DPP v WJW [2000] VSCA 170

Crimes Act 1958, ss.567A(5), 574.

2. The facts of this case are unusual in a field in which the remarkable has become commonplace. For something like a year and a half a man of about 57 - a "family friend" of the victim - maintained a sexual relationship with a girl, aged 12 and then 13, and with a mental age of 9 or 10. She often stayed overnight at his home, mainly at weekends, where he had a computer which she used for her school work. How many times he had sexual intercourse with her - in the ordinary sense of those words - will never be known. He admitted to about a dozen occasions, but later in his recorded interview said that there had been sexual encounters more than 20 times, about three-quarters of them ending in intercourse.

5. The facts thus far narrated might not be described as unusual in this field with which judges are so much concerned nowadays, but further facts make the case notable. The first of these is the offender's own attitude to his offending (an attitude which has not changed since the offence came to light): he looked upon himself as living in a de facto relationship with the young girl - a "husband and wife" arrangement - and said that she was an excellent friend and that he was in love with her and she with him. He wanted them to live together on a full-time basis as if they were man and wife. Even at the time of sentence he felt hurt that he was not able to see the girl and believed that she wanted to see him.

8. The next thing helping to make this case unusual is that he impregnated the girl: indeed, this is what led to the discovery of the relationship. In my experience pregnancy in cases of serious sexual abuse of children who have reached puberty, while by no means unknown, is not as common as one might expect. The victim here had an operation to terminate the pregnancy, which was later found to have been unsuccessful. The next feature of the case tending to make it stand out is that the girl gave birth to the offender's child: the birth occurred after the passing of sentence and the sentencing judge was not aware that the victim was, despite the operation, still pregnant.

11. The thing about the case which the Crown says makes it truly remarkable, however, is the sentence passed: for maintaining a sexual relationship for 17 months with a child under the age of 16 (an offence carrying a maximum sentence of 25 years' imprisonment) the judge passed a sentence of only three years' imprisonment, two years of which she suspended for three years. This was imposed on 25 February last. It has led to this appeal by the Director of Public Prosecutions, the sole ground of which is that the sentence is manifestly inadequate.

14. I entertain no doubt that, on the application of the settled principles on which this Court acts on Crown appeals, this sentence cannot be allowed to stand.

17. The respondent had become friendly with the girl's father when they worked together. The respondent was introduced to the family, which was under some financial pressure, the father having been recently retrenched. They were also experiencing difficulties because the girl was attending a mainstream school and having problems with a number of subjects because of her intellectual disability. This led to her going to the respondent's house, where he helped her with her school work. The family had no computer, but the respondent had one at his house, which she used. The girl started to stay overnight at his home. Often he took her to school and collected her in the afternoon. The sexual relationship did not develop until some time after the girl began visiting him.

20. The respondent was 58 when he was sentenced. He had been a useful member of the community and had reached the age of 56, when he began committing this offence, without sustaining any conviction. He had co-operated with the police and pleaded guilty at the committal, and so the complainant and others had been spared the experience of giving evidence and the stress generally of taking part in legal proceedings, and the community had been spared a trial. It is, on the other hand, to be borne in mind that the pregnancy of the girl, especially viewed against the background of his undoubted social relationship with her, made a conviction of some sort of serious offence highly likely. There was material in the depositions showing that it was at least 800 times more likely that the defendant was responsible for the pregnancy than a man chosen at random from the Caucasian population of Victoria. Moreover, it cannot be said in favour of the respondent that he had by his plea demonstrated remorse. Although he was by the time of his interview aware of the strong probability of pregnancy, there is nowhere to be found in what he said to the police any expression of regret for having made the girl pregnant and no expression of regret for having maintained a sexual relationship with her. That interview, and what he was three months later to tell the psychologist engaged by his solicitor, Mr Joblin, show an entirely unrealistic attitude - assuming it to be genuine - towards the relationship.

23. The respondent always knew how old the girl was. Moreover, she was about three years behind in intellectual development because she had been born 11 weeks premature. The respondent said to the psychologist that the girl was "not at all slow" and described her to the police as mature. He claimed to have discussed with her whether they would have sexual intercourse and asserted that she had said that she was not ready for it yet and would let him know when she was ready. At a later stage, he said, she told him that she was ready. He said, speaking quite generally, that he and she thought along the same lines and had the same kind of interests: they were compatible. The respondent told the police that during the relationship he had given consideration to having a vasectomy. He claimed to the psychiatrist that, when the question of a sexual relationship was first raised with the girl, he told her he would use condoms, but she said that she did not want him to.

