to enable first respondent to take pornographic photographs - Other victims very young girls - Sentences of 5 years 7 months (first respondent) and 1 year 8 months (second respondent) manifestly inadequate - Appeal allowed - Resentenced.

1 This is an appeal by the Director against sentences imposed on TDJ and MS for child sex offences. TDJ pleaded guilty to seven counts, involving four children (two of whom were daughters of MS). MS pleaded guilty to three counts, all involving her 13 year old daughter (R). They were sentenced as set out below:

Administer a drug for the purposes of sexual penetration

Procuring a child under 16 to take part in an indecent act

2 The Director has appealed both sentences, on the ground of manifest inadequacy. For reasons which follow, we would allow the appeal, set aside the sentences, and re-sentence the respondents as set out in Table B.

3 As was pointed out in R v MacNeil-Brown,[1] the submission on a Director's appeal that a sentence is 'manifestly inadequate' is a submission that the sentence imposed falls outside the range reasonably open to the sentencing judge in the exercise of the sentencing discretion in the circumstances of the case. In our experience, consideration of such a submission is facilitated when the Director identifies what the applicable range was. On several occasions this year the Court has noted the assistance which a submission by the Director on sentencing range has provided.[2]

4 In the present case, senior counsel for the Director provided - at the Court's request a submission identifying what the Director said was the sentencing range available to the sentencing judge in sentencing this offender for these offences. Once again we found that submission of considerable assistance.

5 As the Court made clear in R v MacNeil-Brown, it is a matter of the first importance that assistance of this kind should be afforded in the first instance to sentencing judges. It is entirely possible that, if the prosecutor had made a submission to the sentencing judge along the lines of the Director's submission in this Court, the present appeals could have been avoided.

6 In relation to TDJ, the Director's written submission stated that an overall sentence in the range ten to 12 years' imprisonment was called for on counts 3, 5, 6 and 7, with some cumulation required in respect of counts 1, 2 and 8 which involved three other victims. This submission was modified in oral argument on the appeal, with ten to 12 years being said to be the applicable range for the total effective sentence and a range of eight to ten years for counts 3, 5, 6 and 7. In relation to MS, the Director submitted that an overall sentence in the range five to six years' imprisonment was applicable. (The submission stated that the figures had not been adjusted to allow for the reduction which the Court would make, on account of double jeopardy, were the appeal to be allowed and the respondents be resentenced.

The offending against MS's daughter (counts 3-7)

7 The background facts are set out in the judgment of Ashley JA and we need not repeat them. Senior counsel for the Director submitted that, in order for the Court to understand the criminality involved in these offences, we should view for ourselves the video recording which TDJ made of the victim R being drugged by MS, and the photographs which TDJ took of her naked body while she was unconscious. We have done so, mindful of the need to ensure that the natural abhorrence of such offending should not divert us from the task of reviewing dispassionately the adequacy of the sentences imposed.

8 It is appropriate, first, to set out what the prosecutor told the sentencing judge about these images. In the conventional way the Crown's summary provided the factual basis for the sentencing. The summary dealt first with the offending on 21 December 2006, which founded counts 3-6.

9 R was the eldest of MS's four daughters. She was 13 at the time of these events. She was visiting her mother at the house where her mother and TDJ lived. She was no doubt seeking to re-establish a relationship with her mother after the break-up of her parents' marriage. According to the summary:

[MS] said she wanted to have a few drinks with [R]. [MS] gave [R] vodka and orange juice, [MS] mixed two sleeping tablets into one of the glasses of vodka and orange which she gave to [R]. As [MS] did this [TDJ] video recorded the event on his video camera. [MS] can be seen on the video recording ... to be laughing and smiling as she administered a glass of orange fluid to [R], obviously badly affected by the substances given to her. [MS] swills the glass around frequently and hold it up to ensure that the tablets have dissolved. As [R]'s head rolls backwards and forwards the mother hold her head and pours fluid into her mouth. [TDJ]'s voice can be heard giving instructions to [MS]. That, your Honour, is Count 3 on the presentment.

After [R] passed out from the alcohol and sleeping tablets [TDJ] carried her to the spare bedroom and laid her on the bed. There [MS] removed her clothes and that relates to Count 4. In the spare bedroom between 6.08 and 6.18 pm, using his mobile phone, [TDJ] took 13 photographs of [R] as she lay naked and unconscious on the bed. [MS] admitted that she knew that [TDJ] was going to take these photographs. That, your Honour, is Count 6. In the last three photographs, taken at 6.18 pm [TDJ]'s fingers can be seen manipulating [R]'s vagina with his fingers inside her labia majora, that's the penetration count, incest, Count 5.

The following day, when [R] woke about noon or 1 p.m. she couldn't remember what had happened the previous night. When she asked her mother and [TDJ] they told her that not much had happened, showed her part of the video that showed [MS] giving her a drink.

10 What is remarkable - and chilling - about the video is the apparently calm determination of the respondents to achieve their objective. Both MS and TDJ knew and intended that, once R had been rendered unconscious, her clothes would be removed and TDJ would be able to photograph her as he chose. The video runs for almost 15 minutes, throughout which time MS is seen to persist in making her increasingly insensible daughter drink the sleep-inducing mixture, despite her obvious reluctance to do so. As the prosecutor pointed out, MS can be seen laughing and smiling as she goes purposefully about her task. At the same time, it is apparent from the instruction which TDJ is heard to give her, and from the eye contact which she regularly makes with him, that this was a joint enterprise. Her plea to count 6 (producing child pornography) confirms this.

11 As is apparent from the 13 photographs which TDJ took on this first occasion, he wanted to be able to take explicit shots, including close-ups, of R's genitals. Moreover, as is shown by his plea to count 3, TDJ's purpose in having MS administer the sleeping tablets was to enable himself to penetrate R sexually. Plainly enough, R would never have given consent to any of this occurring. It was, in our view, quite appalling for two adults to overpower the will of a 13 year old girl in this way, so as to put themselves in a position to abuse her sexually. What makes it worse is that they exploited the daughter's natural trust in her mother to achieve this result.

