DPP v Wong [2007] VSCA 26

(a) failed to adequately reflect the gravity of this offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(d) gave too much weight to factors going to mitigation;

(e) gave insufficient weight to the maximum penalty applicable to this offence;

(f) gave insufficient weight to the respondent's breach of trust;

(g) gave insufficient weight to the fact that counts 1, 2 and 3 were rolled-up counts;

(h) gave insufficient weight to the fact that the respondent was sentenced as a serious sexual offender in respect of counts 3 and 4;

(i) gave insufficient weight to the respondent's risk of re-offending;

(j) gave insufficient weight to the age of the victim (aged five at the time of the offending) and the 17-year age difference between the victim and the respondent (aged 22 at the time of the offending); and

(k) gave insufficient weight to the effect of the offending upon the victim.

4 The respondent was born on 11 June 1980 and was 22 years of age at the time of the commission of the offences. The victim, a female child (to whom I will refer as "KEB") was born on 21 January 1997 and was, at the time of the offences, aged five years. The father of KEB (to whom I will refer as "KM") met the respondent through a religious organisation with which both were associated in 2000. They became friendly and, as a consequence, on occasions, KM and his then wife would arrange for the respondent to baby-sit their two children at their home.

5 On 24 April 2005, the complainant disclosed to her father that she had a secret with the respondent, but that she could not tell him about it. She later revealed to him that she had been abused.

6 Two days later, the respondent met with KM and other members of their church. During this meeting, the respondent in general terms admitted that he had "sexually abused" KEB. He denied any penetration of the child, but admitted to touching the little girl.

7 On the following day, KM took the respondent to the Boroondara Police Station to be interviewed by police. In the course of the interview which ensued, the respondent admitted that he had acted as baby-sitter for KM's children, and that on three to four occasions he had had sexual contact with the victim in the form of touching, fondling and rubbing.

8 The offending took place over an approximate six-week period between, 1 December 2002 and 18 December 2002.

The Counts

9 Each of counts 1 to 3 is a rolled-up count. That means that it encompasses the commission of more than one criminal act. Such counts, which would otherwise be unacceptable as duplicitous, are laid in some cases where pleas of guilty are entered. Unlike representative counts, they enable the sentencing judge to address, within the parameters of a single count, all of the criminal conduct encompassed by it in the determination of an appropriate sentence.

10 This offence was committed in the lounge room of the victim's home and involved the rubbing of the outside of the child's vagina. It commenced when she was undressed after having had a bath. He repeated this conduct when she went to bed, continuing to rub her vagina slowly until she fell asleep. The respondent stated, with respect to this incident, that he was sexually excited at the time and that he realised that what he was doing was wrong.

11 About a week later, he again attended at the home of KM to baby-sit. The respondent asked the child to come to the bathroom, where he removed her pants and she sat on his lap. He then rubbed her vagina. The respondent asked her whether she would be interested in seeing his body and instructed her to help him undress. The respondent then directed the child to hold his penis and showed her how to masturbate it. This touching went on for approximately 15 minutes.

12 Afterwards, they watched television and he put both children to bed. When she was in bed, the respondent rubbed KEB's vagina until she fell asleep.

13 On this occasion the respondent was once again baby-sitting the two children when he asked KEB whether she would consent to him touching her. He later told the police that he appreciated that the child was reluctant, but said that she complied. He then took her to her bedroom and closed the door. After removing her underpants, he commenced once more to rub her vagina. He directed the child to hold his penis, which she did, for about five to six minutes. He told the police that he was well aware that she did not enjoy these activities.

14 The conduct encompassed by this count, which lasted for about two to three minutes, consisted of similar rubbing of the child's vagina.

The Police Interview

15 When interviewed by the police, the respondent stated that, after the activities referred to in count 2, he had a conversation with the little girl in which he told her that what they did was a secret and that, if her parents found out, they would be angry with him. Because of her age, the respondent had to explain to her what a secret was, saying -

"A secret is something that you keep to each other in your heart and you do not mention anything to anybody except to each other."

