DPP v V H [2004] VSCA 180

Court of Appeal (Vic)|2004-10-07|Before: CALLAWAY, BUCHANAN AND EAMES, JJ.A.

Criminal law - Six counts of incest - One count of being in possession of child pornography - Crown appeal against sentence - Whether sentences imposed for incest manifestly inadequate - Whether use of child pornography in attempt to debauch victim a circumstance of aggravation of incest - Representative counts - Absence of remorse and insight - Total effective sentence of seven years' imprisonment with non-parole period of five years set aside - Double jeopardy - Total effective sentence of nine years' imprisonment with non-parole period of seven years substituted.

The Director of Public Prosecutions appeals against the sentence on the ground that it is manifestly inadequate. It is not contended that the provisions of s.6D(b) of the Sentencing Act 1991 should have been invoked, but it is contended that the judge failed adequately to reflect the gravity of the offences, both generally and in this particular case; that his Honour failed to take into account, or sufficiently to take into account, the aspects of both general and specific deterrence; and that he gave too much weight to factors going to mitigation and insufficient weight to the breach of trust involved in the respondent's offending, the effect on the victim and the respondent's lack of remorse.[2]

The respondent was born in Belarus. He served with the Russian army in Afghanistan in 1988 and, on his return to Belarus, met and married his wife T. Their daughter H was born on 26th October 1989. During the period of the offences she turned 13. The respondent and his wife subsequently had twins, boys born in 1996. The respondent worked on construction sites and in other occupations, but life was hard in the former Soviet Union in the 1990s. The respondent and T separated but were subsequently reconciled. Seeking a new country, he travelled to Australia on a tourist visa in 2000 and, the next year, was sponsored by a construction company. He, in turn, was able to sponsor his family, who migrated to Australia and arrived in Melbourne in May 2002.

Shortly after their arrival, while his wife was at work, the respondent sent the twins outside to play. He entered H's bedroom, where he placed her on her bed and, while she was lying on her back, climbed on top of her. He abruptly introduced his penis into her vagina causing excruciating pain. Count 1 was representative of repeated incidents of vaginal intercourse over a period of nearly eight months ending with the respondent's arrest. Count 2 comprised a representative allegation of anal penetration, again on several occasions over the same period but far less frequently. The two offences alleged in counts 1 and 2, for they were representative not rolled-up counts,[3] were committed between 3rd May 2002 and 23rd December 2002.

Counts 3 and 4 were discrete counts of oral penile penetration committed in mid-December 2002. On the first occasion the respondent went into H's bedroom, told her he was rushing off to work and wanted to do it quickly, forced his penis into her mouth and ejaculated (count 3). On the following day the episode was repeated (count 4). The offences the subject of counts 5 and 6 were committed on 24th December 2002. The respondent entered H's bedroom, removed her pants and underwear, oiled her vagina and anus and penetrated her vagina with his penis (count 5). Shortly thereafter he bent his daughter over the toilet bowl in the lavatory, again removed her pants and underwear, penetrated her vagina with his penis from behind and ejaculated on to her back (count 6).

The respondent attempted to persuade H that incest was normal. For that purpose, towards the end of the period of offending, he showed her various pornographic images depicting sexual relations with children. Those images had been downloaded by him from the Internet. When his home was searched, police found a disc containing 39 pictures of child pornography. It was common ground at the plea that the sentence imposed on count 7 should be concurrent with the sentences imposed on counts 1 and 2 on the basis that the attempt to debauch his daughter aggravated the offences charged in counts 1 and 2. I shall return to this topic.

