E D M v The Queen [2010] VSCA 308

2 I agree with Ross AJA, whose reasons accord in substance with my reasons for joining in the orders made on 11 November 2010.

3 On 11 November 2010 the Court ordered that the appeal be dismissed with reasons to be published at a later date. The following are my reasons.

4 On 15 April 2008 the appellant, EDM, pleaded guilty in the County Court to committing an indecent act with a child under the age of 16 years (count 1); two counts of committing an indecent act with a 16 year old child (counts 2 and 3); one count of producing child pornography (count 4) and one count of possessing Cannabis L (count 5).

5 On 19 December 2008 the appellant was sentenced to two years' imprisonment on count 1; 18 months' imprisonment on count 2; 18 months' imprisonment on count 3 and one year's imprisonment on count 4. A fine of $100 was imposed in respect of count 5. The judge ordered that nine months of the sentence imposed on count 2; 12 months of the sentence imposed on count 3; and six months of the sentence imposed on count 4, were to be served cumulatively on the sentence imposed on count 1.

6 The cumulation orders produced a total effective sentence of four years and three months' imprisonment. The sentencing judge fixed a non-parole period of

two years and nine months' imprisonment. The judge also stated that had the appellant not pleaded guilty he would have imposed a total effective sentence of six and a half years' imprisonment with a non-parole period of four and a half years.

7 Before turning to the grounds of appeal it is convenient to briefly set out the circumstances of the offending.

8 The offending took place over the period from 1 January 2002 and 5 August 2003. The two victims are sisters. Counts 1 to 3 relate to victim 1, who was aged between 15 and 16 years at the time of the offences. The offending in respect of count 4 (producing child pornography) related to both victims. Victim 2 was 13 years of age at the relevant time.

9 The appellant is now aged 63 years. At the time the offending started he was 54 years of age and in a de facto relationship with the victims' mother.

10 In 2002 and 2003 the appellant was living with the victims' mother, the victims and their younger sister in a cabin at a caravan park. The cabin contained a lounge, a bathroom and two bedrooms, one of which was occupied by the three sisters.

11 Count 1 occurred on 14 February 2002. At about 5.30pm on that day the appellant was driving victim 1 to see her then boyfriend in another suburb, she was aged 15 at the time. While driving he took victim 1's hand and placed it on his groin over his clothing. She took her hand away and told the appellant that she did not want to touch him and that he was making her feel uncomfortable. Shortly thereafter the appellant undid his pants, grabbed the victim's hand and placed it on his penis. The appellant then pulled the car off the road, stopped and tried to kiss victim 1. At the completion of the journey he told victim 1 words to the effect that '[S]he owed [him] a hand job'. Count 1 is a representative count. The appellant's conduct of taking victim 1's hand and placing it on his groin in the area of his penis to stimulate him, occurred a number of times when the appellant was travelling alone in his car with victim 1.

12 Counts 2 and 3 occurred one night in January 2003. At about 10.30pm victim 1 was in her bedroom in the cabin. The appellant brought her some toast and a drink. She said she didn't want them and that he should go away and leave her alone. He remained in the room and started touching her on the breast (count 2). He then put his hands down the front of her pants and rubbed his fingers against her vagina (count 3). The conduct of touching victim 1 on the breast and vagina happened on other occasions, both in the bedroom and in the lounge. Hence, counts 2 and 3 were representative counts.

13 Count 4 occurred in January 2003 when the appellant took photographs of victim 1 while she was naked in the shower at the cabin. In January or February that year the appellant also took photographs of victim 2 while she was naked, either in the bedroom or lounge area of the cabin. After the photographs were taken both victims saw the photographs of themselves, naked, on the appellant's computer.

14 It is unnecessary to recount the facts pertaining to count 5 as it is not relevant for present purposes. I now turn to the grounds of appeal.

(i) The learned sentencing judge erred in finding the offending in respect of counts 2 and 3 was aggravated by virtue of there being a breach of trust.

(ii) The orders resulting in partial cumulation in respect of counts 2, 3 and 4 were manifestly excessive.

(iii) The sentencing judge erred by ordering a lesser degree of concurrency in respect of count 3 than was ordered on count 2.

(iv) The sentences imposed on counts 1 to 4 and the total effective sentence are manifestly excessive.

16 In relation to ground 1, the appellant pleaded guilty to two counts of an indecent act with a child under 16 (counts 2 and 3). The relevant offence is set out in s 49(1) of the Crimes Act 1958, in the following terms:

A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 or 17 year old

child to whom he or she is not married and who is under his or her care, supervision or authority.[1]

17 In sentencing the appellant, the sentencing judge stated:

However the offending when viewed as having occurred in the family context raises other aggravating features, which are stressed by [counsel], who appeared on behalf of the Crown. Those features are that the offending amounts to a breach of trust, which occurred over an extended period, 12 to 13 months and was not spontaneous. From what I have said earlier, I accept [counsel's] arguments that these features are aggravating features of the offending.[2]

18 The appellant submitted that a breach of trust cannot amount to an aggravating circumstance in respect of this offence because being in a position of trust is an element of the offence. It was submitted that this finding contributed to the manifestly excessive nature of the sentence.

