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[2018] VSCA 38
Court of Appeal (Vic)
2018-02-27
Mr J, Tate JA, Kyrou JA
Original judgment source is linked above.
DPP v Tewksbury (a pseudonym) [2016] VCC 1918 (Judge Gaynor)
CRIMINAL LAW - Appeal - Sentence - Crown appeal - One charge of producing child pornography, four charges of indecent act with child under 16, two charges of incest, one charge of possessing child pornography - Offences against respondent's stepdaughter over 2.5 year period when she was aged 12-14 - Sentenced to 4 years' imprisonment, with non-parole period of 2 years, 10 months - Whether manifestly inadequate - Incest offences involved persistence in face of protests and obvious distress on part of victim - Respondent recorded videos of incest offending and one indecent act - One video placed in shared Dropbox file to which at least one other person had access - Appeal allowed - Resentenced to 9 years, 7 months' imprisonment, with non-parole period of 7 years - , ; , , referred to.
1 On 18 November 2016, the respondent pleaded guilty to the charges set out in the following table and, on 9 December 2016, he was sentenced as set out in that table.[2]
Produce child pornography [Crimes Act 1958 s 68(1)]
Indecent act with a child under 16 [Crimes Act 1958 s 47(1)]
Incest [Crimes Act 1958 s 44(1)]
Possessing child pornography [Crimes Act 1958 s 70(1)]
Section 6AAA Statement: 5 y with a non-parole period of 3 y, 6 m
Other Orders: Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is life
2 The offending the subject of charges 2-7 was committed against the respondent's stepdaughter, Katie,[3] between 11 July 2012 and 1 February 2015, when she was aged between 12 and 14 years and the respondent was aged between 40 and 43 years. Charge 1 relates to videos recorded by the respondent of some of the sexual acts he performed with Katie and of Katie in a sexual context. Charge 8 includes possession of those videos as well as child pornography that is unrelated to Katie. Charges 4 and 7 are each representative of two occasions of the offence of indecent act with a child under 16.
3 The Director of Public Prosecutions has appealed against the respondent's sentence on the ground that the individual sentences for charges 2-8, all the orders for cumulation, the total effective sentence and the non-parole period are manifestly inadequate.
4 For the reasons that follow, the appeal will be allowed and the respondent will be sentenced as set out at [105] below.
5 The respondent met Katie's mother, Emily Merriman,[4] online in 2007. They commenced a relationship and in about 2008 or 2009 the respondent moved in with Ms Merriman and Ms Merriman's two children from a previous marriage, Kai[5] then aged about 11 and Katie, then aged about 9. The respondent and Ms Merriman married in approximately 2011.
6 During their relationship, the respondent and Ms Merriman were both shift workers; the respondent was a truck driver and Ms Merriman worked as a cleaner. Ms Merriman also kept horses, which she would tend to daily, at a separate property. Often, one of them was absent when the other was at home.
7 The respondent's offending against Katie commenced in 2012. The amended summary of prosecution opening described the offending the subject of charges 2-7 as follows:
Charge 2 - Indecent act with a child under 16 years
Between 11.7.2012 and 31.12.2012
Charge 3 - Incest by step-parent
Between 11.7.2012 and 31.12.2012
(Video footage forms part of the charge of producing child pornography).
Charge 4 - Indecent Act with child under 16 years
Between 11.7.2014 and 1.2.2015
Representative charge - 2 occasions
Charge 5 - Indecent Act with a Child under 16 years
Between 11.7.2014 & 1.2.2015
Charge 6 - Incest by step-parent
Between 11.7.2014 and 1.2.2015
(Video footage forms part of the charge of producing child pornography)
Charge 7 - Indecent Act with Child under 16 years
Between 1.1.2015 and 1.2.2015
Representative charge - 2 occasions
8 Police received information that the respondent had accessed child pornography online and, on 29 July 2015, they executed a search warrant at the home of the respondent and Ms Merriman. They located child pornography on an iPhone and iPad belonging to the respondent (charge 8, possession of child pornography). The respondent admitted possessing child pornography and was arrested. When police analysed the respondent's iPhone they located video files that included the respondent performing sexual acts with Katie. Details of the child pornography material in the respondent's possession are set out at [10]-[12] below.
9 Katie confirmed to police that the sexual acts with the respondent had taken place, and on 30 July 2015, she made a statement via a VARE. In her VARE, Katie stated that in the period 2012-2014, the respondent 'regularly pleaded and begged her to take part in sexual acts, including kissing her breasts, vagina and buttocks, as well as asking to look at her private body parts'. She had not been aware that there were any video recordings of the sexual acts until after the respondent's arrest.
10 The respondent's iPhone contained videos of him performing sexual acts with Katie. The videos are the subject of charge 1, producing child pornography. They were as follows:
(a) One video of the respondent massaging Katie's back, legs and inner thighs.
(c) One seven-minute video of the incest the subject of charge 3.
(d) One video of the respondent massaging Katie's inner and outer thighs just below the vaginal and anal region.
(e) One video of the respondent massaging Katie's inner thighs and separating her buttock cheeks to expose her anus and vaginal region.
(f) One four-minute video of the incest the subject of charge 6.
(g) One nine-minute video of Katie in the shower, getting out of the shower and drying herself, focusing on her vaginal region.
(h) One five-minute video of Katie sitting naked in the bath shaving her legs, focusing on her genital and breast areas. This video was filmed from outside of the house, through a window and blinds.
11 Edited versions of these videos were located on the respondent's iPad. His iPad also contained a PowerPoint-type presentation that showed Katie's face at the beginning and contained wording similar to '14 year old willing to share'. The presentation then showed pornographic images of Katie. A second PowerPoint presentation on the respondent's iPad showed child pornography images set to music accompanied by the words 'fun times'. The respondent also had an internet 'Dropbox' containing 110 child pornography videos, one of which was the video described in (h) above.
