G J W v The Queen [2010] VSCA 193

2 After a trial in the County Court, GJW was convicted of 14 counts of incest and four counts of committing an indecent act with or in the presence of a child under the age of 16. The offences were alleged to have been committed between about August 2003 and June 2005 when the victim was aged between 11 and 13. She was the daughter of GJW's de facto wife. The counts of incest of which the jury found GJW guilty consisted of digital/vaginal penetration (counts 1, 10 and 17), cunnilingus (counts 2, 12 and 13), fellatio (counts 5, 6, 7, 9 and 14) and penile/vaginal penetration (counts 11, 15 and 16). The indecent acts (counts 3, 4, 8 and 18) consisted of exposure of GJW's penis (count 3) and the victim masturbating him (counts 4, 8 and 18).

3 The trial judge imposed a sentence of five years' imprisonment on the appellant in respect of each count of incest and one year in respect of each count of performing an indecent act. He cumulated six months of each of the incest sentences, other than that on count 2, and one month of each of the indecent act sentences, on the five years imposed on count 2, making a total effective sentence of 11 years 10 months. He declared the appellant to be a serious sexual offender in respect of each offence after count 2 and considered the matters required by Part 2A of the Sentencing Act 1991 with respect to serious sexual offenders. In particular, his Honour referred to the necessity to apply those requirements subject to the requirements of proportionality and totality. He referred to appropriate matters of mitigation as they applied to the appellant and noted the opinion of a psychologist whose evidence was before the Court. His Honour fixed a non-parole period of eight years.

4 GJW appealed against the severity of his sentence in a notice which contained

five grounds. He was granted leave to appeal by Neave JA on 7 August 2009. As they were argued before this Court the grounds were subsumed into three points. His complaints were that the trial judge failed to differentiate between the relative gravity of the facts giving rise to each of the incest counts, that he was in error in ordering cumulation in respect of every incest count and that in imposing a total effective sentence of 11 years and 10 months he had offended the principle of totality and/or such a sentence was manifestly excessive.

5 In his sentencing remarks the trial judge only briefly referred to the individual acts of incest. He did this, he said, because the victim was present in court and he did not wish to cause her any unnecessary distress. His Honour did not consider the gravity of each count as compared to the others, nor did he advert to the fact that some of the offences were committed at the same time or shortly after others, so as to be able to be properly considered as a single episode of offending.

6 Counsel for the appellant in this Court argued that the differences in the offences of which the appellant was found guilty were not confined to differences in the method of penetration identified above. Nor are the indecent acts identical. He provided an analysis of the facts of his client's offending (with which the Crown did not disagree) which demonstrated significant differences which, he argued, led to a conclusion that in imposing identical sentences on all the incest counts and then on all the indecent act counts, the trial judge made a sentencing error. Further, he argued, that in failing to consider the relationship between various counts when making orders for cumulation he compounded that error which led, ultimately, to an excessive sentence. His analysis of the various counts suggested the following connections between the facts giving rise to those counts:

• Counts 4 and 5 involved the victim being required to masturbate the appellant followed immediately by her being required to fellate him.

• Counts 7 and 8 also involved fellatio and masturbation, to ejaculation. These events occurred in the course of the same transaction.

• Counts 9, 10, 11 and 12 involved fellatio, digital penetration, penile/vaginal penetration and cunnilingus all occurred in the course of the same incident at the 'sheep yard'.

• Counts 13 and 14 involved simultaneous fellatio and cunnilingus.

• Counts 17 and 18 involved digital/vaginal penetration and masturbation of the appellant by the victim, such events occurring in succession.

7 Counsel for the appellant frankly conceded that count 15 - a count of penile/vaginal penetration - involved a lack of consent by the victim. Further, the appellant was not wearing a condom and ejaculated whilst his penis was still within her vagina. He designated this count as being, clearly, the most serious of the 18. It may also be that count 7, the fellating of the appellant in his car also involved a lack of consent. Although consent is, of course, not an issue in cases such as these, the facts upon which count 15 are based together with the fact of GJW taking no precaution to protect the victim from the consequences of his criminal act constituted significant features of aggravation in that case which were not present in the others.

