Court of Appeal (Vic)|2010-07-01|Before: MAXWELL P AND WEINBERG JA

G E M v The Queen [2010] VSCA 168 (1 July 2010)

R v [GEM] (Unreported, County Court of Victoria, Judge Jenkins, 13 June 2008)

1 The appellant, GEM, pleaded guilty in the County Court at Melbourne to two counts of indecent assault upon a girl below the age of 16 (counts 1 and 2), and three counts of incest (counts 3, 4 and 5). The victim of these offences was his step-daughter, SH, who was aged, at the time of the offences (between 1977 and 1980), between 12 and 15. The maximum penalty for indecent assault at the relevant time was five years' imprisonment, and for incest, 20 years.

2 Each of the counts to which the appellant pleaded guilty was designated as 'representative'. The sentences imposed were as follows:

The appellant was declared a serious sexual offender in respect of counts 3, 4 and 5.

3 In 1976, the appellant married the complainant's mother. The complainant, who was born in 1965, was 11 years old at the time.

4 The conduct giving rise to count 1 occurred between 11 July 1977 and 31 July 1977. According to the complainant, the appellant repeatedly touched her breast outside her clothing whilst purporting to wrestle with her. This conduct was said to have taken place at least two to three times a week during that period.

5 With regard to count 2, the evidence was that, in the period between 11 July 1977 and 31 December 1977, the appellant regularly entered the complainant's bedroom after she had gone to bed. He would talk to her, then pull the blankets back, unbutton her nightie and fondle her breasts. He would then pull down her underwear and fondle her vagina with his fingers. He would then penetrate her vagina with his finger. The complainant said that this conduct occurred at least two to three times a week during that period.

6 Count 3 concerned an 11 month period between 1 February 1978 and 31 December 1978. The appellant continued to enter the complainant's bedroom after she had gone to bed. By this time, the offending had escalated, and the appellant regularly had sexual intercourse with the complainant.

7 Count 4 involved essentially the same conduct, but during the period 1 January 1979 and 31 December 1979.

8 Count 5 also involved the same conduct, during the first five months of 1980. At this stage, the complainant was aged 15. She became pregnant to the appellant. This pregnancy was ultimately terminated.

9 No complaint was made to the police until 2005. Even then, the appellant was not formally charged until 23 August 2007.

10 By Notice of Appeal filed on 13 June 2008, the appellant relies upon the following grounds of appeal:

1. The sentencing process miscarried due to apprehended bias; and in particular, as a result of the sentencing judge, through her associate, making private inquiries of the Office of Public Prosecutions concerning plea negotiations and the drafting of the presentment.

2. In fixing sentence, the sentencing judge erred in failing to give sufficient weight to delay; and in particular -

(a) the delay between the offending conduct and sentence;

(b) the delay in the investigation and prosecution of the relevant offences.

3. In fixing sentence, the sentencing judge erred in failing to give sufficient weight to the evidence of the sexual abuse of the Appellant when a youth.

(a) giving too much weight to the perceived need for specific deterrence;

(b) finding that there was a risk of the Appellant re-offending.

5A. The sentencing judge erred in taking into account what purported to be a victim impact statement.

5B. The sentencing judge erred in finding that the Appellant's offending had the most detrimental effect upon the complainant of the different abuse which she experienced.

have produced a sentence which is manifestly excessive.

11 It may be useful to consider, as a preliminary point, precisely how an allegation of apprehended bias on the part of a sentencing judge gives rise to a ground of appeal in this Court. The traditional view was that a judge's refusal to

disqualify himself or herself, on the ground of bias, did not give rise to a decision or judgment capable of appeal.[1]

12 In R v Watson; Ex Parte Armstrong,[2] the High Court made it plain that no appeal, as such, lay against a judge's refusal to recuse himself after it was submitted that he was disqualified. Of course, an appeal could have been brought if the judge had finally given judgment in the matter. However, it would be obviously inconvenient to allow the judge to complete the proceedings in circumstances where he was disqualified from hearing them. For that reason, prerogative relief by way of prohibition was appropriate.[3]