12 The child pornography on the respondent's iPhone and iPad depicted male and female children ranging in age from young babies to late teenagers. That material was categorised on the ANVIL[6] scale as follows:
Depictions of children with no sexual activity - nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination
Non-penetrative sexual activity between children or solo masturbation by a child
Non-penetrative sexual activity between a child and an adult, such as mutual masturbation
Penetrative sexual activity between children or between a child and an adult, including intercourse, cunnilingus and fellatio
Sadism, bestiality, humiliation (urination, defecation, vomiting, bondage) or any other conduct falling within the definition of 'Child Abuse' in the Criminal Code Act 1995 (Cth)
Anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity
13 The respondent participated in a record of interview after his arrest. Relevantly, he said the following:
(a) Regarding charge 3, depicted in the video referred to at [10(c)] above:
I guarantee you 100 percent there is not one video footage on there of my tongue touching her vagina ... I know the video you're talking about but there was not one stage did I ever - did my lips or tongue touch her vagina, and on that video there is nothing that says that I have ... [The video showed] me looking and kissing her leg, but never - not her vagina, no....
(b) Regarding charge 6, depicted in the video referred to at [10(f)] above:
I never penetrated her at all. That's 100 per cent false ... You've seen them. I'm not going to go through anything. All I'm saying now is 100 percent false that I penetrated [Katie] at all ...
(c) When the respondent was asked what the worst thing he had done in terms of sexual activity with or to Katie, he responded 'Looked and, without sounding too horrible, opened - [h]er lips', meaning her 'vagina lips'. When he was asked why, he replied 'Curiosity ... That's it'.
(d) He admitted to taking the video referred to at [10(h)] above while standing outside the house.
(e) Regarding charge 8, he said that he had downloaded child pornography through a Russian website over the course of one to two years. He acknowledged that he had 'a lot' and there were videos of naked boys and girls 'anywhere from kids in nappies sort of thing, real little kids, to 18' years old. One video included a girl about 10 or 12 years old videoing 'herself enticing her dog to lick her down below' and some pictures were of 'teenage girls swimming' and 'teenage boys doing selfies, naked with an erection'.
He said people had sent videos to his Dropbox, which he left there. He said that he was 'being inquisitive' and was 'not 100 percent sure why' he left the videos in his Dropbox, but denied that it was for 'sexual gratification'.
He said that he had transferred to his Dropbox a video of Katie naked in the bath by accident. He was not sure how he had done it. He admitted at least one other person had access to his Dropbox.
14 Ms Merriman provided a victim impact statement. She stated that she now takes anti-depressants and sleeping tablets due to her anxiety, depression and nightmares. She described feeling broken, useless and insecure and stated that she had trust issues and does not socialise much.
15 Katie did not provide a victim impact statement. However, Ms Merriman stated in her victim impact statement that Katie was constantly having panic attacks, had anxiety and was not eating or sleeping well.
16 The respondent was 45 years of age at the time of sentencing. He was born in New Zealand but moved with his mother to Sydney when he was 5 years old, after his parents divorced. For many years he was estranged from his father, who remained in New Zealand. The respondent has an older sister who lives in Queensland.
17 Before the respondent was born, his mother had another child who died at the age of one. She told him that she had not wanted another child and that she wished that he had not been born.
18 The respondent's mother was emotionally abusive and physically violent towards him, such that he has not had contact with her since 1998. She would constantly move housing and often sent her children to live with an aunt in Melbourne for periods of three to six months at a time. As a consequence of that disruption, the respondent attended numerous schools in Melbourne and interstate, experienced bullying and performed poorly academically.
19 When the respondent was about 13 and a half years old, he was sent to a boys' home in New South Wales. While living there he was repeatedly raped by two other boys and was also sexually abused by a female teacher and a male dormitory supervisor. As an adult, the respondent gave personal testimony about his experiences at the boys' home to the Royal Commission into Institutional Responses to Child Sexual Abuse, in a private session submission.
20 After leaving the boys' home, the respondent returned to Melbourne where he left school during Year 10 and commenced an apprenticeship as a cabinetmaker. After almost one year of the apprenticeship, he moved to Queensland to work as a jackaroo. He returned to Melbourne about six months later, when he obtained a job with a circus which required him to drive trucks. He was also employed at a newsagency for almost a year.
21 In May 1991, the respondent moved back to New Zealand and worked driving trucks for a man who was, in effect, a debt collector for criminal associations. In order to leave that employment, the respondent returned to Australia in 2007, where he gained employment as a truck driver. He continued to work as a truck driver until he was remanded in custody.
22 While the respondent was living in New Zealand, he formed a relationship of which a daughter was born. She lives in New Zealand, is approximately 24 years of age and has a young son. He remained in contact with his daughter until she learned about the current offending, which ended their relationship.
23 As a consequence of his offending, it is likely that the respondent will be deported to New Zealand as he does not hold Australian citizenship. He is concerned for his safety if he is deported as he has received threats from criminal organisations in New Zealand, to the effect that he is a 'dead man' if he returns.
24 It was submitted for the respondent on the plea that from the day he first offended against Katie he hated himself, but that he nevertheless continued to offend. It was also submitted that his offending had ceased some months prior to his arrest.
25 After being charged with the current offending, the respondent was bailed to live with a friend and continued working as an interstate truck driver and make financial contributions to Ms Merriman and her children. During this time he developed suicidal ideation and received counselling.