12 In DPP v DDJ,[3] the Court was concerned with a sexually explicit video which the respondent had made of his 14 year old victim, who was conscious throughout. There, the degradation of the victim consisted in the various things which the offender directed her to do while he filmed. Here, the degradation consisted of the invasion of R's bodily privacy, and the display of her body in explicit poses, without her knowledge. Here, as in DDJ, a striking feature of the conduct is the way in which the respondents 'dehumanised [R], treating her as a mere object, to be subjugated to [TDJ's] sexual appetite in whatever ways he chose.'[4]

13 In our view, TDJ and MS were equally culpable for the conduct constituting count 6, that is, the taking of the pornographic photos on this occasion. This was a very serious instance of the offence, for the reasons we have given. The sentences imposed, of eight months for TDJ and four months for MS, were manifestly inadequate. On resentencing, TDJ will be sentenced to two years' imprisonment on this count, and MS to one and a half years' imprisonment. Each of these sentences has been reduced to take account of double jeopardy.

14 As to the count of incest to which TDJ pleaded guilty, TDJ's penetration of R was no less serious, in our view, by reason of the fact that it occurred while he was taking photos of her. All too often, this Court is constrained to emphasise the seriousness of this crime. The maximum penalty of 25 years is the highest in the criminal calendar, short of life imprisonment. As has been stated repeatedly, the fixing of such a high maximum reflects the community's abhorrence of sexual crimes against children.

15 In 1992, Crockett J said in relation to sentencing for sexual abuse of a child:

The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect to both specific and general deterrence.[5]

16 In 1993, Marks J in R v Sposito[6] said:

A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care is degenerate. The offence of incest is particularly erosive of human relations and casts doubts upon the assumption that parents are the natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.

17 Subsequently, in R v Wakime,[7] Winneke P referred to 'the tide of community anger and resentment towards crimes which involve the despoliation of children.'[8] Then in R v WEF[9] his Honour said:

This Court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.

In DPP v VH,[10] Callaway JA (with whom Buchanan and Eames JJA agreed) said that 'the sexual abuse of children by persons in a position of trust is intolerable.'

18 As with the taking of the photographs, so with the act of incest, the offence is no less serious by reason of the fact that the victim was unconscious. It is necessary, of course, to avoid double punishment, since the act of administering the drug for the purposes of sexual penetration is the subject of a separate count (count 3). But the penetration of a young girl who is powerless to resist is, by itself, an act of high moral culpability.

19 Having regard to the incest sentences tabulated by the Court in DDJ, we consider that TDJ should be sentenced to three years and six months' imprisonment on this count. On count 3, the sentence of 18 months should be increased to two years. The sentences have been reduced for double jeopardy.

20 There was no filming of the conduct constituting count 7. This was a representative count, covering three further occasions on which R was drugged and assaulted.[11] (There was no evidence of penetration on any of these occasions, and no evidence of photographs actually taken.) The summary stated:

Over the following months, [R] continued to visit her mother and [TDJ]. She states that on several occasions they gave her alcohol and tablets. On each occasion she can't remember what happened however, on two further occasions when she woke she states she was not wearing any pants or underpants. The first of these occasions was around the weekend after 21 December 2006.

[TDJ] purchased a four pack of pre-mix vodka Cruisers for [R]. She believes she drank all four as there were none left the next day. [MS] gave her two tablets again that night. [MS] admitted to police that she assisted [TDJ] to carry [R] to the spare room where [MS] removed [R]'s pants. [MS] says that she then left the house.

On the next occasion it happened, [R] was given Red Bears (that's said to be the vodka and the orange) to drink and a tablet. The following morning she awoke naked below the waist and noticed the bed was wet. [MS] admitted that there was a third occasion of administering alcohol and tablets to [R] to the point where she was unable to go to the toilet, and again she did this so [TDJ] could take nude photographs. [MS] said that she again left after undressing [R]. Some months later, perhaps before the Easter holidays, [R] said that the same thing again occurred. On this occasion [MS] gave [R] tablets in alcohol. When she woke, she was again naked below the waist, she cannot recall what occurred. Those events, your Honour, are taken up in Count 7 which is a representative count.

21 Once again, in our view, the respondents are to be viewed as equally culpable for the conduct covered by this count. What we have said previously about the joint nature of the enterprise applies equally to these subsequent occasions. The same modus operandi was adopted, for the same purpose. The fact that MS left the room, having removed her daughter's clothes for the purposes of TDJ's photography, makes all the more stark her abandonment of responsibility to her child. The risk of sexual interference by TDJ was palpable.

22 Here, as in DDJ, the feature of repetition is significant.[12] While R was not aware at the time that the conduct was being repeated, her subsequent discovery that she had been repeatedly abused doubtless contributed to her psychological suffering.[13] TDJ and MS, on the other hand, were fully aware each time of the effect of their conduct on R. Its repetition underlines, in our view, the sheer depravity of their treatment of R as a mere object, to be manipulated to their ends.

23 The sentences imposed on this representative count - one year for TDJ and ten months for MS - were manifestly inadequate. In resentencing, TDJ will be sentenced to three years' imprisonment and MS to two and a half years' imprisonment. These sentences have been reduced to take account of double jeopardy.

24 When police executed a search warrant at the home of TDJ and MS, they seized TDJ's mobile phone and camera. They found two photographs of young, unknown girls. Each photo was a close-up of the girl's genitals. As senior counsel for the Director pointed out on the appeal, each girl was clearly pre-pubescent. He further submitted that the first photograph could be seen to show the penis of an adult male juxtaposed with the genitals. As this characterisation was not put forward on the plea, and hence was not able to be disputed by the defence, it is not appropriate that it be taken into account on this appeal.