13 Appeals within the framework of the court system are generally restricted to appeals from 'orders' or 'judgments'. A refusal by a judge to recuse himself does not amount to an order or judgment.[4] If, however, the judge proceeds to decide the case, the refusal to recuse may be advanced as a ground of appeal against the judgment given or order made.[5] A judgment cannot stand if it is not the outcome of a fair hearing before a court which is independent and impartial, and which appears to be impartial.[6]

14 In the present case, the judge made such an order when she sentenced the appellant. Section 568(4) of the Crimes Act 1958 (Vic)[7] confers upon this Court a statutory jurisdiction to entertain appeals against sentence. The subsection provides that, on an appeal against sentence, this Court shall, if it thinks that a 'different sentence' should have been passed, or a 'different order' made, quash the sentence passed at trial, and re-sentence the appellant.

15 By long-established practice, however, this Court does not 'consider at once' what the individual members of the appeal bench consider to be the appropriate sentence. On the contrary, as Lowe and Gavan Duffy JJ explained in R v Taylor & O'Meally,[8] an appeal court:

will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously - not merely arguably - too severe or too lenient, it will not interfere. To do this is substantially to apply the principles, as now settled by authority, which are proper to a review of the exercise of a judge's discretion ...[9]

16 Apprehended bias is a recognised ground of review of an exercise of discretion, whether judicial or administrative. It can, accordingly, constitute a ground of appeal against sentence, just as a breach of the other rule of natural justice - the hearing rule - is often relied on in sentence appeals.

17 Turning then to the ground itself, the plea hearing was conducted on 5 June 2008. The appellant was then remanded in custody, to be sentenced on 13 June 2008. Before her Honour commenced her sentencing remarks, senior counsel for the appellant (who appeared both on the plea and on the appeal to this Court) filed an outline of submissions in support of a foreshadowed application that the sentencing judge should disqualify herself on the ground of apprehended bias.

18 The principal ground of the application was that the judge, through her associate, had made enquiries of a solicitor from the Office of Public Prosecutions ('OPP'), who was acting for the Crown in the proceeding. Two other matters were also relied on, to which we will refer separately.[10] In argument on the appeal, senior counsel for the appellant explained that it was the cumulative effect of the three matters, rather than the individual effect of any one, which was said to have created the reasonable apprehension of bias.

19 What apparently alerted the defence to the contact which the judge's associate had had with the OPP was a message from the associate recorded on junior counsel for the appellant's voicemail. Senior counsel for the appellant read to the judge the following part of the voicemail message:

In terms of getting clarification about count 1, the fact that there was part of a plea negotiation, that it was to start on 11 July 1977.

The remainder of the message was not read out to the sentencing judge, nor to this Court.

20 On the basis of the voicemail message alone, the defence submitted to her Honour that it was inappropriate for her to have authorised her associate to make private enquiries of the OPP 'relating to the plea negotiations and the drafting of the presentment'. When senior counsel informed her Honour that the associate's voicemail message had been preserved, the judge responded, somewhat tersely, in the following terms:

Well I am glad you did that, because your representation that enquiry was made about plea negotiations is complete and utter rubbish. There was never any such enquiry. Let me tell you what the enquiry was and it was done at my direction. An enquiry was made of the Office of Public Prosecutions to clarify the dates that appeared in count 5 in particular but also in count 1. Having read the depositions I was concerned that there might have been a misquoting of the dates. That was the enquiry ... to confirm the dates that appeared in both of those counts. That was the beginning and end of the enquiry.

The response which came back, either in that conversation or in the next conversation because this all happened very quickly, was to confirm that the date in relation to count 5, the beginning and end dates, because I was concerned whether it was 1980 or 1981 - was correct and that was the date that was clarified in a subsequent statement of the complainant and in relation to count 1 there was confirmation that the commencement date there was also correct pursuant to discussions there had been between the parties. That is the beginning and end of it. That was conveyed by telephone message because there was no recipient to the call to [junior counsel for the defence.] No call was received back. It was a simple enquiry that was made and that was the end of it.