26. There is no question but that the respondent knew he was committing a serious crime. He tried to persuade the girl not to tell her mother about their relationship by saying he would go to gaol. He told the police that if he had to go to gaol he would wait for her if she wanted him to. The girl's unchallenged account was that he tried to persuade her not to tell her mother by threatening to shoot himself and his dog.

29. This is not one of those cases where a middle-aged man, who has never been able to establish a relationship with a woman of his own age and who has always been a "loner", living the life of a recluse, is said by a psychologist or psychiatrist to be able to form a relationship only with a child. The psychologist describes him as "somewhat socially inadequate". He has not done any formal testing, and describes the respondent as a man of reasonable intellect. This view is supported by his performance during the interview with the police and by his employment record. As regards his intelligence it is not without significance that he owned and used a computer. He left school at the age of 16, having had no significant problems there. His employment history need not be mentioned in detail. He became a PMG technician and attended the Royal Melbourne Institute of Technology and obtained the certificate necessary for a cinema projectionist. He worked as one and this seems to have been his main occupation. For a time he worked as an engineer at a radio station. He has had no problems with alcohol. At the time of his interview he did have friends, although not many. He had, however, been married and the marriage had lasted 15 years. There were two children of the marriage, one of whom had died when he was in his early 20's; he had maintained contact with that son until his death. He had also kept in touch with his daughter until he was charged. He had formed a friendly relationship with the complainant's parents and evidently had a good deal to do with them.

32. Mr Joblin also said of the relationship giving rise to this offence:

"In my opinion this man is socially inadequate. In many ways he is not accepting his chronological age but is endeavouring to present, behave and demonstrate attitudes and values consistent with a person much younger. Mr W. believed that this would make him more attractive socially and perhaps enable him more heterosexual success" (my emphasis).

36. Mr Joblin continued that, accepting the respondent's denials of being attracted to young girls generally, he would appear not to have a deviant sexual drive centred on young girls, although it was "very difficult to determine this categorically". After discussing the very strong feelings which the respondent said he still had for the girl, Mr Joblin observed, "This does not necessarily mean that he is a danger to her" (my emphasis). Later Mr Joblin said, "While he may still have strong feelings for her, this does not mean he will cause her further difficulties although to a degree his feelings for her still remain an issue" (my emphasis).

39. A sentence of three years is far too lenient to reflect the nature and gravity of this offence and the maximum penalty prescribed, and the same must be said of the suspension, which had the result that the respondent would automatically be released after only one year. The maximum penalty was imprisonment for 25 years. The case was a very bad one. The child was only 12 or 13 - he was 56 or 57; she was the intellectual equivalent of a nine or ten year old; she was entrusted to him by her parents to help her overcome her mental disability; both she and they trusted him and that trust was grievously abused over a long period; he made her pregnant and she had an operation to terminate the pregnancy. He could not claim the benefit of the slightest remorse: if he was to be believed, he seemed to regard the whole disgraceful affair as natural and proper. This bore on the danger of his reoffending. His former good character and early plea of guilty told in his favour. But the sentence passed was altogether inadequate to punish, to deter and to denounce.

42. Something has gone seriously wrong with the sentencing process: its outcome is seen to be far too lenient. Specific error is not alleged, but, error being manifest from the sentence itself, recourse to the judge's reasons for sentence may enable a diagnosis to be made. Without setting out passages in those reasons, I simply say that I gain the impression that her Honour mistakenly considered that the respondent's professions of love for the girl meant that his offence was much less serious and greatly mitigated, if they did not indeed efface, the breach of trust.

45. The girl first complained to her mother on 4 November 1999. On that and the following day VATE tapes were made. On 8 November the girl was examined by a paediatrician, who made arrangements for her to have blood tests for pregnancy, venereal disease, hepatitis B and C and HIV antibody. Next day she was found to be pregnant. On 12 November she was admitted to hospital and an operation was performed under general anaesthetic with a view to terminating the pregnancy. She was then eight or nine weeks pregnant and the operation was thought to have been successful. But it was not. We were told by counsel for the Director, Mr Coghlan, without formal proof and without objection, that in due course a healthy female child was born of the complainant and that the child was now being cared for by the complainant and her parents. Both Mr Coghlan and the respondent's counsel, Mr Morrissey, submitted that, while regard could not be had to the birth of the child in considering whether the sentence was manifestly inadequate, the Court could have regard to the birth if it determined that the sentence should be set aside as manifestly inadequate and so had to re-sentence. (As regards manifest inadequacy, Mr Coghlan did not contend that the principle illustrated by R. v. Eliasen[1] could be applied against the offender so as to allow the birth to be viewed as an event occurring after sentence which showed the true significance of the impregnation, and so I say nothing about this point.) It was accepted by both counsel that in re-sentencing after a successful appeal, whether by an offender or the Director, the Court may have regard to circumstances existing at the time of re-sentencing although those circumstances did not exist at the time of the original sentence. This seems to be accepted as regards appeals by convicted persons: so the Court of Criminal Appeal has said that it "always takes into account the circumstances ... which subsist at the time of re-sentencing": R. v. Dimozantos[2]. Fox and Freiberg[3] says this of Director's Appeals_:_