26 The respondent has a limited criminal history. On 28 August 1989, he was ordered to pay fines totalling $200 for the offences of being drunk and resisting arrest. On 1 November 1989 he was placed on a $500 good behaviour bond for 12 months for an offence of theft of a motor car and two offences of going equipped to steal.
27 The respondent does not have any history of drug or alcohol abuse, although he occasionally used marijuana.
28 Since his arrest, the respondent has been estranged from all his family members other than his father. His father occasionally telephones him from New Zealand.
29 In her sentencing remarks, the judge made specific observations about some of the individual charges and then made general observations about the respondent's overall offending, its aggravating features and the mitigating circumstances upon which the respondent relied.
30 In relation to the two incest charges, the judge referred to this Court's initial decision in Director of Public Prosecutions v Dalgliesh.[7] We will refer to this decision as 'Dalgliesh [No 1]', to the High Court's decision in Director of Public Prosecutions v Dalgliesh[8] as 'Dalgliesh (HCA)' and to this Court's decision in Director of Public Prosecutions v Dalgliesh,[9] which was decided upon remitter from the High Court, as 'Dalgliesh [No 2]'.
31 The judge noted that in Dalgliesh [No 1], this Court described the offence of incest as an inherent crime of violence which always involved physical subordination, even where there are no overt features of physical abuse, and which does long-term harm to its victims.[10] She also noted the Court's observations that sentences for incest had been inappropriately compressed by sentences for worst category offending and that the sentencing practice which had developed was 'not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender'.[11] Additionally, the judge noted the Court's further observation that sentences for incest offences of 'mid-range seriousness' must be adjusted upwards.[12]
32 On the two incest charges, the judge described the respondent's offending as 'most serious' and said that it was aggravated by 'the filming of it, and retention and formatting of that filming'.[13] She stated that she was satisfied that the respondent's offending 'comprises mid-range examples of the crime of incest'.[14] She rejected defence counsel's submission that the respondent's offending was 'at the lower end of the scale of incest both in number and form'.[15] She said:
In my view this was protracting offending, and, having viewed the filmed material, I accept it was ... done in the face of distress and with the assertion by [the respondent] in the process of parental authority, which ... amounted in the circumstances to an abuse of that authority.[16]
33 On the charge of possessing child pornography, the judge stated that the still images and video files possessed by the respondent were 'extensive and contained material extending to the grossest and most exploitative kind, involving babies, infants and toddlers, although that did not comprise the majority of it'.[17] She added that the extent and nature of the material deserved a 'stern response'.[18]
34 In relation to the respondent's overall offending against Katie, the judge stated that it was 'protracted and serious' and that the filming of the offending conduct and the retention of that film were aggravating features. She said that this was because the respondent 'turned this sexual exploitative material of [his] stepdaughter into a PowerPoint presentation and saved it, no doubt for [his] later gratification'.[19] She found that the respondent's moral culpability was 'high' and that his offending against Katie 'was a very serious breach of trust, involving also, as was evident in the footage, use of parental authority to achieve [his] ends'.[20] She regarded the filming as 'a further layer of exploitation on [the respondent's] behalf.'[21]
35 The judge took into account as a mitigating factor the respondent's early plea of guilty but noted that it was 'entered in the face of overwhelming evidence against [him]'.[22] The judge accepted that the respondent's plea of guilty and cooperation with the police had saved Katie the stress and trauma of cross-examination, and the community the expense of a trial.[23]
36 In relation to the respondent's history of neglect and physical and sexual abuse, the judge referred to R v AWF,[24] GEM v The Queen,[25] Marrah v The Queen[26] and Stewart v The Queen[27] in which this Court discussed the mitigatory relevance of an offender's social disadvantage and abuse in his or her formative years. She noted that there can be an association between a person's personal abuse as a child and his or her subsequent offending conduct, such as where early experience of sexual abuse leads to a failure to develop appropriate inhibitions against offending conduct in later life. She also noted that the weight to be given to the syndrome where a sexual abuse victim then goes on to abuse others would vary from case to case and that expert evidence would be critical to establish the nexus in a particular case.[28]
37 In the context of these observations, the judge said that she took into account that the respondent had a very difficult childhood, a very traumatic history and had endured serious sexual abuse.[29] However, she also observed that many years had passed since the offending against the respondent[30] and that no psychological material was tendered on the plea regarding the effect that those matters had on the respondent. She stated that, in particular, there was no psychological evidence of how the sexual abuse suffered by the respondent at the boys' home and the neglect and abuse he suffered at the hands of his mother contributed to his offending against Katie.[31] Accordingly, the judge made no finding of a nexus between the abuse suffered by the respondent and his offending.
38 The judge described the emotional toll that the offending had taken on the respondent as 'extremely high,'[32] as his sister and daughter refuse to have any relationship with him, and he has received threats from criminal elements in New Zealand. She accepted that the respondent had been a hardworking and productive member of the community for many years and did not have a relevant history of previous offending, although she did not regard those matters as unusual for this type of offending.[33]
39 The judge noted that the respondent's offending had 'apparently' stopped some months prior to his arrest and said that she accepted the defence submission that the cessation of the offending was a relevant matter that she had to take into account.[34]
40 The judge took into account in the respondent's favour the fact that it was likely that he would be deported to New Zealand upon his release from prison.[35] She said that the respondent's distress about the likely deportation will make his time in custody more onerous than other prisoners.[36] She referred to the prosecutor's submission that deportation was of lesser hardship to the respondent as he would not be deprived of ongoing family ties in Australia, he has family in New Zealand where he had lived previously and New Zealand is not a third-world country.[37] However, she did not say whether she accepted this submission.