Her Honour shortly thereafter repeated that the enquiry made of the OPP:

was not about any negotiations, there was no such enquiry. What was passed on in that taped conversation ... was the result of that enquiry, so it was conveyed in that message what information had been received from the Office of Public Prosecutions. But an enquiry was never made of the Office of Public Prosecutions in relation to any plea negotiations.

21 Senior counsel for the appellant submitted to her Honour that the 'vice of it is that it happened in the way that it did.' His submission emphasised:

the undesirability of these enquiries being made in the way that they were. It is basic, it is a principle of procedural fairness that anything like this should happen in open Court. Why your Honour chose to adopt the mode that you did rather than inviting submissions from the parties, I don't know. That is a matter for your Honour, but the fact that it has happened, with respect, raises a reasonable apprehension of bias and your Honour should disqualify yourself.

22 Counsel for the Crown, who had not been present at the earlier plea hearing on 5 June 2008, opposed the disqualification application. He produced, and the Court admitted as an exhibit, a file note made by the OPP solicitor of the enquiry made by the judge's associate. It is convenient to set out in full the text of that file note, which was dated 10 June 2008. It reads as follows:

Judge Jenkins' Associate ... called. The judge had some queries about the dates on the presentment. She wanted to hear the Crown's explanation and then she will phone Def and hear their explanation ... The queries are:

(1) Why the last date is 1980 rather than 1981?

I explained to her that [the complainant] made a further statement on page 31 depositions/brief clarifying that she became pregnant in 1980 rather than 1981 as in her first statement.

(2) Why is first date 1977 rather than 1976?

I explained that this was part of plea negotiations.

[The associate] confirmed that she would also speak to Def about these matters.

Matter listed for sentence on Friday.

23 Having read the file note to the Court, counsel for the Crown submitted that the contents thereof seemed:

to confirm that your Honour did not ring to make enquiries about plea negotiations but merely to seek advice in relation to the dates.

This did not give rise to a reasonable apprehension of bias, it was submitted, because:

it was an enquiry about dates and is not something that ... couldn't be done in that way.

24 In reply, senior counsel for the appellant submitted that the file note confirmed:

that apparently an explanation was sought about the drafting of the presentment and the question of the subject of negotiations was ventilated in the course of that conversation. Now that should not have happened, we have no hesitation in saying that, we ask your Honour to disqualify yourself.

25 The judge refused the disqualification application. She described the defence submission as based on 'a gross misrepresentation'. Her Honour stated that the file note made by the OPP solicitor was 'entirely accurate', and accorded with what she had been told by her associate.

26 The contact between her Honour's associate and the OPP solicitor did not, in our view, create (or contribute to) a reasonable apprehension of bias. The file note prepared, evidently contemporaneously, by the solicitor made clear that what the judge's associate had sought was a clarification of the dates set out in the presentment, and nothing more. The reason why that clarification was sought was because there was an apparent discrepancy between those dates, and the dates of the offending as described in the depositions.

27 No doubt it would have been preferable to seek an explanation for that discrepancy in other ways. The matter could have been raised in open court, immediately before proceeding to sentencing. If it were thought necessary to elicit an explanation at an earlier stage, an email could have been sent to both parties, simultaneously, inviting them to discuss the matter, and consider an appropriate response. The path chosen by her Honour, though no doubt well intentioned, had the potential to produce precisely the kind of response that it did, namely, that the discrepancy in relation to count 1 was the result of plea negotiations.

28 With hindsight, one can appreciate the dangers of asking too many questions about why the presentment was framed as it was. That is particularly so in circumstances where the dates in the Crown Summary accorded precisely with those in the presentment itself, such as in the present case. It is by no means uncommon for there to be a negotiated plea in cases of multiple offending, whereby the dates within a presentment are narrowed. That should ordinarily be a matter of no concern to a sentencing judge.