25 It is sufficient for present purposes that TDJ pleaded guilty to taking these photographs, one in September 2006 and the other in November 2006. By the time these photographs were discovered, TDJ had been in possession of them for approximately 15 months and 13 months respectively. He was not charged with possession of child pornography but his retention of the images confirms that he took the photographs for his own gratification.

26 The submission for the Director was that the sentence on each of these counts should have been at least two years' imprisonment. In our view, the sentences of eight months on each count were manifestly inadequate. Allowing for double jeopardy, we would resentence TDJ to 15 months on each of these counts.

27 The conduct giving rise to count 8 occurred approximately seven months after the offending involving R had come to an end. The victim was the second daughter of MS, aged eight at the time. She was staying with her mother and TDJ at their home. On this occasion, TDJ stood in front of the girl, took down his pants, exposed his penis to her and told her to look at it. She did not look at it and began to cry. Her mother was in the house at this time, but was busy.

28 The Director submitted that, in the circumstances of TDJ's offending conduct overall this offence had the characteristics of 'grooming'. Whether that is so or not, TDJ was once again abusing the trust which the girl undoubtedly placed in him as her mother's partner. In our view, the sentence of six months' imprisonment was very low but, having regard to double jeopardy and considerations of totality, we would not interfere with it.

29 TDJ had two prior convictions, for what the sentencing judge described as 'very serious and relevant offences'. Her Honour recounted those matters in these terms:

First, on 1 May 1973 you were convicted in the County Court of buggery and sentenced to 3 years imprisonment with a minimum of 12 months. This offence involved the sexual penetration of your niece who was aged four years seven months. At the time you were living with your sister, her husband and their young daughter. In your second record of interview you eventually admitted to having persuaded the child to come with you to your bedroom where you put her to bed and later played with her vagina before penetrating her anus. When her mother came looking for her she heard her daughter crying in your bedroom, which you had locked. You eventually opened the door and abused your sister. In your record of interview you could offer no explanation. I note that your Counsel was instructed that you blame alcohol and your loneliness for your offending. However, the depositional material provided to the court, including your two records of interview, makes no mention of alcohol having been consumed at the relevant time.

Secondly on 12 August 1991 you were convicted in the County Court of rape with aggravating circumstances, detention for purpose of sexual penetration and indecent assault with aggravating circumstances, for which you were sentenced to a total effective sentence of six years and six months imprisonment with a minimum of 4 years. This offence was committed against the mother of your two young children, who became your second wife before your identity as the offender was discovered. You entered your own home late at night via a window wearing a disguise over your head. You tied up your partner, who had been asleep in bed, and while bearing a knife, raped her ostensibly because you were jealous of her association with another man. This offence was committed in June 1989 and you did not admit your involvement in this crime until interviewed by police in March 1991.

30 As the judge correctly observed, these prior convictions had the consequence that TDJ stood to be sentenced as a serious sexual offender (under Part 2A of the Sentencing Act 1991 (Vic)), in relation to all of the counts to which he had pleaded guilty. This meant, as her Honour noted, that she was required in determining the length of the sentence to 'regard the protection of the community from [TDJ] as the principal purpose for which the sentence [was] imposed.'

31 Compliance with this obligation requires the Court to assess the risk to the community which the offender represents. On the basis of the material before the Court, the sentencing judge concluded that TDJ represented a 'significant risk of reoffending in the same way in similar circumstances.' Further, in giving reasons for ordering pursuant to s 464ZF that TDJ provide a forensic sample, her Honour said:

The circumstances of these offences ... are extremely serious. You [TDJ] also have an extensive history of prior offending including serious sexual offending and otherwise I regard you at significant risk of reoffending.

32 With respect, these conclusions were clearly open on the material. The contrary was not suggested in argument on the appeal. Protection of the community was, therefore, a very significant factor to be considered. Our conclusion that the sentences imposed by the judge on TDJ were manifestly inadequate is in part informed by our view that they were not adequate to protect the community against the risk which TDJ represented.

Your risk of reoffending is more difficult to assess. However, it is apparent that within a very short period of time, namely a matter of months, your capacity to protect your own children was completely displaced by your misguided loyalty to your new partner. In the circumstances, I must regard you at some risk of reoffending in a similar manner in future.

Again, this conclusion was clearly open, and was not challenged in the appeal. While community protection was not as significant an issue in relation to MS as in relation to TDJ, it still required appropriate weight.

34 The sentencing judge had before her a victim impact statement by R which, her Honour said conveyed 'the ongoing psychological trauma caused by [the] offending conduct.' Her Honour went on:

One sentence in particular encapsulates her deep distress: I feel angry, upset, disgusted, confused, sad, feel like I've lost my childhood and I lost my mum... [R] goes on to describe the continuing difficulty she now experiences trusting people generally and older men in particular. You [TDJ] ingratiated yourself to [R] and her sisters and would then manipulate her mother, displaying anger and threatening to leave her, if she would not assist in administering the alcohol and tablets to her. [R] is also scared about what you did to her and frightened that she might find out and that compromising photos might appear on the Internet in future. Although there is no evidence that you have in fact posted her images on the Internet, the fear and apprehension expressed by [R] is entirely understandable in the circumstances. [R] also expressed the deep loss and betrayal which she feels for herself and her sisters by reason of the behaviour of her mother in initially choosing to leave the family and live with [TDJ] and then effectively preferring her relationship with [TDJ] over the protection of her children. [R] commenced counselling in December 2007 which she has been attending regularly and feels that she will continue to need counselling and support in the future.

35 As this Court has said repeatedly, the effect on the victim is a significant sentencing consideration in cases such as this.[14] The estrangement of R from her mother is a particularly tragic consequence of this offending.

36 The first mitigating factor considered by the judge was the pleas of guilty. Her Honour noted that TDJ had denied all allegations put to him in his record of interview, and otherwise had indicated no intention to cooperate until the second day after the matter had been set down for trial, when he 'finally agreed to plead guilty'. The judge found that MS had made 'limited admissions in her record of interview' but had otherwise attempted to minimise her offending conduct. Her plea had come at the same late stage as her co-offender's. The judge found, however, that MS had provided information about TDJ and had produced photos and emails which might not have come to light as readily.

