Grantley (a Pseudonym) v The Queen [2018] VSCA 112

1 The appellant (who is referred to by the pseudonym Richard Grantley[2]) pleaded guilty to one representative charge of incest, contrary to s 44(1) of the Crimes Act 1958 (the 'Act'); a further charge of incest; and one charge of indecent act with a child under 16 years, contrary to s 47(1) of the Act.[3] He was sentenced as follows:

Other relevant orders: Sentenced as a serious sexual offender on charge 3. Forensic Sample Order pursuant to s 464ZF of the Act_._ Report pursuant to the Sex Offenders Registration Act 2004 for life.

3 Tate JA granted leave to appeal on the sole ground that the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period were all manifestly excessive. As her Honour recorded in her reasons,[4] the ground of appeal is supported by the following particulars:

(a) the judge gave manifestly insufficient weight to his early pleas of guilty, his genuine remorse, his age, his prospects for rehabilitation and the principle of totality;

(b) the sentences imposed on charges 1 and 2 are manifestly too long, given the absence of certain otherwise aggravating features;

(c) the sentences imposed on charges 1 and 2 are not consistent with current sentencing practices, with those sentences reflecting a stark (not incremental) departure from current sentencing practices; and

(d) the sentences imposed are more severe than was necessary to achieve the purposes for which the sentences were imposed.[5]

4 For the reasons that follow, we would dismiss the appeal. (We gratefully adopt Tate JA's description of the circumstances of the offending, and her summary of the sentencing judge's reasons.)

5 The acts giving rise to the charges occurred in 2011 and 2014. The two complainants, Libby and Ella, are the stepdaughters of Grantley. He began a relationship with their mother, Karen Chester, in 2006 and began living with her and her three daughters: Libby, then aged about seven, Ella, aged about five, and Freda, the youngest child. Following a break in 2008, Grantley and Ms Chester were married, and had a daughter, Tara, in 2010. The judge described Grantley as 'a trusted father figure'[6] to the girls and his conduct as involving a 'gross breach of trust'.[7]

6 The first incident occurred in 2011, when Libby was aged about 12-13 years and Grantley was about 38. Father and stepdaughter were on the couch together under a doona watching TV. Grantley began to touch Libby's leg and then her genital area. The judge described what followed:

She froze and pretended to be asleep, which is a very common reaction for children suddenly finding themselves in such circumstances. You continued touching her, eventually rubbing her vagina under her clothing and groping her breast on top of her clothing. You then digitally penetrated her for a considerable time, while she continued to pretend to be asleep, until the TV program finished and the other girls, Ella and Freda, left the room. You then resumed penetrating your eldest stepdaughter, again for an extended period of time, while also squeezing her breasts.[8]

These two occasions of digital penetration formed the basis for charge 1, being the representative charge of incest.

7 The second incident took place in 2014 and involved Ella, who at that time was about 14, while Grantley was about 40. The judge described this episode of offending in the following terms:

Ella was sitting on your lap at the computer. You began touching her leg, and then her genital area. Ella froze, as she was in shock, again a common reaction for a young person suddenly confronted with a sexual act in such circumstances. You continued touching her, eventually putting your hand inside her underwear and digitally penetrating her.[9]

8 The third incident occurred in 2014, a few months later, and again involved Ella. On this occasion, Grantley and Ella were in the bedroom Grantley shared with his wife. The judge outlined Grantley's behaviour as follows:

[Y]ou were 'play wrestling' on the bed. You grabbed Ella's top and pulled it down, exposing her breasts, and she saw you looking at her breasts in the wardrobe mirror.[10]

This conduct formed the basis of charge 3 (indecent act involving a child under 16).

9 The judge described Grantley's conduct in the three incidents as 'outrageous',[11] aggravated by the breach of his position as a trusted parent. The harm suffered by the complainants extended to the whole of the family, affecting his wife and other daughters, including his youngest daughter, Tara, who as a result has lost all contact with him.[12]

10 The judge found that Grantley's conduct was serious, causing considerable suffering for the complainants and the other members of the family.[13] She noted that Grantley took advantage of Libby, thinking she was asleep, and was persistent in his behaviour, repeating the penetration when she appeared not to wake up. He then offended against Ella three years later in a manner which the judge characterised as 'brazen'.[14] The judge concluded, however, that the offending was not in the worst category of these offences because they were not frequent. She assessed the offending as 'mid-range'.[15] There was no challenge to that categorisation on the appeal.