29 There was, and is, nothing in the available material to support the defence contention, a least implicitly made, that her Honour had enquired about the content of plea negotiations. Plainly, she had not. It is scarcely surprising, therefore, that she reacted sharply when it was suggested to her that she had done so. The file note makes clear the specific, and limited, nature of the questions which were asked. They concerned whether two particular dates were correct. The reference to plea negotiations appears to have been volunteered by the OPP solicitor, and only for the purpose of confirming that the second of the dates was something that had been agreed in the course of negotiations. There is nothing to suggest that her Honour's associate made any enquiry about the content of those negotiations. The voicemail message which she left with junior counsel for the defence simply conveyed the information obtained from the OPP solicitor.

30 We note also that her Honour's associate quite properly informed the OPP solicitor with whom she spoke that she would contact the defence in relation to the same matter. Axiomatically, there should be no contact with one side to a proceeding which is not disclosed to the other. However, it is by no means an inflexible rule that all communications between a judge's associate and the parties to a proceeding must be simultaneous, rather than sequential.

31 It is, of course, common in these days of active case management for a judge's associate to contact the parties about matters of a formal, or procedural nature. That is not done in open court, and no one suggests that it should be. It would be both wasteful and costly to require all communications of that kind to be conducted in that way. It would be absurd to infer apprehended bias simply on the basis that there had been a private communication between the associate (and therefore, the judge) and one party, without more.

32 In the present case, there was nothing to prevent the defence from following up the voicemail message left by the judge's associate, and making further enquiries of the associate, in order to clarify and confirm what information had been sought and given, and why it had been sought. That appears not to have been done. It is a serious matter to make an allegation of bias, whether actual or apprehended, against a judge. The facts should be properly investigated before such an allegation is made.

33 The allegation of apprehended bias is also refuted by asking, simply, what would have been said, by the defence, had her Honour raised the discrepancy as to dates in open court, immediately prior to sentencing the appellant? On no sensible view could that scenario have given rise to a properly based application that she disqualify herself.

34 It follows that it was not what was contained in the question posed by her Honour's associate, or in the answers provided, that was said to be objectionable. Rather, it was the fact that the question had been posed, sequentially, to both the Crown and defence, not in court, but over the telephone.

35 If, by adopting that course, her Honour acted imprudently, that still falls well short of suggesting bias.

36 The other two matters relied upon in support of the application for the judge to disqualify herself for apprehended bias were, in our view, entirely without substance.

37 The first was that her Honour had chosen to familiarise herself with the victim impact statement, a copy of which was filed with the Court prior to the hearing.[11] The complaint was that she had done so without the defence having had the opportunity to be heard. As we understand the position, the course adopted by her Honour, though perhaps somewhat unusual, was by no means extraordinary.[12] It is normally the practice for such statements to be handed to the judge by the prosecutor in open court, during the course of the plea.

38 Her Honour pointed out during the course of argument that, if she were going to be asked to rule on the admissibility of parts of the statement, it was necessary for her first to have read the material. As she put it, in the case of a lengthy victim impact statement containing contentious material it was likely to be to the benefit of the parties that she had read the statement in advance of the hearing. The alternative was to have the plea interrupted while she did so.

39 In our view, her Honour engaged in a perfectly proper debate with counsel about whether, and to what extent, the material in the victim impact statement was admissible. The position was no different from that of a judge who reads in advance affidavits which have been filed in a proceeding, before hearing argument on those parts of the affidavit evidence to which objection is taken. It is commonplace for judges to rule as inadmissible parts of affidavits which they have already read. It has never been suggested that this creates an apprehension of bias.

40 The real complaint advanced on behalf of the appellant was that her Honour declined to give a clear, and decisive, ruling at an early stage as to which parts of the victim impact statement she would act upon, and which parts were rejected. As we read the transcript, she did, ultimately, make the position clear, or at least sufficiently so as to negate any argument of procedural unfairness. Certainly, this latter point cannot give rise to an argument of apprehended bias.

41 The second matter, upon which counsel relied in support of the allegation of apprehended bias, related to the manner in which her Honour had questioned Mr Jeffrey Cummins, the clinical psychologist called by the defence on the plea. We were referred to a series of questions put by her Honour to Mr Cummins which, it was submitted, would have suggested to a reasonable bystander that she was 'cynical' about of some of his opinions. One particular exchange was said to be 'dripping with cynicism'.