The fact that he had to do this is, in my view, indicative of his obvious appreciation of the level of immaturity of the child.

16 The respondent said that the touching of the child in which he engaged was motivated initially by curiosity and then by the sexual gratification he derived from it. He accepted that he was well aware at all stages that what he was doing was wrong, and claimed that he went to the police station eventually because he felt that "this must end". I would add, in respect of this claim, that at the time of his attendance at the station the respondent was not only accompanied by the child's father, but he went there on the day following the meeting with the church members earlier mentioned.

17 There is no need to recite the principles upon which this Court must proceed when considering a Crown appeal against sentence. They are well known, regularly applied and are set out in such cases as R v Clarke,[2] DPP v Johnson,[3] DPP v Bulfin[4] and DPP v Bright.[5]

18 In the present case, the contention has been advanced by the Director that the individual sentences, the total effective sentence and the non-parole period fixed by the sentencing judge are each so clearly and egregiously inadequate in the circumstances, notwithstanding the presence of factors militating in favour of mitigation of penalty, that error in the application of sentencing principle can be inferred and the intervention of this Court required.

19 Among the matters to which our attention has been directed in this context were: the age of the victim; the position of trust in which the respondent was placed; the fact that the conduct was repeated on four distinctly separate occasions over a period of six weeks; the consideration that counts 1, 2 and 3 were rolled-up counts with each involving therefore more than one criminal act; the motivation for the commission of the offences which was primarily to secure sexual gratification at the expense of a vulnerable child; the understanding of the respondent throughout that what he was doing was wrong; that he endeavoured, and for some time successfully, to induce the child to conceal what had happened; the effect upon the victim of the respondent's offending; and the seriousness with which such offences should be viewed by a sentencing judge, by reference to the decisions of this Court and the maximum penalty that can be imposed.

20 It was further submitted that it is apparent from the sentences themselves that inadequate regard must have been had by the sentencing judge to the importance of both general and specific deterrence as sentencing considerations in this case.

21 Dr Lyon, who appeared for the respondent, pointed out in answer to the Crown assertions that the sentencing judge, who has very considerable experience in this area, can be seen from his sentencing remarks to have had regard to all of the relevant circumstances and principles, and that no error has been identified in his approach to any of them. Taken at its highest, the claim of the Director, he submitted, is one of manifest inadequacy. However, there were a number of mitigatory features present which had to be and were taken into account by the judge, and, once this was done, the sentences could be seen to have been available in the proper exercise of sentencing discretion. Counsel adverted to the respondent's mental state; the absence of any prior criminal history; the fact that the respondent had approached the police and made full and frank admissions which went beyond what the child could herself recall; and his plea of guilty - a plea which he emphasised was made in circumstances in which the statements that he made constituted almost the entirety of the case against him. Were it not for those frank admissions, Dr Lyon continued, there was a distinct possibility that no case could ever have been mounted against his client. Finally, pointed out in his written submissions which were provided to this Court, and which I would commend, as they were very carefully constructed and appropriate in the circumstances, that the respondent had made genuine expressions of remorse.

22 It is apparent from his Honour's carefully constructed remarks that the sentencing judge directed attention to all of the relevant sentencing principles and factual circumstances bearing on the offences and offender concerned.

23 Among those matters was evidence that the respondent had been diagnosed as suffering from a paraphilia with paedophilic arousal patterns. Dr Michelle Pathè, a consultant psychiatrist to the Psychosexual Treatment/Problem Behaviour Programme conducted by the Victoria Institute of Forensic Mental Health, expressed the opinion, in a report provided to the sentencing judge, that -

" ... the likelihood of relapse is high if the underlying paraphilia remains unaddressed. The optimal treatment for [the respondent's] disorder is a combination of cognitive, behavioural, biological and relapse prevention approaches. His current rejection of conventional therapies is naïve and ill-advised."

" ... [The respondent] reported some improvement in control over his deviant thoughts but he was difficult to engage and not overly forthcoming, and ultimately poorly compliant with treatment recommendations."