8 Counsel for the appellant argued that it was incumbent upon the trial judge, in fixing sentences, and making orders for cumulation, to give consideration to the above matters and to reflect that consideration in the sentences imposed and in the cumulation orders made. The fact that every sentence imposed for incest was the same, as was every order for cumulation, leads, in this case, to the inference that his Honour did not give consideration to the differences in the culpability of the appellant for each event or set of events in arriving at an appropriate sentence and, ultimately, a total effective sentence. There is some force in the appellant's submission: Ibbs v R.[1] Nevertheless, it must be said that there were very serious aggravating factors common to all the offences, namely, the age of the victim and the fact that that the appellant was in a position of trust.

9 Counsel for the appellant produced sentencing statistics in this Court which showed that the total effective sentence in this case was in the top five percent of sentences for incest. He argued that this was not so serious a case as to be included in that percentile. But such sentencing statistics are of very limited use. They do not distinguish between cases where an accused has pleaded guilty from those where, as here, all counts are contested. An early plea of guilty in a case as emotionally charged and potentially distressing as incest involving a very young child warrants a significant discount, particularly if it is accompanied by demonstrable contrition and remorse. Such discounts are routinely applied where pleas of guilty are entered. The appellant here was, of course, not entitled to such discount. His defence involved a denial of every count and the consequent allegation that the complainant was a liar and had concocted her evidence in respect of each count.

10 Counsel for the appellant also argued, in support of his claim that this sentence was manifestly excessive or failed to give proper consideration to the principal of totality, that the total effective sentence in this case was significantly outside the range of sentences imposed for cases involving a single victim. He also referred to the limited period of the appellant's offending - 18 months.

11 The total effective sentence which the trial judge imposed in this case was the mathematical conclusion arrived at by imposing sentences and making orders for cumulation without distinction between counts, whether as to their individual seriousness or their relationship to each other. The result was a very severe head sentence, ameliorated by the imposition of a non-parole period which might be regarded as unusually lenient when compared to that head sentence.

12 In Mill v R[2] the High Court adopted a statement from Thomas, Principles of Sentencing, 2nd edition (1979), pp 57-59, concerning the principle of totality which included the following of particular relevance to this case:[3]

The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.

13 Should a review of a total sentence result in the conclusion that it is too severe, a more appropriate sentence can be constructed either by altering the orders for cumulation and concurrency already contemplated or by lowering the sentences for individual counts. The High Court in Mill approved either approach although expressed preference for the former. In DPP v Grabovac,[4] Orimiston JA in this court said:[5]

In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a "crushing" sentence.

14 It is possible that the trial judge here considered it satisfactory to ameliorate the head sentence by imposing the non-parole period which he did. If he did, such amelioration would, of course, be effective only to the extent that the prisoner obtained conditional release before the expiry of his head sentence - a possibility which must never be assumed. Whether the sentencing judge approached the matter in this way or not, in all the circumstances of this case the principle of totality requires the head sentence to be reduced.

15 This appeal should be upheld both on the ground that the trial judge failed properly to differentiate the criminality involved in the counts upon which he sentenced the prisoner and/or the principle of totality required a lower head sentence in this case than 11 years and 10 months. The appellant should be resentenced.

16 A resentencing exercise here requires not only a reconsideration of the orders for cumulation but also of the sentences imposed on each individual count. Having regard to the circumstance of count 15, the sentence in respect of it needs to be increased, as does that on count 7.

17 I would propose resentencing the appellant to imprisonment as follows:

18 Using the sentence imposed on Count 15 as the base sentence (6 years) there should be orders for cumulation on that sentence as follows:

19 Otherwise all sentences are to be served concurrently making a total effective sentence of 10 years' imprisonment. The non-parole period of eight years fixed by the sentencing judge should stand as should all other orders and declarations made by him, subject to calculation of the now applicable period of pre-sentence detention.

[1] [1987] HCA 46; (1987) 163 CLR 447.

[2] (1988) 166 CLR 59 ('Mill').

[3] (1988) 166 CLR 59, 62-63. See also Ryan v R [1982] HCA 30; (1982) 149 CLR 1, 22-23 (Brennan J).

[4] [1998] 1 VR 644.

[5] [1998] 1 VR 644, 680 (Ormiston JA).