41 The judge concluded that, having regard to both the mitigatory and aggravating features of the respondent's offending, there was 'no question but that [she] should deal with [the respondent] by way of sentence of imprisonment to be immediately served'.[38]
The sentences imposed by the learned sentencing judge are manifestly inadequate.
Particulars: The sentences reflect that the learned sentencing judge:
(a) in fixing the individual sentences, orders for cumulation, total effective sentence, and non-parole period, failed to give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence, specific deterrence and protection of the community;
(b) failed to have sufficient regard to the maximum penalties for the offences;
(c) failed to properly reflect the objective gravity of the offending conduct;
(d) failed to have sufficient regard to the impact of the offences upon the victim and her mother;
(e) gave too much weight to mitigating factors concerning the offender;
(f) made orders for concurrency that failed to properly reflect that the respondent fell to be sentenced as a serious sexual offender on charges 3, 4, 5, 6, 7 and 8;
(g) made orders for concurrency in respect of the individual sentences imposed that resulted in a total effective sentence and non-parole period that are manifestly inadequate in all the circumstances.
43 At the hearing of the appeal, the Director did not press particular (f), as the prosecutor had failed to inform the judge of the serious sexual offender provisions in pt 2A of the Sentencing Act 1991. However, the Director submitted that if the appeal were to succeed and the sentencing discretion was reopened, the respondent would stand to be sentenced as a serious sexual offender on charges 3-8.
44 The Director also clarified that he no longer sought to contend that the sentence of 18 months' imprisonment imposed on charge 1 was manifestly inadequate. However, he maintained that the cumulation of 2 months for that sentence was manifestly inadequate.
45 The Director submitted that the individual sentences imposed by the judge - other than for charge 1 - failed to reflect her findings that the respondent's offending was 'protracted and serious', his moral culpability was 'high' and the incest charges were 'mid-range'. He contended that this was particularly so in relation to the sentences of 2 years' imprisonment imposed on the incest charges and that if this Court found that the judge's categorisation of the offending as 'mid-range' was correct, she fell into error and the appeal must be allowed.
46 According to the Director, the offending was objectively grave and exhibited aggravating circumstances including: the prolonged nature of the offending, being at least eight discrete episodes over three years; the respective ages of the respondent and Katie and Katie's vulnerability; the gross breach of trust and abuse of parental authority; the covert video recording adding to Katie's moral degradation; another person's access to the Dropbox; and the respondent's persistence, including in the face of the complainant's obvious reluctance and distress.
47 The Director contended that the circumstances surrounding the indecent act offences, in which the respondent persistently importuned the complainant despite her obvious reluctance, protests and crying made those offences serious and grave examples of the offence of indecent act with a child under 16. He also argued that it was relevant that charges 4 and 7 were each representative of two incidents, which placed the respondent's offending in context and preventing him from submitting that the offending was isolated. The Director did not contend, however, that the offer of payment by the respondent relating to charge 4 could be relied upon as an aggravating factor, as that offer did not occur on the occasion charged on the indictment but on the second occasion which formed part of the representative charge.[39]
48 Notwithstanding that he conceded that the sentence imposed on charge 1 was within range, the Director contended that it was a serious example of producing child pornography as a consequence of: the circumstances of its production; the period of retention; the PowerPoint presentation using the words '14 year old willing to share'; and the fact that one video filmed by the respondent was shared in Dropbox. He argued that even after making due allowance for totality and avoiding double punishment, a higher level of cumulation was required.
49 In respect of the possession of child pornography charge, the Director submitted that a significantly greater sentence and level of cumulation were called for and emphasised the separate and discrete nature of the respondent's offending.
50 The Director submitted that the judge failed to give sufficient weight to just punishment, denunciation and general and specific deterrence as no reference was made to those sentencing purposes in her sentencing remarks. He contended that the judge had failed to give proper consideration to the sentencing principles of the respondent's insight into his offending, risk of reoffending and prospects of rehabilitation, as she made no findings regarding those issues.
51 According to the Director, the judge erred by giving significant weight to the respondent's deprived background and sexual abuse as a child in circumstances where there was no material that established any nexus between those matters and the respondent's offending. He argued that absent that nexus, those matters could only be given little weight.
52 The Director contended that the judge fell into similar error by giving significant weight to the risk that the respondent would be deported, which, given the matters set out at [40] above, should have been given little or no weight in the sentencing synthesis.
53 According to the Director, the aggravating features of the respondent's offending significantly 'trump' the mitigating factors.
54 The Director relied on the Sentencing Advisory Council's Sentencing Snapshot for incest,[40] published prior to Dalgliesh (HCA),[41] which he submitted could be used as a rough guide to determine whether individual sentences fell within the permissible range. The Sentencing Snapshot showed that, in the five-year period ending 30 June 2015, 95 per cent of offenders received an immediate term of imprisonment, no offender received a sentence of imprisonment of less than 2 years and 6 months, and the median sentence was 4 years and 6 months' imprisonment.[42]
55 The Director also relied on the Sentencing Snapshot for indecent act with a child under 16.[43] That Sentencing Snapshot showed that in the five-year period ending 30 June 2014, immediate custodial sentences were imposed in 52 per cent of cases. The median length of imprisonment during that period was 1 year and 11 months.[44]
56 The Director submitted that the sentencing discretion had miscarried to such a serious extent in the present case that it constituted an error of principle. As such, so it was said, there was no basis for this Court to exercise its residual discretion to dismiss the appeal.
57 The respondent submitted that the sentencing disposition was open to the judge. He contended that the judge had had proper regard to the numerous matters informing the sentencing discretion, including the circumstances of the offending and the significant matters that the respondent was able to call in aid in mitigation and arrived at sentences which, while moderate, were within the ranges that were available to her.