42 We acknowledge, of course, that we do not have the advantage of having seen and heard the questioning of Mr Cummins take place. However, counsel for the appellant specifically eschewed any reliance upon her Honour's demeanour, or the tone with which the questions were asked. Working solely from the transcript, we see nothing in those questions which went beyond the proper investigation by the sentencing judge of matters squarely relevant to the decision which she had to make. It was, we think, quite illuminating for her Honour to explore the question of the 'nexus' between the sexual abuse which the appellant himself had experienced as a young boy, and the offending for which he was to be sentenced. It was only under the judge's questioning that the expert made clear that what he was describing was the appellant's 'perception' that such a nexus existed, and not the expression of his own expert opinion that the abuse did in some way explain the offending.

43 In that regard, it should be noted that the courts have generally been reluctant to criticise trial judges for actual or apprehended bias by having interfered too much in the eliciting of evidence from witnesses, or for otherwise taking too active a part in the presentation of the case.[13] A statistical count of the total number of interventions, or even the number of interventions against one side only, is unlikely to be decisive. What will ordinarily be needed to show apprehended bias is an overall level, or tone of intervention, which is quite out of the ordinary such that it demonstrates an appearance of pre-judgment, hostility, or partiality.[14] This Court has held that, even strong expressions of exasperation with, or disbelief of, parties or their witnesses will not necessarily give rise to apprehended bias.[15] The trend towards greater interventionism by judges, particularly through greater case management, suggests that appellate courts will continue to be cautious before concluding that bias (actual or apprehended) has been demonstrated.

45 The sentencing judge referred, on a number of occasions in her sentencing remarks, to the delay that had taken place between the time when the offences were committed and when they were first drawn to the attention of the police. She also referred to the delay of just over two years that occurred from the date the complainant made a detailed statement to the police, on 24 May 2005, to the date on which the appellant was charged, in August 2007. Counsel who appeared on behalf of the Crown on the plea had explained that the police had had difficulty in locating the general practitioner who had diagnosed the complainant's pregnancy in 1980. Very properly, he acknowledged that this delay was in no way attributable to the appellant, nor had he in any other way contributed to the delay that had occurred.

46 When her Honour came to consider the various mitigating factors that were present in this case, she said, in relation to delay:

Secondly, these offences were committed a long time ago, between 28 and 31 years ago. There was a substantial delay between the period of offending and the matters first being reported to police. In the meantime you and your wife continued to have a relationship with the complainant into adulthood and you both cared for her daughter for a period. The complainant's letter to you, now contained in Exhibit 2, evidences a willingness on her part to explore some measure of reconciliation with a view to helping her resolve the internal conflict which has continued to torment her. She also readily acknowledges your unresolved trauma from childhood abuse. There was further delay of over 2 years between the date of the complainant's statements to police and the date when you were charged. You made a No Comment record of interview and the police took some time to locate Dr Cole. However, the Crown prosecutor otherwise acknowledged that the delay was not attributable to any neglect on your part.

It must be acknowledged that crimes of this type, are frequently concealed by a young victim for a variety of reasons. In this case the complainant apparently had no support from family or health professionals to have this matter brought to the attention of authorities, even when she fell pregnant and was subjected to a termination of pregnancy. While she also acknowledges other adverse influences in her life, I accept that your offending had the most profoundly destructive affect upon her, one consequence of which was to render her incapable of bringing these matters to the attention of police before she did. You may understand her reluctance and indecision better than most, in view of your own childhood abuse.

I acknowledge that the prospect of a term of imprisonment is now more difficult for you to bear, particularly in view of your age. I note that there is no suggestion that you are not being adequately or appropriately treated for you back condition and there was also no evidence that you have required specialist care or supervision. I also note that a term of imprisonment is difficult for anyone at any age, but often for different reasons. Nevertheless, I do take into account the very long delay before any formal complaint was made and the fact that you have lived for many years in the uncertainty as to whether and when you would be brought to justice.[16]

47 The appellant's submission that her Honour failed to give sufficient weight to the delay in this case cannot be accepted. She recognised that delay was a mitigating factor, and that the appellant had lived for a number of years in a state of uncertainty as to whether, in the end, he would be charged for these offences.