19 I was not persuaded that there is any substance in this point. The concept of 'care, supervision or authority' within the meaning of s 49(1) does not cover all matters which may constitute a breach of trust.[3] In this case the fact that the victims and the offender were in the same household and family unit added to the gravity of the offending.[4] It is also appropriate to characterise the offending as a breach of trust in respect of the victims' mother, with whom the appellant had a de facto relationship. In these circumstances the sentencing judge's remarks could not be said to be erroneous.

20 In any event I was not persuaded that his Honour's finding as to the breach of trust materially impacted on the exercise of the sentencing discretion. If there were error, it was only in respect of counts 2 and 3. The more serious offence was reflected in count 1 and the sentence imposed in respect of that count constituted the base sentence.

21 It is convenient to deal with appeal grounds 2 and 3 together.

22 In respect of ground 2 the appellant submitted that the cumulation ordered did not reflect moderation and that the sentences on counts 2 and 3 encompassed essentially the same conduct and ought not have attracted such a high level of individual cumulation. As to ground 3, it was submitted that there was no factual basis sufficient to justify the disparity between the cumulation ordered in respect of counts 2 and 3. The challenge to the cumulation orders could also be seen as a particular of the general proposition that the total effective sentence and the non-parole period fixed, were manifestly excessive.

23 It is relevant to note at the outset that at the time of his offending the appellant was already a 'serious sexual offender' within the meaning of s 6B(2) of the Sentencing Act 1991, on the basis of convictions in 1996 for three counts of sexual penetration of a child under 16 years of age. Accordingly the appellant was sentenced as a 'serious sexual offender' in respect of counts 1 to 4. Thus, the protection of the community was the principal sentencing purpose in respect of these counts.[5]

24 It is also relevant to note that the making of orders as to cumulation or concurrency are matters which call for the exercise of a broad judicial discretion. As this Court recently affirmed in R v Hettiarachchi:[6]

There can be no inflexible rules as to how this is done: what is important is that whether or not cumulation is imposed, and to what extent, must reflect the criminality of the offences, subject to due observance of the totality principle.[7]

25 Further, given the terms of s 6E of the Sentencing Act 1991 the scope for applying the totality principle in sentencing serious sexual offenders is more limited than is the case when dealing with other offenders.[8]

26 Section 6E gives effect to a legislative policy that 'serious sexual offenders' are to be treated differently from other offenders. As their Honours McHugh, Gummow and Hayne JJ observe in their joint judgment in R H McL v R:[9]

The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[10]

27 In the circumstances I was not persuaded that the cumulation ordered was manifestly excessive. Cumulation in respect of counts 2, 3 and 4 was warranted as the offending the subject of these counts significantly added to the overall criminality and materially added to the debasement and humiliation of the victim.

28 As to counts 2 and 3, the offending involved the appellant touching different parts of victim 1's body - in a real sense the conduct the subject of count 3 was more serious as it involved the touching of victim 1's vagina and reflected an escalation in the appellant's behaviour. Accordingly, an order for significant cumulation was open to the sentencing judge.

29 The cumulation ordered in respect of count 4 was also reasonably open. The pornographic pictures were viewed by the actual victims[11] and one of the subjects of these images (victim 2) was not the subject of the offending which formed the basis of counts 1, 2 and 3. I was satisfied that this aspect of the offending warranted the order made by the sentencing judge.

30 Turning now to ground 3, the sentencing judge ordered that nine months of the sentence imposed in respect of count 2 be served cumulatively on the base sentence. In respect of count 3, the sentencing judge made a cumulation order as to 12 months. Given that the two counts represented like conduct, on appeal it was said that the sentencing judge erred by ordering greater cumulation in respect of count 3.

31 I was not persuaded that the sentencing judge erred in the manner submitted. It was reasonable to assume that his Honour regarded the offending reflected in count 3 as the more serious.[12] It represented an escalation in the offending and it could reasonably be assumed to have contributed to the impact on victim 1 on the basis that it represented a more significant invasion of the victim's personal bodily integrity. I now turn to the final ground of appeal.

32 Each of the individual sentences, the total effective sentence and non-parole period were challenged on the basis that they were manifestly excessive. I observe at the outset that such complaints are often difficult to sustain. As Maxwell P observed in R v Abbott:[13]

It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender in these circumstances. That is a stringent requirement, difficult to satisfy.[14]

33 In support of the contention that the sentences were manifestly excessive the appellant submitted that there were powerful factors in mitigation which were not reflected in the sentences imposed. Counsel also pointed to the lack of particularity in respect of the repetition of the touching said to be an aggravating feature of counts 2 and 3. In relation to count 4 (production of child pornography) it was submitted that the sentence failed to reflect the serious matters in mitigation, namely, the lack of any commerciality, the absence of any publication or distribution in the usual sense and the low number of images.