58 Regarding the gravity of his offending, the respondent submitted that the judge had erred in finding that the offences of incest were at the 'mid-range' of seriousness. He contended that, properly categorised, they were at the higher end of the lower range of seriousness for the offence of incest - which he conceded was a serious offence - because those charges were limited to two discrete acts, of relatively short duration, and involved only limited digital and lingual penetration. He argued that these forms of penetration were less serious than penile-vaginal penetration. He further argued that the offending lacked aggravating features that would have placed the offending in the mid or high-level ranges such as threats, ejaculation, risk of pregnancy or sexually transmitted disease, or violence or humiliation.
59 The respondent submitted that the sentences imposed for the indecent act charges were moderate, rather than manifestly inadequate, and properly reflected the objective characteristics of the offences and 'the significant and weighty range of mitigating factors that [he] could call in his aid'. He argued that the fact that the judge imposed different individual sentences for each of the four indecent act charges indicated that she carefully discriminated between the offences, graded them according to their objective seriousness and imposed appropriate individual sentences.
60 The respondent further contended that the sentence of 18 months' imprisonment imposed for the charge of producing child pornography properly reflected the aggravating features of his offending and that the sentence of 8 months' imprisonment for the charge of possession of child pornography was 'unremarkable'.
61 According to the respondent, the orders for cumulation of 33 per cent for charges 3, 4, 5 and 7 were appropriate. He argued that the lower order for cumulation on charge 1 was explicable as a result of the need to avoid double punishment with the incest charges depicted in the videos, and that the orders for cumulation on charges 2 and 8 were explicable by the application of the totality principle. The respondent further argued that there was nothing exceptional about the non-parole period, which was equal to about 70 per cent of the total effective sentence.
62 The respondent also submitted that, even if there had been error in the sentence imposed by the judge, it was appropriate for this Court to exercise its residual discretion to dismiss the appeal. He contended that the primary purpose of Crown appeals is not the general correction of errors made by sentencing judges but to lay down principles to guide courts.[45] He further contended that the present case did not raise any question of principle that needed to be corrected and thus appellate intervention was not warranted.
63 Both parties agreed that, in relation to charges 1 and 8, the description of the pornographic material in the prosecution opening and the judge's sentencing remarks was accurate and adequate and that it was not necessary for us to view the material. Accordingly, we have not viewed the material.
64 In our opinion, the Director's manifest inadequacy ground of appeal must be upheld. The judge correctly assessed the gravity of the respondent's offending and his moral culpability. However, the individual sentences - other than for charge 1 - and the orders for cumulation which she imposed do not properly reflect that assessment and other relevant sentencing considerations, particularly just punishment, denunciation, general deterrence and protection of the community.
66 In assessing the objective gravity of the offence of incest, it is important to consider 'the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurs, each of which can increase the objective gravity of the offending, the culpability of the offender and the damage to the victim and the victim's family.'[46] Consideration of these matters demonstrates that the objective gravity of the respondent's offending and his moral culpability were very high and that the judge was right to characterise the respondent's offending as 'mid-range examples of the crime of incest'.
67 First, the offending conduct involved lingual and digital penetration on two separate occasions. The offending occurred in the context of sexual offending against Katie over a two and a half-year period. We reject the respondent's submission that the fact that his penetration of Katie was lingual and digital rather than penile-vaginal rendered his offending less serious. Lingual and digital penetration are not necessarily less serious than penile-vaginal penetration; the gravity of the offending depends on all the circumstances of the case.[47] In the present case, the circumstances surrounding the lingual and digital penetration of Katie were so distressing and terrifying to her, that the offending could not be considered less serious due to the absence of penile penetration.
68 Secondly, as the judge found, the offending was protracted. The first incident in which penetration took place lasted seven minutes and the second incident lasted four minutes. We reject the respondent's submission that the offending was of relatively short duration and that the penetration was 'limited'. The gravity of the offending cannot be assessed merely by reference to the duration of the penetration. The lead-up to the penetration in the present case involved conduct by the respondent which involved subjugation and degradation of Katie.
69 We also reject the respondent's submission that the offending did not involve humiliation of Katie. Katie clearly felt humiliated, as she tried to retreat and hold on to her clothing when the respondent tried to undress her. On the first occasion she covered her mouth with her hand and shook her head, and on the second occasion she covered her face with a pillow.
70 Thirdly, as the judge found, the offending took place in the face of Katie's protests and obvious distress. In both incidents, Katie made it clear to the respondent that she did not want to engage in any sexual activity with him. He ignored her entreaties to stop and persisted notwithstanding that Katie began to cry and tried to resist. On the second occasion, Katie was so distressed that she cried hysterically as if she was hyperventilating. We reject the respondent's submission that his offending lacked violence. Although there was no discrete act of physical violence, as this Court said in Dalgliesh [No 1],[48] incest is an inherently violent offence which involves physical subordination of the victim.
71 Fourthly, as the judge found, the offending involved a gross breach of trust and abuse of parental authority on the part of the respondent towards his stepdaughter, who was entitled to feel safe in her own home.
72 Fifthly, as the judge found, the effect of the offending against Katie was 'grievous'.[49] This finding is more than justified having regard to Ms Merriman's victim impact statement.[50] Even in the absence of a victim impact statement, it can be safely assumed that, as a victim of incest, Katie suffered lasting psychological effects of the offending. There is a presumption of harm in cases of sexual offending against children[51] and, as this Court has noted, young victims of incest carry that scar for the rest of their lives.[52]
73 Also relevant to the assessment of the gravity of the offending was the fact that the respondent filmed the offending conduct without Katie's knowledge. This added a layer of degradation and indignity to the physical abuse. However, in order to avoid double punishment, we have not treated the production and possession of the videos of the incidents of incest - which comprise part of the offending the subject of charges 1 and 8 - as aggravating features of the incest offences.