His Honour was, unsurprisingly, concerned to address this aspect in accordance with principle and referred to a number of cases that have come before the court. It has not been suggested that he fell into error in this respect. His Honour concluded:

"Paedophilic sexual offending causes considerable anxiety and concern in the community. General deterrence is an important influence on the sentence you receive, as is deterrence for you. The expert opinions before me indicate that you represent a risk of re-offending. I accept that evidence. I must take into account protection of the community from you, and the risk of your re-offending. The sentence must also demonstrate the community's strong disapproval of offending of this type."[6]

24 In this passage, his Honour echoes views that have been expressed in many decisions of this Court over a number of years, but perhaps never more powerfully than by Marks J in R v Sposito,[7] now almost fourteen years ago:

"A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest [which was the matter before the court at that time] is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim. An even more alarming revelation is the frequent failure in these cases of support for the victim from other members of the family."

Although these remarks were directed to the crime of incest, and not all appropriate in the context of this particular case, as a general approach to such offences they are clearly apposite to other forms of the sexual abuse of children and other relationships of trust affecting them.

25 The judge in the present case was conscious of the seriousness of the respondent's conduct, both in terms of the offences involved and his level of personal culpability for their commission, and he directed attention to the significance of general and specific deterrence in the determination of appropriate sentences in this case. However, and notwithstanding the matters to be taken into account in mitigation of penalty, the dispositions at which he arrived, in my opinion, simply do not reflect that adequate weight was attributed to these considerations. The sentences that were handed down are so far below those which should have been imposed in the proper exercise of sentencing discretion that an error of principle can be inferred.

26 I would allow this appeal and set aside the sentences imposed in the court below. In arriving at this conclusion I have been mindful of the need to give full effect to the principle of double jeopardy in such circumstances.

27 I would re-sentence the respondent as follows:

1 On count 1 - two years' imprisonment;

On count 2 - two years' imprisonment;

On count 3 - two years' imprisonment; and

On count 4 - two years' imprisonment.

I would direct that four months of the sentence imposed on count 2 be served

cumulatively upon the sentence imposed on count 1, and that one year and eight months of the sentence imposed on each of counts 3 and 4 be served concurrently with the sentence imposed on count 1. That would create, in effect, orders for cumulation of four months on each of counts 2, 3 and 4 and a total effective sentence therefore of three years' imprisonment, in respect of which I would fix a non-parole period of two years.

29 For the reasons stated by the learned presiding judge, I agree that this Director's appeal should be allowed and I also agree with the orders proposed by his Honour.

30 The orders of the Court are:

The appeal is allowed.

The sentence imposed in the court below is quashed and in lieu thereof the respondent is sentenced as follows:

On count 1 - two years' imprisonment;

On count 2 - two years' imprisonment;

On count 3 - two years' imprisonment; and

On count 4 - two years' imprisonment.

The Court orders that four months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1 and one year and eight months of the sentence imposed on each of counts 3 and 4 be served concurrently with the sentence imposed on count 1.

This would create orders for cumulation of four months on each of counts 2, 3

and 4 and a total effective sentence of three years' imprisonment, in respect of which

the Court fixes a non-parole period of two years.

It is declared that the period of 149 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration has been made and its details.

Pursuant to s 6F of the Sentencing Act 1991, the respondent is sentenced as a serious sexual offender in respect of counts 3 and 4 and that the respondent is a class 2 registrable offender and must comply with the reporting obligations under the Sexual Offenders Registration Act 2004 for the remainder of his life.

The Court otherwise confirms the order made pursuant to s 464ZF(2) of the Crimes Act 1958.

The Court grants to the respondent an indemnity certificate pursuant to s15 of the Appeal Costs Act 1998.

[1] The maximum penalty for this offence is 10 years' imprisonment.

[2] [1996] VICSC 30; [1996] 2 VR 520.

[3] [2004] VSCA 150; (2004) 10 VR 85.

[4] [1998] 4 VR 114.

[5] [2006] VSCA 147; (2007) 163 A Crim R 538.

[6] Sentence T55-56.

[7] Unreported, 8 June 1993 at 4-5.