_"_If a Crown appeal against sentence is successful, the appellate court is re-sentencing the respondent in the light of all the facts and circumstances existing at the time of re-sentencing. This may include events occurring after the original sentencing that cast light upon the offender's character or circumstances. But, even allowing for changed circumstances that might justify a more severe sentence, appellate courts accept that they should give recognition to the element of double jeopardy ...".

49. Dimozantos was concerned with changes to the statute law, but what was said in it bears also on changes in other circumstances. It is arguable that what the High Court said in Dimozantos v. R. [No. 2][4], and in particular the reference there made to the judgment of Mason, C.J. and McHugh, J. in Radenkovic v. R.[5], would support a principle of sentencing that a change in circumstances after the original sentence cannot be used to the offender's detriment in re-sentencing, although any such suggested principle would have to accommodate cases of "mixed" changed circumstances, some favourable and some unfavourable to the offender.

52. Section 574 of the Crimes Act 1958, a section dealing mainly with the supplemental powers of the Court of Appeal with regard to evidence, concludes:

"Provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial."

This proviso is to be found in the progenitor in this State of s.574, that is, s.9 of the Criminal Appeal Act 1914, and in the corresponding English section, s.9 of the Criminal Appeal Act 1907. Section 574 was not discussed before us, it being, as I have said, common ground that we may have regard to the birth of the child if called upon to re-sentence. Section 567A(5) makes the provisions of s.574 applicable in some sense to Director's appeals; I do not attempt to summarise s.567A(5) lest my summary be regarded as disclosing some view on the precise effect of that sub-section and in particular on the question what it is that the phrase "with respect to procedure" qualifies.

57. Section 574 itself is not without difficulty. Paragraphs (b) and (c) refer to "the trial", as does the proviso itself. Where there is a plea of guilty, there is no "trial" in the ordinary sense. But s.574 has been treated as applicable notwithstanding that the plea was guilty: R. v. Bishop[6]. A further question might arise as to whether the proviso, assuming it to be applicable where there has been no "trial" in the ordinary sense, has only the effect of preventing regard being had to evidence that was not given on the plea when the Court is considering whether the sentence below should be set aside and does not prevent such regard being had when the Court comes to re-exercise the sentencing discretion.

60. In the present case, as earlier mentioned, the birth of the child was established not by affidavit but by the making of the fact common ground, proof being dispensed with.

63. It would be wrong for us to reach any decision, or even express any view, on the effect of s.574 or s.567A(5), or on whether there is any common law principle requiring changed circumstances that are adverse to the offender to be ignored in re-sentencing, without full argument. I do not think we should reconvene for the purpose of inviting argument. In all the circumstances we may and should proceed on the assumption, in favour of the respondent (without expressing any view on the correctness of that assumption) that we are not at liberty to take into account the birth of a child to the complainant when we re-exercise the sentencing discretion. On that assumption, and after having regard to what is often called "double jeopardy", I would propose that the substituted sentence be one of six years' imprisonment with a non-parole period of four years.

68. Having had the benefit of reading the judgment of Brooking, J.A. in draft form, I agree entirely in his reasons and in the proposed substituted sentence.

73. In my view, for the reasons given by Brooking, J.A., the application should be disposed of as proposed by his Honour.

[1] (1991) 53 A.Crim.R. 391.

[2] Unreported, 17 December 1992, per Phillips, C.J. Crockett and Fullagar, JJ. at 5.

[4] [1993] HCA 52; (1993) 178 C.L.R. 122 at 132.

[5] [1990] HCA 54; (1990) 170 C.L.R. 623 at 632.

[6] [1998] 1 V.R. 531 especially at 536 per Ormiston, J.A.