48 Her Honour also took into account, in conjunction with delay, the appellant's lack of prior convictions, his good character, and his evident remorse. She concluded that he had reasonable prospects of rehabilitation.

49 The weight to be accorded to delay, as a mitigating factor, will, of course, depend upon the particular circumstances of any given case. It is a common feature of cases involving sexual offending against young children that the offences are only brought to light many years later. In such circumstances, delay might not carry the same weight as it otherwise would.[17]

50 There is nothing to suggest that the sentencing judge failed to give sufficient weight to the delay that took place in this case. Each of the individual sentences imposed, as well as the total effective sentence, fairly reflected both the gravity of the offending, and the mitigating factors that were present, including delay. This ground is not made out.

Ground 3 - Appellant's history of having been sexually abused

51 It was submitted on behalf of the appellant that the sentencing judge paid 'scant regard' to the sexual abuse that the appellant had suffered when he was aged 14.

52 We are not persuaded by this submission. The sentencing judge referred specifically to this matter in her sentencing remarks. She said:

Finally it was submitted that you were the subject of sexual abuse as at 14 years old. I have already outlined these circumstances, as reported by you, in some detail. Mr Cummins formed the view that you continue to suffer unresolved post traumatic stress as a result of this abuse and the attitude of your parents. Your two incidents of sexual assault at the hands of two male strangers may be contrasted to the prolonged sexual abuse which you inflicted upon your step daughter. Nevertheless, I do take the psychological affect upon you into account.[18]

53 The contention that her Honour displayed cynicism towards the sexual abuse is not borne out by a careful reading of the evidence given by Mr Cummins on the plea. Her Honour asked him a number of questions as to whether there existed a nexus between that sexual abuse, and the appellant's own treatment of his step-daughter. Those questions were all legitimate. Far from rejecting the appellant's claim to have been abused, her Honour specifically accepted that claim. She said that she would give it appropriate weight.

54 There is nothing to suggest that she did not do so. The weight properly to be given to childhood sexual abuse as a factor in sentencing 'will vary greatly from case to case', as Ormiston JA explained in R v AWF.[19] Expert evidence, as to whether or not there is a nexus between the abuse and the offending, will usually be critical. In the present case, as noted earlier, the expert made clear in response to the judge's questions that he could only say that the appellant 'perceived' there to be such a nexus. This may be contrasted with the example, given by Ormiston JA in AWF,[20] of a case where the evidence before the court confirms an objective link between the earlier abuse and 'a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious...'. There was no such evidence in the present case.

Ground 4 - Weight to be given to specific deterrence

56 The sentencing judge found that there was a need to have regard to specific deterrence. That finding can be supported by the evidence of Mr Cummins. In his report, dated 4 June 2008, he said that, in his opinion, the appellant's offending behaviour indicated that he would attract the diagnosis of 'Paedophilia' (DSM-IV-TR, Code 302.20) and 'hebephilia'.[21] He noted that the appellant's paedophilic behaviour had been limited to an incestuous relationship. He said that the appellant still had significant therapeutic work to do to identify, and then unravel, contaminated interpersonal boundaries which were integral to his offending behaviour. He regarded the appellant as lacking insight into the wrongfulness of his behaviour. He said that, in his opinion, it was appropriate that the appellant undergo a sexual offender treatment program.

57 Despite Mr Cummins' view that the risk of the appellant re-offending was 'low', it was open to her Honour to give some weight to the need for specific deterrence. No error has been demonstrated in this regard. This ground must be rejected.

Ground 5 - Weight given to the victim impact statement

58 The sentencing judge carefully dissected the victim impact statement. She excluded those parts that she was satisfied were irrelevant, and took into account only those parts that contained particulars of the impact of the offence upon the complainant. She had regard to s 95B of the Sentencing Act 1991 (Vic), and referred to several authorities dealing with that provision.[22] It is clear that she did not err in principle in the use to be made of such a statement.