Mr Elston submitted that the individual sentences imposed on counts 1 to 6 were far too low and that there was insufficient cumulation having regard to the seriousness of the offences the subject of those counts. He emphasized that the maximum custodial penalty had been increased in 1997 from 20 years' to 25 years' imprisonment. A prima facie rule of cumulation applied to the sentences imposed on counts 3 to 6, but the learned judge had directed that they all be served concurrently. The respondent had breached his daughter's trust, harmed her and shattered the family unit. The discount to be allowed for his plea of guilty was to be tempered by the benefit he had already received from the two representative counts.[4] The respondent's prospects of rehabilitation were not good.[5]

Mr Grace correctly identified the central issue as being whether the individual sentences or the total effective sentence were outside the range. Further, appellate intervention was constrained by the principles summarized by Charles, J.A. in R. v. Clarke[6]. They had been endorsed by the High Court and, in Lowndes v. R.[7], their Honours had emphasized that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently. The respondent had pleaded guilty, had no previous convictions, had a history of hard work, had spent much of his time in custody in isolation 23 hours per day and would serve his sentence in protection. It would be a sad, lonely existence, cut off from his family. He had already attempted suicide.

In his submissions Mr Elston had supported the view of count 7 adopted below. The fact that the respondent had used the pornography to try to debauch his daughter was to be reflected only in heavier sentences on counts 1 and 2. Mr Grace submitted that it was wrong to use the facts pertaining to count 7 to increase the sentences on other counts. I doubt that the approach adopted below was impermissible[8] but, in response to Mr Grace's submission, I propose that the sentence imposed on count 7 be increased and a measure of cumulation directed.[9] To avoid double punishment, that will have to be borne in mind in resentencing on counts 1 and 2. In R. v. Coffey[10] the Court as presently constituted said that child pornography involves the corruption and violation of children and explained that the possession of such pornography creates a market which encourages the further exploitation of children. The offence created by s.70 of the Crimes Act 1958 was intended, among other things, to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences would ensue for those who produced it. In that case we affirmed a sentence of six months' imprisonment. This case was far worse because of the use to which the respondent put the images that he had downloaded.

I can detect no specific error in the learned judge's sentencing remarks. On the contrary, they were carefully constructed and carefully expressed. Weight was given to the respondent's plea of guilty, even though it did not betoken insight or remorse, because it still had considerable utilitarian value.[11] (It was nevertheless to be remembered, as Mr Elston submitted, that the respondent had the benefit of two representative counts.) The circumstances of the respondent's remand and the likelihood of his serving his sentence in protection, together with separation from his family, were taken into account. The prima facie rule of cumulation in s.6E may be readily displaced in the interests of totality.[12] His Honour gave discrete consideration to the non-parole period that should be fixed.[13]

The difficulty is, in my respectful opinion, that the resultant sentences do not sufficiently reflect the gravity of the offences. These were bad examples of incest committed by a father against his young daughter, whom he treated as his sexual property. There is little by way of mitigation except the matters to which I have already referred. The sexual abuse of children by persons in a position of trust is intolerable.[14] In a case like this, just punishment and curial denunciation as well as general deterrence are important sentencing objectives. The sentences cannot be tempered in the way that they might have been if the offences had been isolated incidents or the subject of remorse and insight.[15]

The manifest inadequacy of the sentences shows that, notwithstanding the absence of specific error, there must have been error of principle. Appellate intervention is warranted to maintain sentencing standards lest there be justified concern about the extension of leniency where it is not warranted. There are cases where the community interest is best served by mercy, and there may be many reasons for clemency, but this is not such a case.

I would allow the appeal, set aside the sentences imposed on each of counts 1 to 7 and re-sentence the respondent on those counts as follows:

The respondent is entitled to a discount because, through no fault of his own, he is standing for sentence twice.[16] Whether or not that is a desirable rule of law, it is a rule that is binding upon us, which only Parliament could change. I have not discounted the individual sentences for double jeopardy, but the total effective sentence must be so discounted.[17] For that reason I propose that only 12 months of the sentence imposed on count 2 and six months of each of the sentences imposed on counts 3 and 7 be served cumulatively upon each other and upon the sentence imposed on count 1 and that otherwise all the sentences be served concurrently. That results in a total effective sentence of nine years' imprisonment. I would fix a non-parole period of seven years.