74 It is true, as the respondent submitted, that his offending lacked some of the aggravating features, such as express threats, ejaculation and the risk of pregnancy and sexually transmitted diseases, which often attend the offence of incest. However, the absence of these aggravating features does not mean, as the respondent submitted, that his offending fell into the lower range. Their absence simply means that the offending, while grave, was not even more serious.
75 The judge correctly characterised the two incest offences as 'mid-range' and referred to the statement in Dalgliesh [No 1] that sentences for incest offences falling within that range had been too low historically and must be increased.[53] Unfortunately, the sentence of 2 years' imprisonment which the judge imposed on each incest offence failed to reflect the requirement in Dalgliesh [No 1] that there be an uplift of sentencing practice, which was not the subject of any criticism by the High Court in Dalgliesh (HCA). Equally, it failed to reflect the maximum penalty of 25 years' imprisonment.
76 We note, however, that the judge did not have the benefit of Dalgliesh (HCA) or Dalgliesh [No 2], which were published after the respondent was sentenced. In Dalgliesh [No 2], the offender caused his 13-year-old stepdaughter to fall pregnant and acquiesced in her initial false account as to who had impregnated her. The pregnancy was terminated. The original sentence of 3 years and 6 months' imprisonment was increased to 7 years and 6 months. In McCray v The Queen,[54] the offender inserted his fingers into his eight-year-old daughter's vagina while she pretended to sleep on numerous occasions over a period of nearly two years. His application for leave to appeal against his sentence of 5 years' imprisonment for a course of conduct charge of incest was refused. In Thrussell v The Queen,[55] the offender physically restrained his 13-year-old daughter before removing her clothes by force and having sexual intercourse with her, which caused her to bleed profusely. He repeated this conduct every few days for about a week. His appeal against his sentence of six years' imprisonment - which this Court described as 'moderate' in all the circumstances - was dismissed.[56]
77 We now turn to the four charges of indecent act with a child under 16. The judge did not make a specific finding as to the seriousness of the respondent's indecent acts. However, it is obvious from her sentencing remarks that her conclusion that the respondent's overall offending against Katie was 'protracted and serious', and that his moral culpability was 'high', encompassed this offending.
78 The judge was right to so describe the respondent's four indecent act offences. Those offences took place between 11 July 2012 and 1 February 2015, when Katie was aged between 12 and 14 years. The offending was persistent and took place despite Katie's protests and resistance. Two of the charges were representative charges, each involving two separate occasions. One representative occasion involved a monetary inducement. All of these matters are relevant to assessing the nature and gravity of the offending. It is not necessary for us to consider the issue of whether individual features of second or subsequent occasions which form part of a representative charge can be treated as aggravating factors in relation to that charge.[57]
79 The maximum penalty of 10 years' imprisonment for the offence of indecent act with a child under 16 is indicative of the seriousness with which Parliament regards this offence.
80 In Director of Public Prosecutions v Meharry,[58] this Court resentenced the offender to 18 months' imprisonment for indecent act with a 15-year-old girl which comprised touching the victim's bottom under her shorts, undoing her shorts and rubbing her clitoris on the outside of her bikini bottom. In Tones v The Queen,[59] this Court dismissed an appeal against sentences of 18 months' imprisonment imposed on each of two charges of indecent act with a girl aged 14-15 years, which comprised the offender licking the victim's vagina and putting his mouth on her vagina.
81 The Sentencing Snapshot to which the Director referred in his submissions indicated that, in the five-year period ending 30 June 2014, the median sentence for indecent act with a child under 16 was 1 year and 11 months' imprisonment.
82 Numerous decisions of this Court have emphasised the importance of general deterrence and protection of the community in relation to sexual offences against children.[60] In the present case, the judge did not refer to these sentencing considerations.
83 Having regard to the above matters, the judge's sentences of 10 months' imprisonment for charge 2, 12 months' imprisonment for charges 4 and 7 and 6 months' imprisonment for charge 5 are manifestly inadequate.
84 We now turn to the charge of possessing child pornography.
85 As stated at [33] above, the judge found that the pornography in the possession of the respondent was extensive and extended 'to the grossest and most exploitative kind, involving babies, infants and toddlers, although that did not comprise a majority of it', and that the offending deserved 'a stern response'. It is difficult to reconcile the judge's sentence of 8 months' imprisonment with this finding and the maximum penalty of 5 years' imprisonment which applied at the time of the respondent's offending. The sentence falls significantly short of being 'stern'.
86 In Director of Public Prosecutions v Garside,[61] this Court set out the principles relevant to sentencing for child pornography offences and adopted the following criteria for determining the objective seriousness of the offending:
The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed ...[62]
87 In the present case: the pornography involved babies, infants and toddlers as well as older children; the content of the material extended to 'the grossest and most exploitative kind'; the number of images - and thus the number of children victimised - was high;[63] and the respondent had accumulated the material over one to two years.[64] Further, some of the pornographic material - including a video of Katie - was located on the respondent's shared Dropbox file to which at least one other person had access.