34 Turning to the last matter first, I was not persuaded that the sentencing judge failed to have regard to the matters to which the appellant referred. At paragraphs [66] to [67] of his reasons for sentence the judge said:

[Counsel for the appellant] argued that the offending in Count 4 was at the lowest end of the scale for this type of offence. He said this was because there was no commerciality to the offending and the photos were not published on a web site or the internet or such like as one often sees in this type of offending. There were not thousands of images.

Whilst I generally agree with these submissions, when viewed in context the offending is serious and this is reflected in my sentence. The photographs do fall within the definition of 'child pornography' and the circumstances of the taking of them I think was part of an indecent relationship which you were endeavouring to foster, certainly with one but possibly with each of the two young women.

35 As to the other matters put in mitigation, I was satisfied that the sentencing judge took these matters into account, in particular he had regard to the following matters:

(i) that the guilty plea was made at an early stage at ([38] of the sentencing remarks and [41]);

(ii) the appellant suffers from ill health, making any sentence more onerous ([44]-[46]);

(iii) the appellant has a good work history and until the age of 47 had an unblemished life ([57] and [69]);

(iv) the offending was opportunistic ([61]);

(v) the appellant had demonstrated his rehabilitation with respect to sexual offences during the years since the offending - the judge commented that other matters arising during those years were largely irrelevant ([56]);

(vi) there was very significant delay in bringing the matter to court for sentence - between 5½ and 8 years ([70]);

(vii) there was no actual physical harm caused, nor any ongoing harm indicated by way of victim impact statement ([42]); and

(viii) that a disproportionate sentence was neither called for nor intended (at [84]).

36 As to the issue of delay it was submitted that the tenor of the sentencing remarks failed to acknowledge the true significance of the delay in this case. It was also said that the sentence itself did not reflect any significant moderation of punishment due to the significance of the delay. I was satisfied that the judge had sufficient regard to the extent of delay in this case. The judge dealt with the issue of delay at [70] of his sentencing decision, as follows:

In this matter you were not charged until some three years after the complaint. Then there was a contested committal which the Crown concedes was of value and resulted in the plea. The Crown concedes there has been significant delay and that you cannot be blamed for it in any way. In passing sentence I accept that you have suffered significantly because of the delay caused by the unacceptable length of time taken to investigate these matters and prepare a proper brief. You have not been able to move on with your life. I have accordingly reduced the sentences I have imposed because of the delay in prosecuting you.

37 Against these mitigating factors was the fact that these were serious offences carrying substantial maximum penalties. The appellant was sentenced on one count of an indecent act with a child under 16 to two years' imprisonment. The maximum penalty for this offence is 10 years' imprisonment.[15] The appellant was sentenced to 18 months' imprisonment on each of two counts of an indecent act with a child aged 16. The maximum penalty for this offence is five years' imprisonment.[16]

38 Counts 2 and 3 were also put as representative offences. This serves to preclude it being said in mitigation that these were isolated offences and it enabled the offences to be seen in the full circumstantial context. I accept that there was limited particularity with respect to the repetition of the touching in respect of counts 2 and 3 but I was not persuaded that the sentencing judge erred in the manner in which he dealt with this issue.

39 Added to the seriousness of the offending was the fact that the appellant fell to be sentenced as a 'serious sexual offender' with the attendant consequences to which I earlier referred.

40 The sentences imposed could be properly characterised as stern but they were within range, albeit at the high end of the range. In dealing with such appeals it is important to bear in mind that sentencing is an exercise of broad judicial discretion and on appeal this Court is not entitled to simply substitute its opinion for that of the sentencing judge.

41 For the foregoing reasons I was not persuaded that the sentences imposed in this case were manifestly excessive, nor was I persuaded that the sentencing judge fell into error such as to warrant correction on appeal. It followed, I considered, that the appeal should be dismissed.

[3] R v Bradey [2009] VSCA 169.

[4] A point conceded by the appellant's counsel at the plea hearing on 12 December 2008 before Judge Lacava, pp 24-5.

[5] Sentencing Act 1991 s 6D(a).

[6] [2009] VSCA 270.

[7] Ibid [83] (Nettle, Weinberg JJA and Hollingworth AJA).

[8] R H McL v R [2000] HCA 46; (2000) 203 CLR 452, [76] (McHugh, Gummow and Hayne JJ).

[11] See Sentence Transcript on 19 December 2008 before Judge Lacava, para [37].

[12] Transcript of the plea hearing on 12 December 2008, p 36, lines 12-23.

[13] [2007] VSCA 32; (2007) 170 A Crim R 306.

[15] See s 47(1) of the Crimes Act 1958.

[16] See s 49(1) of the Crimes Act 1958.