I agree with Callaway, J.A. that, for the reasons he has stated, the appeal should be allowed and the respondent re-sentenced as his Honour proposes.

The sole ground of appeal in this case was that the sentence was manifestly inadequate. One of the nine particulars in the notice of appeal whereby the manifest inadequacy was sought to be explained or illustrated was the contention that the learned sentencing judge erred by not imposing a disproportionate sentence, as permitted by s.6D(b) of the Sentencing Act 1991. That particular was not argued on the appeal, no doubt because it was subsequently realised that on the plea hearing the prosecutor expressly conceded, when asked by the judge, that it was not an appropriate case for the imposition of such a sentence. On the appeal it was accepted by counsel for the Director that the concession was appropriately made in the court below.

Having had the benefit of reading in draft the reasons of Callaway, J.A., I respectfully agree with his Honour that the sentencing remarks of the judge do not betray specific sentencing error. His Honour concludes, however, that the individual sentences and the total effective sentence fail to sufficiently reflect the gravity of the offences. Mr Grace, senior counsel for the respondent, correctly submitted that the question, in the end, comes down to whether the sentences imposed are outside the range of sentences available to the judge, thereby reflecting sentencing error.

The sentencing remarks of the judge indicate that he sought to structure the sentence in a way that produced a total effective sentence which reflected his synthesis of all relevant sentencing considerations. It might have been structured differently, perhaps providing for some cumulation of portions of the sentences on counts 3 and 4, and also on counts 5 and 6 (the prosecutor did not seek cumulation of any portion of the sentence on count 7), but it seems clear that had he done so his Honour would have further moderated the sentence on counts 1 and 2. A Director's appeal can provide guidance as to sentencing standards for individual counts, thus a concentration on the total effective sentence might give a misleading impression as to the appropriateness of the individual sentences imposed[18]. Nonetheless, it is appropriate, in my opinion, to adopt the approach the learned sentencing judge took and to concentrate attention on the total effective sentence so as to ask whether the intuitive synthesis produced a sentence which was outside the range properly open to him. I found that question to be a very difficult one to resolve in this case.

These are very serious examples of offences of incest. Mr Elston characterised the conduct in various ways, including that the offences constituted absolutely appalling instances of the offences; that they involved an extraordinary, callous, disregard of the rights of the victim; they involved the exploitation of the victim in circumstances of a gross breach of trust; and that they reflected the respondent's domination of the victim. I agree that all of those descriptions could properly be applied in this case, but after reviewing a very large number of incest cases which have been dealt with by the Court in recent years, it seems to me that such descriptions might equally be applied in almost all of those cases. Incest is an appalling crime, with almost inevitable long-term consequences for the victims. An examination of the facts of the large number of incest cases which this court has dealt with in recent years presents a depressing picture of unrelieved depravity and betrayal. Many of the cases that have come to this Court have, in fact, involved offending conduct over a much longer time frame than this case, and - whilst making allowance for the fact that counts 1 and 2 are representative counts - involved no fewer instances, nor less serious conduct than the offences in this case. Many of the cases involved even younger children than the victim in this case, and multiple child victims have often been involved. Very often, little remorse had been shown by the offenders.

The Director now contends that the sentence in this case was manifestly inadequate, that is, was outside the range properly open to a sentencing judge. As has been repeatedly said concerning Director's appeals, the question on appeal is not what sentence the judges on appeal would have imposed, but whether the sentence imposed was outside the range available to the judge[19].