37 Her Honour accepted that the pleas of guilty had

spared your two victims the inevitable anxiety and distress occasioned by giving evidence and you have also saved the court the expense of conducting a contested trial in the circumstances, by reason of your very late change of heart and the fact that your victims have had this matter hanging over their heads, fully expecting to have to give evidence at a special hearing, you will each be afforded a limited discount for your pleas, with a slightly greater discount being warranted in your case [MS].

38 As to matters personal to TDJ, her Honour noted a submission that he had experienced significant neglect during his childhood 'with minimal parental or adult influence or positive guidance' during his formative teenage years. Her Honour was not satisfied, however, that the court had been provided with

any reliable evidence as to the circumstances of your residency, schooling or other adult influences after you were allegedly ejected from home at aged 10. I note that you subsequently resided for extended periods with each of your two older sisters. However I also note the assessment of Mr Healey which cites sociopathic tendencies which may indeed have been exacerbated by a degree of parental neglect.

39 It was further submitted on TDJ's behalf that he had managed to overcome a severe alcohol problem in the past and had generally maintained employment since, albeit in seasonal and labouring jobs.

40 The judge noted that MS had no prior convictions and had otherwise been of good character. Rightly, her Honour took these circumstances into account in her favour.

41 Her Honour noted a submission by her counsel that she had a physical disability by reason of an 'unresolved ankle problem' which, it was said, might cause her greater burden undergoing immediate imprisonment. The judge recorded that her counsel, when questioned by the Court, had been unable to provide any further information. No medical or other evidence was forthcoming relating to any physical disability or its consequences. Quite rightly, her Honour gave no weight to this submission.

42 Thirdly, it was submitted on the plea that MS had performed a limited role and was otherwise under the direction of TDJ. It was submitted that MS had derived no benefit, or sexual gratification, from the offending and had not seen her children since she was interviewed by police. It was submitted that she had very good prospects for rehabilitation.

43 Unsurprisingly, the judge was not much impressed with this submission. Her Honour said:

As indicated during the plea your behaviour is consistent with someone who has procured their own children to be available, knowing the very high risk and indeed likelihood of serious sexual offending against them. You could have chosen to see your children at their home. You could have ensured that your children were never left alone with the co-accused. You could have desisted from participating in any way with the administering of alcohol and sleeping tablets. You chose to do none of these things and even worse you walked away, apparently reckless to the fate of your daughter, [R]. Your behaviour has only been explained in terms of your desire to maintain a relationship with the co-accused and otherwise represents the most appalling and inexplicable maternal neglect and abuse.

Your offending must also be seen in the total context in which your relationship with the co-accused developed. Within a relatively short time of making contact via the Internet, you met and within a weekend decided to cohabit with your co-accused. You did not see your children at all for about two to three months and then only irregularly at weekends, one or two children at a time. In my view your prospects for rehabilitation remain guarded at best.

44 In our view, the sentences imposed in this case were so manifestly inadequate as to reflect error of principle. Significantly higher sentences were called for, to reflect the objective gravity of the offending and to meet the need for general and (in the case of TDJ) specific deterrence, and for community protection, and to express the Court's denunciation of the conduct.

Administer a drug for the purposes of sexual penetration

Procuring a child under 16 to take part in an indecent act

But for the pleas of guilty, the respondents would have been sentenced as follows:

46 On 6 March 2009 a County Court judge sentenced TDJ, who had pleaded guilty to seven sexual offences against four children, to a total effective sentence of five years and seven months' imprisonment with a non-parole period of four years and six months'.

47 On the same day the judge sentenced MS, who had pleaded guilty to three sexual offences committed against one child, to a total effective sentence of one year and eight months' imprisonment, with a non-parole period of 12 months.

48 Now the Director of Public Prosecutions appeals, on the ground in each case that the individual sentences, the total effective sentences and non-parole periods were manifestly inadequate.

49 It was rightly accepted by counsel for the Director in this Court that the learned judge, in comprehensive sentencing remarks, had addressed all relevant sentencing considerations in a full and logical way. He submitted simply that the figures upon which her Honour had settled were egregiously low. He affirmed, I

add, that no contention was raised that 'sentencing practices' provided too low a 'range' in respect of the relevant offences.

The offenders and ss 6D and 6E of the Sentencing Act 1991.

50 TDJ is a man now aged 60. At the time of offending he was aged between 57 and 58.

51 MS is a woman now aged 40. She was aged between 37 and 38 years at the time of offending.

52 TDJ is a man with past convictions for sexual offences - buggery in May 1973 and rape with aggravating circumstances (and related offences) in 1991. For each of his past sexual offences he was sentenced to imprisonment.[15] By reason of those convictions he was sentenced in March 2009 as a serious sexual offender on all seven counts. This meant that the judge had to apply s 6D(a) of the Sentencing Act 1991 (Vic), consider whether s 6D(d) should be applied, and consider whether to otherwise direct under s 6E.

53 No argument was raised that a disproportionate sentence should be imposed on the plea. The judge decided that the purpose of s 6D(a) could be achieved without applying s 6D(b). It was not contended in this Court that her Honour had erred in so concluding, and I am satisfied that she did not err.

54 As for s 6E, the judge decided that it was appropriate to otherwise direct in order to avoid the crushing sentence which would otherwise have ensued. Again, it was not contended in this Court that her Honour's analysis was flawed and I respectfully agree with it.

55 MS is a woman without prior convictions. She fell to be sentenced as a serious sexual offender only on the third count on the instant presentment. Again, the judge concluded that s 6D(b) need not be invoked, and that she should otherwise direct under s 6E. No complaint was made in this Court about those conclusions. I respectfully consider that they were correct.