59 It was submitted on behalf of the appellant that her Honour ought not to have had regard to what the complainant said about the conduct of the medical and paramedical staff at the time of the termination of her pregnancy. She claimed to have been made to feel guilt and shame. The emotional scarring associated with the termination were, in our view, a direct result of the appellant's offending, even though he was not responsible for the manner in which the complainant was treated by the medical staff.

61 This ground cannot be sustained. The sentences imposed on each count, and the total effective sentence, were within the range for offending of this nature. The appellant's conduct was utterly abhorrent. It extended over a lengthy period. It called for both general and specific deterrence. It also required denunciation in the strongest possible terms.

63 For these reasons, the appeal should be dismissed.

[1] The matter is dealt with in some detail in Mark I. Aronson, Bruce D. Dyer and Matthew Groves, Judicial Review of Administrative Action, (4th ed, 2009), [9.285]. See also Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd [2005] FCAFC 138; (2005) 144 FCR 264, 275; and, in particular, Anthony Mason, 'Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review', (1998) 1 Constitutional Law and Policy Review 21 ('Mason').

[2] [1976] HCA 39; (1976) 136 CLR 248, 266 ('Watson'). Cf Lee v Cha [2008] NSWCA 13.

[3] Such relief would not, of course, be available against a judge of the Trial Division of this Court, but would be available against a judge of the County Court.

[4] Barton v Walker [1979] 2 NSWLR 740, 749-50; Rogerson (1990) 45 A Crim R 253; Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476; (2001) 194 ALR 638, 664-5.

[5] Watson [1976] HCA 39; (1976) 136 CLR 248, 266. See also Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; Rajski v Wood (1989) 18 NSWLR 512; and Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48. Now that interlocutory appeals may be brought in relation to criminal matters, pursuant to s 295 of the Criminal Procedure Act 2009 (Vic), a judge's refusal to recuse himself or herself on the basis of apprehended bias may be dealt with pursuant to that procedure. See GP v The Queen [2010] VSCA 142.

[7] This section has been repealed but still applies to this proceeding.

[9] Ibid, 289. Their Honours noted that this was the practice described in R v Johansen (No 2) [1917] VicLawRp 100; [1917] VLR 677, 679 (Hood J) and 680 (Cussen J).

[11] The filing of a copy of a victim impact statement must take place a reasonable time before sentencing (s 95C(a) of the Sentencing Act 1991 (Vic)). A further copy must be provided to the defence and to the prosecutor (s 95C(b)), and must have attached to it a copy of any relevant medical report. There is no suggestion, in the present case, that the defence were not provided with a copy of the statement when filed.

[12] It goes without saying that any victim impact statement filed with the Court, pursuant to s 95C of the Sentencing Act 1991 (Vic), must be read by the sentencing judge. It need not, however, be read aloud in open court, save where the victim requests that that be done (s 95F(1) of the Sentencing Act 1991 (Vic) provides that, in such circumstances, the prosecutor shall do so). Section 95F(2) provides that the sentencing judge may, during the course of the sentencing hearing, read the statement aloud.

[13] See, for example, Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 122-3.

[14] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425.

[15] Anderson v NAB [2007] VSCA 172, [93].

[16] R v [GEM] (unreported, County Court of Victoria, Judge Jenkins, 13 June 2008), [43] - [45].

[17] R v Glennon [1993] VicRp 6; [1993] 1 VR 97; Dick (1994) 75 A Crim R 303; R v MWH [2001] VSCA 196; R v Nikodjevic [2004] VSCA 222; and R v CLP [2008] VSCA 113.

[18] R v [GEM] (unreported, County Court of Victoria, Judge Jenkins, 13 June 2008), [50].

[21] 'Hebephilia' refers to the sexual preference for individuals in the early years of puberty (generally ages 11 to 14).

[22] These included R v Swift [2007] VSCA 52; (2007) 15 VR 497; and R v Hester [2007] VSCA 298.

G E M v The Queen [2010] VSCA 168

At a glance

Court

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Judgment (112 paragraphs)

G E M v The Queen [2010] VSCA 168 (1 July 2010)

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Legislation Cited (1)

Cases Cited (10)