The primary error of the learned sentencing judge which Mr Elston identified was to be found in the overall synthesis, that is, the final conclusion that he reached as to the total effective sentence. In D.P.P. v. Cook[20] Chernov, J.A. (citing a passage in the judgment of Brennan, Deane, Dawson and Gaudron, JJ. in Everett v. the Queen[21]) held that a Director's appeal could only succeed if the sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle. Reference to a sentencing "range" is an acknowledgment that sentencing standards allow for judges coming to different conclusions as to the appropriate sentence in similar cases, yet without thereby falling into error. Full weight should be given to the experience of sentencing judges when, as in this case, they have conducted a careful and thorough analysis of the facts and of all of the relevant sentencing considerations in such a case. As Batt, J.A. observed in R. v. R.T.G.[22], when considering a complaint that a sentence in an incest case was manifestly excessive:

"Now, sentencing is inherently and par excellence a discretionary exercise, so that there is no one correct sentence. Rather, there is a range of sentences open to a sentencing judge in the exercise of a sound discretionary determination. Appellate courts must, I consider, accord to sentencing judges a proper measure of autonomy in the exercise of that discretion".

There have been many instances of the imposition of more severe sentences than those imposed in this case, some, but not all of them, being described as within the worst category[23], but upon conducting a review of a wide sample of incest cases heard on appeal by this Court in the last few years, it must be acknowledged that there are also many instances of less severe sentences in cases with some similarities to the present case. I accept, however, that examination of other cases in order to determine the range of sentences appropriate to a given case can only be of limited assistance[24]; whilst the upper and lower level of sentences imposed may be thereby ascertained, every case has its own unique features. Thus, in determining whether a sentence was outside the range available to the judge the comparison ought to be by reference to similar instances of the offences. Whilst it is certainly not clear-cut that the sentence in this case constitutes a departure from the range of sentences imposed or upheld in many apparently similar cases[25], that observation needs qualification. An attempt to identify similarities between the case at hand and other cases, in order to identify an appropriate range, is not only difficult in itself but it can be a distraction from close analysis of the instant case.

The very fact that there have been so many incest cases coming before the courts explains why considerations of general and specific deterrence have been given continuing and particular weight by this Court: the Court has said many times that sentences for these offences must reflect the abhorrence within the community for such conduct[26]. At the same time, the very fact that so many offenders have been and continue to be dealt with by the courts for this offence means that the courts must be particularly careful to ensure, so far as possible, that there is consistency in sentencing. That is a primary function of this Court, and Director's appeals play an important role in facilitating an overview for that purpose. The focus of attention on whether a sentence is within the appropriate range encourages consistency in sentencing, whilst at the same time recognising that the sentencing process must allow for different perceptions by judges in their evaluation of relevant sentencing considerations. It must be recognised, however, that reference to a sentencing "range" is a very inexact benchmark, and that a conclusion that a sentence is manifestly inadequate is ultimately an intuitive one.[27] Being mindful of those considerations, and of the obvious care with which the judge approached the sentencing task in this case, I have been slow to conclude that the sentence does betray error, but that is the conclusion to which I have been drawn.

As the judge rightly acknowledged, there were some mitigatory factors in the case. The most important such factors were the respondent's lack of prior convictions, his good work history and the fact that he had entered pleas of guilty at an early stage. In addition, his time in custody had been and would continue to be particularly onerous. Having attempted suicide whilst on remand in March 2003 he was placed in the management section at Port Phillip Prison where for some eight months he was confined to his cell for 23 hours per day. At the time of sentencing he was still under constant suicide watch and was in a protection unit, although no longer confined to his cell for such lengthy periods during the day. He would serve his sentence, as he had in the past, without visitors and in circumstances of relative isolation.

However, as against the mitigating factors in the case the applicant's record of interview and the reports from both the psychologist, Mr Simmons, and the psychiatrist, Dr Walton, reflected a near total lack of actual remorse for his crimes, or of any empathy for his victim. There were, in addition, a number of other significant circumstances of this case which had to be reflected in the total effective sentence. Among those was the fact that counts 1 and 2 were representative counts. In addition, count 7 was a serious instance of that offence, having regard to the sinister and callous manner in which the respondent sought to use the pornography. There was also the contemptuous and depraved conduct constituted by counts 3 and 4 - being conduct of a different character to that involved in the other counts. Having regard to those considerations, and whilst making due allowance for all mitigatory features and the principle of totality, the total effective sentence arrived at by the judge, in my opinion, does not adequately reflect the seriousness of this case, and is manifestly inadequate.