56 In September 2005 TDJ was living in Swan Hill and MS was living with her de facto partner and 4 daughters in Merbein. Her oldest daughter, R, born 25 March 1993, had her mother's surname, and was evidently a child of some other relationship. The oldest of her three other daughters was A, born 9 August 1999.

57 TDJ and MS met via an internet dating site in late September 2005. Within a few days MS moved to Swan Hill to live with TDJ. Initially MS left her four daughters with her erstwhile de facto partner. Contact between mother and daughters resumed in about November 2005, with periodic visits.

58 TDJ and MS moved to Mildura in late December 2005. The children began to visit regularly, staying overnight.

59 In April 2006 TDJ and MS moved into another premises in Mildura. The children continued to visit, and stay overnight.

60 TDJ and MS moved into a premises at Red Cliffs in September 2007. The children continued to visit, and stay overnight.

61 The offences comprehended by counts 1 and 2 on the presentment were committed by TDJ alone, on or about 9 September 2006 and 3 November 2006. Each was a count of making or producing child pornography.[16] Each offence was constituted by the making of a single photograph of the genitalia of a pre-pubescent girl. The images were found on TDJ's mobile phone when police seized it on 4 December 2007. It appears to have been undisputed on the plea that two different girls were involved. Neither of the girls, it seems, was a daughter of MS.

62 Counts 3 to 6 on the presentment were committed on 21 December 2006. In short, MS induced her oldest daughter, R, to drink a mixture of alcohol and sleeping tablets. This caused the child to pass out. MS acted as she did at the instigation of TDJ. She knew that TDJ wanted to take photographs of her daughter whilst naked. She did not know that TDJ intended to sexually penetrate her daughter. Count 3, alleged against TDJ only, was that he administered the alcohol and tablets to R with the intention of render her incapable of resisting, this enabling him to take part in an act of sexual penetration with R.[17]

63 After the child had passed out, MS carried her to a bedroom and undressed her. This was the subject-matter of count 4 - a charge that MS (but not TDJ) committed an indecent act with R.[18]

64 MS then left her daughter with TDJ. He took 13 photographs, mainly of her genitalia. This was the subject-matter of count 6, a charge of making or producing child pornography which was brought against both TDJ and MS.

65 In the course of taking the photographs, TDJ used his fingers to part the outer lips of the child's vagina. This conduct constituted count 5, a charge of incest.[19] Disgraceful as this conduct was, it is the fact that the act of incest was essentially ancillary to the making of the pornographic photographs, rather than an end in itself.

66 The course of conduct which consisted of rendering the child insensible, undressing her, and leaving her with TDJ so that he could observe her naked, was repeated on three[20] occasions between 29 December 2006 and 8 January 2007. There was no evidence that TDJ photographed the child on those occasions. Count 7 was a representative count which alleged that both TDJ and MS solicited or procured the child to take part in an indecent act outside marriage with MDJ.[21]

67 The eighth count on the presentment involved TDJ alone. In about August 2007 he exposed himself to A, the then 8 year old daughter of MS. He pleaded guilty to a count of indecent act with a child aged under 16.

68 Before detailing the sentencing orders which the learned judge made, it is important to recognize the difficult task which her Honour faced. Speaking generally, the conduct which constituted the offences was repugnant. In different ways, what TDJ and MS did called for denunciation, and for stern punishment. But the offences with which the offenders were charged were not identical. Moreover, there were differences in the roles played by the two offenders, and differences in their ages and antecedents. Again, the offences comprehended by counts 3-6 involved a single incident; and care had to be taken to ensure that the individual sentences imposed on those counts, together with cumulation, did not produce a punishment for the offending conduct which was disproportionate. I must later return to these matters.

69 The sentences which the judge imposed were as follows:

70 In the case of TDJ, the judge took the sentence on count 5 as the base sentence. She cumulated all of the sentence on count 1, four months of the sentence on count 2, 15 months of the sentence on count 3, four months of the sentence on count 6, eight months of the sentence on count 7 and four months of the sentence on each other and on the sentence on count 5. Hence the total effective sentence of five years and seven months' imprisonment.

71 The non-parole period of four years and six months which her Honour fixed was quite high. It reflected her concern about the respondent's prospect of rehabilitation, and thus the risk of him re-offending.

72 In the case of MS, the judge took the sentence on count 7 as the base sentence. She cumulated six months of the sentence on count 4 and all of the sentence on count 6 on each other and on the sentence on count 7. Hence the total effective sentence of 20 months' imprisonment.

73 The non-parole period which her Honour fixed reflected the respondent's prospect of rehabilitation, which fell to be considered not only by reference to her offending conduct between 21 December 2006 and 8 January 2007, but also her otherwise blameless life and the way in which, as the judge seemed to accept, she had been manipulated by TDJ.

74 Counsel for the Director submitted that the learned judge had not fixed a sufficient sentence on the individual counts. Had she taken a correct starting point, by fixing individual sentences which were appropriate, and had she then cumulated so as to produce a total effective sentence which reflected the fact that TDJ was being sentenced on all counts as a serious sexual offender, the total effective sentence must have been much greater than that at which her Honour arrived. But instead, counsel submitted, it seemed that her Honour had taken a total effective sentence and then worked backwards via 'unusual' orders for cumulation to arrive at inadequate individual sentences. According to counsel, it would have been appropriate to sentence TDJ, on counts 3-7, to eight to ten years' imprisonment. It would next have been appropriate to sentence him to two years' imprisonment on each of counts 1 and 2. Then, two to three years of the sentences on counts 1, 2 and (as I understand it) 8, should have been cumulated on the sentence on counts 3-7. In the result, TDJ ought to have been sentenced to a total effective sentence of some ten to 13 years' imprisonment.