88 Recent cases in this Court have involved sentences significantly greater than 8 months' imprisonment for the possession of child pornography. For example, in Meharry this Court resentenced the offender to 3 years' imprisonment for possessing 197 still images and 584 video files. In Dennis v The Queen[65] this Court, in resentencing the offender, did not disturb the sentence of 18 months' imprisonment for possessing 1,410 still images and 217 video files. However, the offender in that case had been able to call in aid many mitigating factors. In Director of Public Prosecutions v Swingler[66] this Court similarly did not disturb the offender's sentence of 18 months' imprisonment for possessing 21 'Level 4 images'.[67]
89 In Meharry, this Court said the following about the importance of general deterrence in relation to online sexual offences against children, including possession of child pornography:
The sentences also needed to satisfy the requirements of general and specific deterrence. As to general deterrence, online sexual offences against children - including possession of child pornography - are easy to commit and difficult to detect. ... It is therefore essential that those who may be tempted to engage in such offending clearly understand that, if they do so, they will be sentenced to significant terms of imprisonment.[68]
90 In the present case, the judge did not refer to general deterrence.
91 Having regard to the above discussion, it was not reasonably open to the judge to impose a sentence of 8 months' imprisonment for the offence of possessing child pornography if proper weight was given to the relevant sentencing considerations, and in particular to the objective gravity of the offending. In reaching this conclusion, we have been mindful of the fact that there is some overlap between this offence and the other offences and that the respondent should not be punished more than once for the same conduct.
92 We note that, as mentioned, the Crown did not contend that the sentence for the charge of production of child pornography was manifestly inadequate.
93 We now turn to the orders for cumulation for charges 1, 2, 3, 4, 5, 7 and 8. In our opinion, the cumulation ordered by the judge for these charges does not adequately reflect the separate and distinct offending that those charges comprised or the moral culpability that they involved.
94 We accept that, as the respondent pleaded guilty to multiple offences, cumulation must be moderated to give effect to the principles of totality and proportionality. This is particularly so because there is some overlap between the sexual offences the subject of charges 2-7 and the pornography offences the subject of charges 1 and 8. However, the orders for cumulation made by the judge are so low that, for the reasons discussed in the context of the sentences for the individual charges, the total effective sentence fails to reflect the gravity of the respondent's overall offending.
95 In our opinion, in particular, the cumulation of 2 months for the sentence of 18 months for the production of child pornography charge - which the Crown accepted was within range, albeit towards the bottom of that range - was plainly insufficient. The offending was committed over a period of two and a half years and involved the recording of eight videos of Katie, the longest of which was nine minutes.
96 The judge was right to take into account the respondent's early plea of guilty in determining his sentence. He was entitled to an appropriate discount for his plea and his cooperation with the police. Although the judge did not expressly find that the plea demonstrated remorse, it is implicit that she did so having regard to her statement that she took into account in the respondent's favour the fact that his offending ceased some time before his arrest.[69] The judge was also right to take into account the hardship caused to the respondent by the risk that he will be deported to New Zealand after his release from prison, but to moderate the weight to be given to this factor due to the fact that the respondent had lived in New Zealand for a significant period, continued to have family connections in that country and no longer has strong family ties in Australia.[70]
97 We also agree with the judge that notwithstanding the absence of evidence of any link between the respondent's 'traumatic history' - including the neglect and abuse at the hands of his mother and the sexual abuse at the boys' home in New South Wales - and his offending against Katie, that history was a relevant mitigating factor in the circumstances of this case.[71]
98 Taken together, the above mitigating circumstances warranted a significant discount on the respondent's sentence. However, those circumstances had to be balanced against the gravity of the respondent's offending and the attending aggravating features. The sentences imposed by the judge on the charges other than charge 1 and the orders for cumulation she made were so disconnected from the gravity of the offending and the respondent's moral culpability that a clear inference arises that the judge failed to give appropriate weight to these sentencing considerations. Indeed, as the judge did not expressly refer to just punishment, general deterrence, denunciation and protection of the community, it may also be inferred that she failed to give appropriate weight to these important sentencing considerations.
99 It follows that, in our opinion, the sentencing discretion seriously miscarried in the present case. The disconnect to which we have referred is so pronounced that it bespeaks of error in principle in the exercise of that discretion. In these circumstances, we are satisfied that this is not an appropriate case for the exercise of the Court's residual discretion to dismiss the appeal.[72] Accordingly, the appeal will be allowed and the respondent will be resentenced.
100 At the hearing of the appeal, the respondent tendered records of his mental health assessments since he was incarcerated. The Director conceded that, if the resentencing discretion were reopened, that evidence would be relevant to this Court's exercise of the sentencing discretion.
101 The mental health records indicate that since the respondent was imprisoned for the current offending, he has experienced anxiety, poor sleep patterns and nightmares and found it difficult to cope with 'losing everything'. He has expressed suicidal and self-harm ideation - particularly about the possibility of being deported - and felt alone and that he has no one to support him.
102 In January 2017, shortly after he was sentenced, the respondent was informed that one of the men who had sexually abused him at the boys' home in New South Wales was imprisoned at the same correctional centre as him. He was shocked by the news, as he believed that the individual concerned would remain in New South Wales. The news has caused him to experience flashbacks to the incidents of sexual abuse when he was a child and to feel emotional and overwhelmed.
103 The respondent submitted that as a consequence of his traumatic experience as a youth in an institutional setting, and the presence of his abuser at the same correctional facility, any sentence of imprisonment imposed on him would be more burdensome than on someone who had not experienced abuse in an institutional setting.
104 We accept that submission. The respondent's experiences of neglect and abuse as a child and the emotional hardship that he is currently experiencing in custody are important matters that can be taken into account in mitigation of sentence,[73] and we have done so.
105 Having regard to the gravity of the respondent's offending and the aggravating and mitigatory circumstances to which we have referred, he will be resentenced as follows:
106 It will be noted in the records of the Court that, in relation to charges 3-8, the respondent has been sentenced as a serious sexual offender. In accordance with s 6D of the Sentencing Act 1991, we have had regard to the protection of the community from the respondent as the principal purpose of sentencing him but have not imposed a disproportionate sentence. We have 'otherwise directed' for the purposes of s 6E of that Act, that is, we have not directed that the entirety of the sentences for charges 3-8 be served cumulatively.