I have concluded that there ought be a significant increase in the total effective sentence and non-parole period in this case, and that the orders proposed by Callaway, J.A. for re-sentencing are appropriate. In agreeing with the proposed sentences, however, it should not be taken that a sentence of seven years imprisonment with a five year non-parole period, on a plea of guilty, for a man without prior convictions, would be so low as to be outside the range of sentences applicable to other cases of incest. My review of authority suggests to me that that sentence would be at the higher end of the overall sentencing range. It is only the presence of the significant factors to which I have referred that satisfies me that the sentence here was too low to be within the range applicable to the case. Furthermore, in agreeing that the total effective sentence, on re-sentencing, ought be nine years imprisonment, with a non-parole period of seven years, it should not be taken that but for the factor of double jeopardy I would have agreed to impose a sentence which was very significantly greater. As held by Charles, J.A. in R. v. Clarke[28], the factor of double jeopardy requires only that the appellate court impose a sentence which was "somewhat less" than that which the court considered should have been imposed at first instance.

My review of incest cases demonstrates how very wide is the overall range of sentences and, accordingly, how difficult is the task of sentencing judges to determine what is the appropriate sentence for a case bearing the features of the case at hand. Whilst ever mindful of the need to seek consistency in sentencing the judges must grapple with the extraordinary diversity of the conduct and circumstances of offenders and their victims. The judge in this case undertook the sentencing task conscientiously and carefully but in the final analysis I am persuaded that intervention by this Court is necessary.

I agree that the appeal should be allowed and that the sentences proposed by Callaway, J.A should be substituted for those imposed by the learned sentencing judge.

[1] That was necessary because, by reasons of s.6E of the Sentencing Act 1991, the sentences imposed on counts 3 to 6 would be served cumulatively unless otherwise directed.

[2] The latter is the absence of a circumstance of mitigation, but it limits the leniency that can be extended and bears on the respondent's prospects of rehabilitation.

[3] See R. v. SBL [1998] VSCA 144; [1999] 1 V.R. 706, to which the judge was referred and in accordance with which the respondent was sentenced. The difference between representative and rolled-up counts is explained in R. v. Jones [2004] VSCA 68 at [13].

[4] R. v. Leinkauf (unreported, Court of Appeal, 9th October 1996) at 8-9 per Vincent, A.J.A.

[5] This submission, which the judge accepted, was consistent with both a psychiatric report and a psychological report tendered on the plea.

[8] Compare R. v. Gruber [2004] VSCA 100 at [18]- [19].

[9] Counsel was warned that the Court might take that course. It overcomes the difficulty that the pornography appears to have been used only towards the end of the period of offending.

[11] R. v. Duncan [1998] 3 V.R. 208 at 214-216; Siganto v. R. [1998] HCA 74; (1998) 194 C.L.R. 656 at 663 [22]; R. v. RND [2002] VSCA 192 at [17]- [19]. The last case is of particular importance to sentencing judges in Victoria.

[12] R. v. Mantini [1998] 3 V.R. 340 at 343-348.

[13] Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at 531, 536 and 538; R. v. Krasnov and Shlakt (1995) 82 A.Crim.R. 92 at 96-99; R. v. VZ [1998] VSCA 32; (1998) 7 V.R. 693 at [3], [12]-[15], [18] and [22]; R. v. Pope [2000] VSCA 108; (2000) 112 A.Crim.R. 588 at 596 [25]- [29].

[14] Compare the remarks of Winneke, P. in R. v. Wakime [1997] 1 V.R. 242 at 244 and R. v. WEF [1998] 2 V.R. 385 at 387, Batt, J.A. in R. v. VZ at [19] and, most recently, Vincent, J.A. in Director of Public Prosecutions v. DAK [2004] VSCA 175 at [34].