75 Counsel for TDJ accepted that the sentences which the judge imposed on counts 6 and 7 'seemed to be low'; that they were 'at the lower end of the range'. But he argued that the relatively large measure of cumulation which the judge ordered had yielded a total effective sentence which was not egregiously low. He further submitted that, whilst the offence constituted by count 5 was aggravated by the circumstances of counts 3 and 6, the Crown had approached the matter by laying separate charges. When one looked at the overall sentence imposed on counts 3, 5 and 6, it was three years and seven months' imprisonment, which was not manifestly inadequate.

76 Counsel essayed an alternative sentencing exercise, in which he allowed for heavier individual sentences on counts 5 and 7, but more modest cumulation in respect of counts 1, 3 and 8. By this exercise he arrived at a total effective sentence of five years and nine months' imprisonment. He argued that a non-parole period of four years and six months sufficiently allowed for TDJ's past criminality, his poor prospect of rehabilitation, and thus the risk of him re-offending.

77 As I have already pointed out, in sentencing TDJ regard had to be had to sentencing MS. There was a parity issue, although the offences charged, the role of the offenders, and the ages and antecedents of the offenders meant that the end of the sentencing process would produce dissimilar results.

78 In the event, the competing submissions concerning MS should next be set out.

79 Counsel for the Director submitted that the conduct of MS fell into the worst category for offences of this kind. In gross breach of trust, the mother had drugged her 13 year old daughter at the instigation of TDJ and had removed the child's clothing so that he could observe, and photograph, her. This misconduct had occurred four times. Despite matters running in the respondent's favour, and despite the double jeopardy consideration on a Director's appeal, a total effective sentence of five to six years was called for. Counsel characterised the respondent's conduct as 'calculated, pre-planned, predatory and exploitative.'

80 Counsel for MS, submitting that the sentence was not manifestly inadequate, relied upon:

1 His client's age (she was much younger than TDJ).

3 The more limited offences to which MS pleaded guilty.

4 The more limited period of his client's offending (that is, encompassing the period 21 December 2006 to 8 January 2007, whereas the offences committed by TDJ spanned the period September 2006 to August 2007).

5 The circumstance, as counsel contended was the case, that MS had been manipulated by TDJ into committing the offences.

6 His client's plea of guilty and (by contrast with TDJ) her co-operation with the police from the outset.

7 The fact that, by contrast with TDJ, there had been a single victim of his client's offending.

81 In response to questions asked by the Court, counsel accepted that his client had provided no adequate explanation for abandoning R to TDJ. The concession was appropriate. MS seems to have offered only two explanations for her misconduct. Thus -

1 On 29 May 2006 a vehicle owned by TDJ, but driven by her, had been driven so as to infringe road traffic laws. An infringement notice had issued, specifying a fine and imposition of demerit points. MS was worried that she would lose her licence. In those circumstances she had agreed to allow TDJ to take nude photographs of R in return for TDJ accepting the demerit points.

2 She had agreed to TDJ's request in order, as she put it, 'just to shut him up.'

82 Whether or not one or other or both circumstances explain why MS acted as she did, her conduct put her own relatively unimportant interests before the protection of her child. Even accepting TDJ's manipulation, her conduct was deplorable.

83 For the following reasons I do not accept the Director's submission that, even allowing for the double jeopardy consideration, the appropriate total effective sentence in the case of TDJ was ten to 13 years' imprisonment.

84 First, TDJ was not initially co-operative with the police. There was a contested committal. He only agreed to plead guilty to the presently pertinent offences on the second day after the matter was set down for trial. Even so, he did plead guilty, and the judge gave the plea limited mitigatory weight. She stated that if TDJ had not pleaded guilty she would have imposed a total effective sentence of six years and six months' imprisonment. So she reduced the sentence by about 14 per cent. Whatever legitimate objections there are to the concept set out in s 6AAA of the Sentencing Act and whatever the difficulties in the application of the section - matters which Kaye J highlighted in his incisive ruling in R v Flaherty (No 2)[22] - the fact remains that, doing her best, the judge put a figure on the discount; and it was not argued in this Court that the extent of the discount was inappropriate.

85 Against that background, if one was to take the range of ten to 13 years' imprisonment propounded by counsel for the Director, and then gross it up to show the comparable sentence if TDJ had gone to trial and been found guilty, one arrives at a range of about 11years eight months to 15 years one month's imprisonment.

86 Then, second, one must allow for the double jeopardy consideration. On any view, in a sentence of the magnitude propounded for the Director, one would have to allow a minimum of something more than a year.

87 In the event, the Director was contending that the offences committed by TDJ should have attracted, had he gone to trial and been convicted, a total effective sentence of something in the order of 12 years and eight months to 16 years and one month's imprisonment. For the reasons which follow, in which I give full account of all the features adverse to TDJ, a total effective sentence of those dimensions would not be justifiable, in my opinion, on conventional sentencing principles.

88 First, it must be recognised that the offences particularly those comprehended by counts 1, 2, 3, 5, 6 and 7, were grave.

89 Second, there was some planning of the conduct the subject of counts 3, 5, 6 and 7. So much must be inferred from TDJ's pleas of guilty.

90 Third, making child pornography - see counts 1, 2 and 6 - involves, to greater or lesser extent, the sexual exploitation of children. But here, there was no evidence that TDJ made the pornographic photographs for distribution to others. All that can be said is that they were made for his own gratification. Bad and all as that was, there was no evidence that the respondent's offending had a tendency - that is, in consequence of distribution of the photographs to others - to stimulate others to commit pederastic acts.

91 Fourth, the seriousness of the offences comprising counts 3, 5, 6 and 7 was the worse because the offences were committed upon the child of TDJ's partner. In my opinion, 'breach of trust' is an overworked concept. But it surely described TDJ's conduct.

92 Fifth, the seriousness of the offences comprising counts 3, 5, 6 and 7 was also the worse because it involved the administration of alcohol and drugs to the child in order to render her insensible, and so facilitate the acts which followed.