107 Pursuant to s 6AAA of the Sentencing Act 1991 a declaration will be made that, but for the respondent's plea of guilty, we would have sentenced him to a total effective sentence of 13 years' imprisonment with a non-parole period of 10 years and 6 months.
108 A declaration will also be made that the respondent must continue to comply with the reporting obligations imposed by pt 3 of the Sex Offenders Registration Act 2004.
[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
[2] DPP v Tewksbury (a pseudonym) [2016] VCC 1918 ('Sentencing remarks').
[6] Australian National Victim Image Library.
[10] Dalgliesh [No 1] [2016] VSCA 148 [46], [85].
[11] Dalgliesh [No 1] [2016] VSCA 148 [128], [130].
[12] Dalgliesh [No 1] [2016] VSCA 148 [128], [131].
[20] Sentencing remarks [57]. At para 50 of her sentencing remarks, the judge also described the respondent's offending as involving 'a gross breach of trust'.
[24] [2000] VSCA 172; (2000) 2 VR 1, 3-4 [3]-[7], 9-10 [29]-[34].
[25] [2010] VSCA 168 [54].
[26] [2014] VSCA 119 [16]-[17].
[27] [2015] VSCA 368 [26].
[34] Sentencing remarks [37], [54].
[35] The judge relied upon Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 295 [27].
[39] The Director referred to R v CJK [2009] VSCA 58; (2009) 22 VR 104, 113-14 [58]; Lord v The Queen [2013] VSCA 80 [21].
[40] Sentencing Advisory Council, Sentencing Snapshot No 192: Incest (June 2016).
[42] Sentencing Advisory Council, Sentencing Snapshot No 192: Incest (June 2016) 2.
[43] Sentencing Advisory Council, Sentencing Snapshot No 178: Indecent Act with Child Under 16 (June 2015).
[44] Sentencing Advisory Council, Sentencing Snapshot No 178: Indecent Act with Child Under 16 (June 2015) 2-3.
[45] The respondent relied on Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 477 [36].
[46] Dalgliesh [No 1] [2016] VSCA 148 [73].
[47] R v Brown [2002] VSCA 207; (2002) 5 VR 463, 478 [57]. Cf C v Western Australia [2006] WASCA 261 [13], [28]-[35]; MH v The Queen [2011] NSWCCA 230 [36]-[39].
[48] [2016] VSCA 148 [45]-[46], [85]. See also Dalgliesh (HCA) (2017) 319 ALR 37, 49 [57].
[51] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 364 [3], 371 [33].
[52] R v KHB [2004] VSCA 219 [105]; DPP v Dalgliesh [No 2] [2017] VSCA 360 [70].
[53] The review of the authorities in Dalgliesh [No 1] indicates that sentences for cases of incest with a dependent child under the age of 18 were around 3 years and 6 months or 4 years' imprisonment and that cases involving 'offending towards the top of mid-range seriousness' were between 4 and 7 years' imprisonment with a sentence of 4 years being 'not uncommon'. See Dalgliesh [No 1] [2016] VSCA 148 [40], [73]. The Sentencing Snapshot to which the Director referred in his submissions also indicated that, in the five-year period ending 30 June 2015, the median sentence for incest was 4 years and 6 months' imprisonment.
[55] [2017] VSCA 386 ('Thrussell').
[56] Thrussell [2017] VSCA 386 [162].
[57] Cf Calazzo v The Queen [2017] VSCA 242 [48]-[68].
[58] [2017] VSCA 387 ('Meharry').
[60] See, eg, DPP v Garside (2016) 50 VR 800, 810 [25], 820-1 [71] ('Garside'); Meharry [2017] VSCA 387 [166], [199].
[62] Garside (2016) 50 VR 800, 810 [25] (citations omitted). See also Dennis v The Queen [2017] VSCA 251 [41].
[66] [2017] VSCA 305 ('Swingler').
[67] Swingler [2017] VSCA 305 [21].
[68] Meharry [2017] VSCA 387 [166]. See also [199].
[70] See Konamala v The Queen [2016] VSCA 48 [33]-[36]; Schneider v The Queen [2016] VSCA 76 [24]-[25]; DPP v Zhuang (2015) 250 A Crim R 282, 301-2 [54].
[71] See, eg, DPP v Benson [2017] VSCA 148 [31], [39].
[72] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658-60 [103]-[115]; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 477-80 [36]-[44]. See, eg, DPP v Basic [2017] VSCA 376 [112]-[116]; R v Yuan (2015) 252 A Crim R 422, 437 [64]-[66]; DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 422-4 [103]-[111].
[73] GEM v The Queen [2010] VSCA 168 [54]; R v AWF [2000] VSCA 172; (2000) 2 VR 1, 3-4 [3]-[7], 9-10 [29]-[34]; Stewart v The Queen [2015] VSCA 368 [26]; Marrah v The Queen [2014] VSCA 119 [16]-[17]; R v Smith (1987) 44 SASR 587, 589; R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, 267 [30], 268 [33].
DPP
Tewksbury
(2010) 28 VR 288
(2017) 319 ALR 37
(2011) 32 VR 361
(2010) 31 VR 634
(1987) 44 SASR 587
(2016) 50 VR 800
(2017) 349 ALR 37
(2000) 2 VR 1
(2009) 22 VR 104
(2011) 244 CLR 462
(2002) 5 VR 463
(2015) 47 VR 395
(2005) 11 VR 258