[16] As to the extent of the discount for double jeopardy, see the cases cited by Eames, J.A. in Director of Public Prosecutions v. Cook [2004] VSCA 11; (2004) 141 A.Crim.R. 579 at 589 fn.19. The fact that his Honour was dissenting does not detract from those authorities.

[17] Where there are multiple counts on a presentment, there is much to be said for imposing the sentences on individual counts that an appellate court thinks should have been imposed and discounting only the total effective sentence. See, for example, Director of Public Prosecutions v. Glazner [2001] VSCA 204 at [11].

[18] As Callaway, J.A. noted in R. v. Izzard [2003] VSCA 152; (2003) 7 V.R. 480, at 484-485, [20]-[23], Winneke, P. and Vincent, J.A. agreeing, there is less prospect of sentencing error if the sentencing judge adopts the approach of moderating and cumulating sentences on multiple counts, rather than tailoring the sentence to an appropriate total effective sentence by way of wholly concurrent sentences. See too, R. v. McCorriston [2000] VSCA 200, at [13].

[19] See D.P.P. v. Cook [2004] VSCA 11; (2004) 141 A.Crim.R. 579, at 582 [6] per Chernov, J.A., and the cases cited by his Honour at fns.3-7.

[23] Examples in recent years of cases falling into that category include, R. v. C.V.P. [2002] VSCA 193; D.P.P. v. Burnham [2002] VSCA 93; D.P.P. v. D.J.S. [2003] VSCA 9; R v PBW [2003] VSCA 144; R. v. D.H. [2003] VSCA 220; D.P.P. v GJL [2004] VSCA 35; D.P.P. v. D.C.R. [2004] VSCA 103; R. v. VZ [1998] VSCA 32; (1998) 7 VR 693. Allowance needs to be made for the fact that some recently decided cases involved offences committed before September 1997, when the maximum penalty increased from 20 years to 25 years.

[24] Caution in making such comparisons has been suggested in many cases. See, for example, R. v. Krasnov and Shlakht (1995) 82 A.Crim.R. 92, at 96; R. v. Tu Van Tran (1997) 96 A.Crim.R. 53, at 57; R. v. Giordano [1998] 1 V.R. 544, at 549; R. v. Ware [1997] 1 V.R. 647, at 654 (an incest case where such comparisons were made); R. v. Kasulaitis [1998] 4 V.R. 224, at 231.

[25] Among the range of recent cases reviewed, the following, in addition to those elsewhere mentioned, were of particular assistance: R. v. G.D.R. [1999] VSCA 9; R. v. P.L.K. [1999] VSCA 194; R. v. J.A.C. [2000] VSCA 130; R. v. N.K.M. [2001] VSCA 71; D.P.P. v. G. [2002] VSCA 6; R. v. Adams [2002] VSCA 105; R. v. R.N.D. [2002] VSCA 192; R. v. F.V.K. [2002] VSCA 225; R. v. P.B.W. [2003] VSCA 144; R. v. G.A.M. [2003] VSCA 185; D.P.P. v. G.J.L. [2004] VSCA 35; R. v. Olivar [2004] VSCA 41; R. v. P.J.S. [2004] VSCA 52; R. v. R.T.G. [2004] VSCA 89; D.P.P. v. DAK [2004] VSCA 175.

[26] See R. v. Wakime [1997] 1 V.R. 242, at 244; R. v. Ware [1997] 1 V.R. 647, at 653; R. v. W.E.F. [1998] 2 V.R. 385, at 387; DPP v MJ [2000] VSCA 66, at [17]-[18]; D.P.P. v. G. [2002] VSCA 6, at [9]; R v RTG [2004] VSCA 89, at [29].

[27] See the discussion by Professors Fox and Freiberg, in their work, "Sentencing" 2nd, Ed, at 872-875.

[28] [1996] VICSC 30; [1996] 2 V.R. 520, at 522, Winneke, P. and Hayne, J.A. agreeing. See to my discussion in D.P.P. v. Cook [2004] VSCA 11; (2004) 141 A.Crim.R. 579, at 589, [29]-[30], and see fn.19.

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