93 Sixth, counts 1 and 2 involved the making of single photographs. Disgusting as the images were, I could not accept that the offences should be equated, in terms of seriousness, with the making of multiple images, which is often enough the content of the particular offence.

94 Finally with respect to the offences themselves, I consider that the conduct comprehended by count 8 was, though objectionable, not high on the scale of seriousness. Essentially TDJ acted as a 'flasher'.

95 The circumstances of the offences which I have mentioned show that just punishment, denunciation, protection of the community and general and specific deterrence were important sentencing considerations. But determination of the appropriate sentences required consideration of all the circumstances of the offences and the offender. Other matters needed to be brought to account. Thus:

(1) TDJ was aged 60 when sentenced, his health was only fair, and his IQ was only at the upper end of the borderline range.

(2) TDJ had committed many offences in the past, including several serious sexual offences. But even the most recent of the sexual offences had been committed quite a long time ago.

(3) The counts to which TDJ pleaded guilty revealed a continuing propensity to sexual offending, and in this instance at least it was for purposes of sexual gratification. On the other hand, the judge concluded that the presumption in favour of cumulation need not be applied, and that conclusion was unchallenged in this Court. In the event, although a measure of cumulation was called for, account did have to be taken of totality and also of the fact that counts 3, 5 and 6 were in substance aspects of a single episode of criminal behaviour.

(4) There was the plea of guilty, late though it was made.

(5) The judge found that she could not assess whether TDJ had 'any prospects for lasting rehabilitation'. She also concluded that he was at risk of similar re-offending. Both those conclusions were unimpeachable. They were relevant both to the head sentence and non-parole period. Prospect of rehabilitation also particularly bore upon the setting of a non-parole period.

96 In all the circumstances which I have described, I consider that individual sentences of 18 months' imprisonment on each of counts 1 and 2, 24 months on count 3, 36 months on count 5, 20 months on count 6, 24 months on count 7 and six months on count 8, would have been within the sound exercise of the sentencing discretion. I consider further that if the judge had then cumulated nine months of each of the sentences on counts 1 and 2, 12 months of the sentence on count 3, 12 months of the sentence on count 6, 12 months of the sentence on count 7 and three months of the sentence on count 8 on each other and on the sentence imposed on count 5, no complaint could have been made. That would have resulted in a total effective sentence of seven years and nine months' imprisonment. Finally, if the judge had set a non-parole period of, say, six years' imprisonment, I consider that it would have been within the sound exercise of the sentencing discretion.

97 This should be made clear. In expressing my opinion what sentence might have been imposed on TDJ within the permissible exercise of the sentencing discretion, I have taken into account each of the considerations which I have outlined, including the fact of his plea of guilty, and the discount of 14 per cent which the judge built into her sentence on that account.

98 To say that different individual sentences with different cumulation would have produced a total effective sentence which was greater than that which the judge imposed, and yet that such sentences would have been within the limits of the sentencing discretion, is not to say that any of the sentences which her Honour imposed, and in particular the total effective sentence and the non-parole period, was manifestly inadequate. That is so for three reasons. First, manifest inadequacy is not to be measured by comparison with a considerably greater sentences which, had they been imposed, could not have been successfully appealed by the offender. Second, as the law presently stands, this Court must allow for the double jeopardy consideration. Third, there remains a residual discretion on a Director's appeal whether to interfere with a sentence.

99 In my opinion, so viewed, none of the sentences imposed on TDJ, but most particularly the total effective sentence and the non-parole period, has been shown to be manifestly inadequate. The sentencing exercise might have been differently constructed, so as to enlarge the individual sentences and provide for a lesser relative extent of cumulation. But I would not interfere on that account. The circumstance that the individual sentences which the judge imposed - and arguably the total effective sentence and non-parole period - might be accounted lenient is not a reason for interference. As has repeatedly been emphasised, this Court does not have the function of placing itself in the position of the sentencing judge.

100 I turn to consider the appeal against sentence imposed on MS.

101 In my opinion, the characterisation of her conduct by counsel for the Director[23] was accurate. Further, as I concluded at [81], MS gave no adequate explanation for what she did.

102 On the other hand, I consider that each of seven matters relied upon for MS, noted at [80], did provide a basis of substance for drawing a distinction between the circumstances of the offenders and the offences which they respectively committed.

103 As in the case of TDJ, I do not regard the range of total effective sentences propounded by counsel for the Director as being appropriate. He argued that, allowing for the double jeopardy consideration, the appropriate range was five to six years' imprisonment. MS co-operated with the police, and she pleaded guilty. The judge stated that if MS had not pleaded guilty, she would have imposed a total effective sentence of two years and six months' imprisonment. So she discounted the sentence by a third. No criticism was made of that conclusion in this Court; and I consider that it was unexceptionable. It follows that the Director was contending that if MS had stood her trial and been convicted, the sentence should have been something more than the range seven years and six months to nine years' imprisonment. I say 'something more' because that range would allow nothing for the double jeopardy consideration. At very least, it would suggest a bottom of the range figure exceeding eight years' imprisonment. I cannot accept that this offending, disgraceful as it was, could have attracted anything like that period of imprisonment when regard was had to the mitigatory factors running in favour of MS.

104 I consider that in all the circumstances of the case, which include the parity issue, it would have been open to the judge to impose a sentence of ten months' imprisonment on count 4, 17 months' imprisonment on count 6 and 20 months' imprisonment on count 7, without those sentences being manifestly excessive. It would then have been open to the judge to cumulate five months of the sentence on count 4 and eight months of the sentence on count 6 on each other and on the sentence on count 7, this producing a total effective sentence of 33 months' imprisonment, again without the outcome being manifestly excessive. A non-parole period of, say 15 months might then have been fixed.

105 But as in the case of TDJ, having regard to the considerations which I mentioned at [98], I cannot conclude that the sentence passed, most particularly the total effective sentence and the non-parole period, reveals manifest inadequacy.

106 I wish to add one matter. First, at least in some cases in this Court, and probably most, counsel's bald assertions to what the appropriate sentencing range was, or should now be, for particular offences, is likely to add to the work of the Court without obvious benefit. The present case is in my opinion an example. Unless the Director's submissions upon the matter were to be simply ignored, they required an analysis which was both artificial - by adding back for the pleas of guilty and by making an allowance for double jeopardy - and ultimately unhelpful. The analysis did not become helpful only because it showed, as I have concluded, that the sentencing ranges propounded were far too high. It still remained to consider whether the Director had made out his argument that the sentences imposed were manifestly inadequate.

107 It is one thing to hold that a prosecutor may respond to a request by a sentencing judge to specify an appropriate range of sentences; or even volunteer a submission in the absence of a request in particular circumstances.[24] It is a second thing to say that sentencing statistics may be of some limited use on a sentencing appeal. This Court has accepted that they have some utility in giving guidance as to 'current sentencing practices'. But it is, in my view, another thing again to invite or permit counsel to submit in this Court what the appropriate range of sentences was, or should now be, in the circumstances of the particular case. The function of this Court on a sentencing appeal is not to act simply as if it was passing sentence at first instance. Whether under s 567(d) or s 567A(1) of the Crimes Act 1958 (Vic), its function is to consider whether a different sentence should have been passed. Only if so satisfied is it authorised to pass some other sentence. In considering whether a different sentence should have been passed, it must address the arguments advanced by counsel and must explain its conclusions. I do not regard a submission by counsel about the appropriate sentencing range in the particular circumstances of the case as likely to be useful in this appellate context; and, as I said above, it is likely to result in a time-consuming, artificial, and as likely as not unhelpful exercise.

109 I have had the opportunity, very recently, of reading in draft the joint reasons for judgment of Maxwell P and Neave JA. I wish to make these additional observations.

110 First, their Honours refer, on several occasions, to this Court's decision in DPP v DDJ.[25] They find a degree of analogy between some of the circumstances of that matter and the circumstances of the present matters.[26] But it is a striking fact that counsel for the Director did not volunteer any submission in reliance upon DDJ - whether by way of supplementary written submissions or oral argument. Indeed, the only mention made of the case was by counsel for MS, who in written submissions cited it only to distinguish the circumstances of the present case. The description, at [12] of the reasons for judgment in DDJ, of the child pornography which was there produced, and the cases discussed at [74]-[80], show, in my opinion, that the submission had force.

111 Second, their Honours appear to treat R v MacNeil-Brown[27] as extending, de facto, to submissions made by the Director with respect to inadequacy of sentence. That this may happen is implicit in the reasons in DDJ at [42]. But it was not decided in MacNeil-Brown, and it was not the subject of argument in DDJ. For reasons which I have set out above, there is in my opinion good reason why what was decided in MacNeil-Brown should not be so extended. Moreover, in the present instance, the submissions for the Director which touched the point were, in my view, not much better than useless. In TDJ's case, counsel for the Director abandoned a submission as to sentencing range contained in the outline of argument, and advanced quite different figures. The written outline had been prepared by other counsel. So it can be seen that even the minds of experienced prosecutors differ about 'sentencing range'.

112 Third, a number of the individual sentences which their Honours would impose upon TDJ and MS, in the very particular context of a Director's appeal, considerably exceed the individual sentences which I have concluded could permissibly have been imposed upon them at first instance. That their Honours and I could so far depart in our assessment of the circumstances has caused me to reflect upon the opinions which I earlier expressed. But, having done so, I remain of the same mind.

[1] [2008] VSCA 190; (2008) 20 VR 677 (Maxwell P, Vincent and Redlich JJA).

[2] DPP v DDJ [2009] VSCA 115, [42] (Maxwell P, Vincent and Neave JJA); DPP v El Hajje [2009] VSCA 160, [29] (Maxwell P, Vincent JA and Coghlan AJA); DPP v Patterson [2009] VSCA 222, [15] (Maxwell P, Redlich JA and Vickery AJA); DPP v Moses [2009] VSCA 274, [23] (Maxwell P, Redlich JA and Vickery AJA).

[3] [2009] VSCA 115 ('DDJ').

[5] R v Wayland (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 4.

[6] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 5. See R v Ware [1997] 1 VR 647, 653 (Hedigan AJA).

[8] See also R v RTG [2004] VSCA 89, [20] (Chernov JA).

[10] [2004] VSCA 180; [2004] 10 VR 234, 237-8. See also DPP v DAK [2004] VSCA 175 [33]-[35] (Vincent JA).

[11] See, DPP v McMaster [2008] VSCA 102; [2008] 19 VR 191, 202 (Ashley JA); R v CJK [2009] VSCA 58, [40] (Warren CJ).

[14] DPP v CPD [2009] VSCA 114, [18] citing DPP v DJK [2003] VSCA 109.

[15] Three years in 1997, six years and six months in 1991.

[16] Contrary to s 68(1) Crimes Act 1958 (Vic), maximum penalty 10 years' imprisonment.

[17] Contrary to s 53(1) Crimes Act 1958 (Vic), maximum penalty 10 years' imprisonment.

[18] Contrary to s 47(1) Crimes Act 1958 (Vic), maximum penalty 10 years imprisonment.

[19] Contrary to s 44(2) Crimes Act 1958 (Vic), maximum penalty 25 years imprisonment.

[20] This was the basis upon which the judge imposed sentence, although the Crown opening was somewhat ambiguous, and perhaps implied that there were only two instances. No complaint was made in this court that the judge had erred in the factual basis upon which she sentenced the offenders on count 7.

[21] Contrary to s 58(1) Crimes Act 1958 (Vic), maximum penalty 10 years.

[24] R v MacNeil-Brown & R v Piggott [2008] VSCA 190; (2008) 20 VR 677. According to the majority judgment, in so acting the prosecutor would be assisting the court to avoid appellable error.

At a glance

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Judgment (171 paragraphs)

Cases Cited (1)