11 In careful and comprehensive reasons, the judge noted that Grantley had pleaded guilty at the earliest opportunity, thereby saving the complainants and his family the ordeal of a trial, and the community the time and cost of that process. The early plea showed, her Honour said, that he accepted responsibility for his offending and demonstrated remorse. The judge took into account that, although there were some dishonesty offences in the Magistrates' Court in the early 1990s, Grantley had no relevant criminal record. She sentenced him on the basis that he had not previously committed an offence of a similar nature.

12 On the issue of prospects of rehabilitation, the judge noted that Grantley had strong support from his two older brothers and from a friend who was a former employer, and that this continued support was vital to his rehabilitation.[16] The judge referred to Grantley's difficult upbringing, being raised by his violent and alcoholic father alone after his mother had left the family when he was young. This upbringing was dysfunctional, involving both emotional neglect and physical violence.

13 The judge also took into account an episode of sexual abuse against Grantley by his father when he was five (touching him on the buttocks and then the penis) but, in the absence of any clear evidence to connect that episode with the offending, the judge concluded that it did not form a basis for reducing his moral culpability.[17] While Grantley had expressed remorse and empathy for his behaviour against the complainants, his insight into the factors contributing to that behaviour remained low.

14 The judge concluded nevertheless that Grantley's prospects of rehabilitation were reasonable, because he accepted responsibility for his actions; he had shown remorse and was developing empathy; there was an absence of psychiatric or substance abuse issues; and he was willing to undergo further treatment. Her Honour noted that Grantley had voluntarily started counselling with a psychologist, Ms Vikki Prior, in early January 2016 and had attended eight sessions until late July 2016. Ms Prior had noted that Grantley appeared to be 'genuinely bewildered by and disappointed in [his] behaviours and ashamed'.[18] She referred to Ms Prior's observations that Grantley had accepted responsibility for his actions and appeared to be genuinely remorseful but that, while he showed some insight into his behaviours, continued treatment would be beneficial.

15 Similarly, Mr Jeffrey Cummins, a forensic psychologist, accepted that Grantley was taking responsibility for his behaviour, although he was at a relatively early stage in developing insight about his motivations. Mr Cummins found no issues with drugs or alcohol, and no psychiatric disorder. He also expressed the view that Grantley should undertake further treatment focused on his dysfunctional upbringing, including a group-based sex offender program, in order to reduce his risk of re-offending from 'moderate to high' to 'low to moderate'.[19]

16 Counsel for Grantley on the plea indicated that her client was aware of the requirement for undertaking courses in custody in relation to sexual offending, that he wished to engage fully with that process and to continue private counselling and psychological treatment following his release.

17 The judge emphasised the need to take into account general deterrence. She also found that specific deterrence was relevant because she had concluded that, without further treatment, there was a risk that Grantley would re-offend.

18 In addition to noting that as a result of the sentence Grantley would become a registrable sex offender and subject to the regime under the Sex Offenders Registration Act 2004, the judge recorded that she would be sentencing him as a serious sex offender on charge 3. The result was that she had regard to the protection of the community as the principal purpose for imposing sentence on that charge, but declined to impose a sentence greater than was proportionate to his offence.[20]

Further, I note that recent Court of Appeal authority states that the guidance provided by current sentencing practices for a particular offence may conflict with the guidance provided by the statutory maximum, and where that is so, the requirement to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences. The Court of Appeal in 2009, and again in 2016, found that there is a disparity between the maximum penalties and the sentences handed down for sexual penetration offences against children, with a real question as to the adequacy of current sentencing.[21]

20 Over the past two years there has been a dramatic change in the sentencing parameters for incest offences. In 2016, in Director of Public Prosecutions v Dalgliesh (a pseudonym),[22] this Court upheld the Crown's submission that the sentences being imposed for incest offences of mid-range seriousness were

disproportionately low when considered against the yardstick of the maximum penalty of 25 years' imprisonment, having regard to the objective gravity of the offending and the high moral culpability of the offender.[23]

21 The Court called for incest sentences to increase, saying:

In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be - and should be - self-correcting.

Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.

On the current state of sentencing, there is no sufficient differentiation between worst case and mid-range offending. As we have said, sentences for mid-category offending have been constrained by sentences for worst category offending, and the sentencing range for mid-range offences has been inappropriately compressed.

As senior counsel for the Director correctly submitted, it is part of this Court's overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing. To that end, we have concluded that sentencing courts must, by increments, increase the sentences for mid-range incest offences, so that the range of sentences is uplifted and substantially expanded. The maximum penalty provides sentencing courts with ample latitude to fix sentences which properly reflect the degree of criminality involved.[24]

22 In that case, the offender had pleaded guilty to two charges of incest, the first of which had resulted in the pregnancy of the teenage victim. On a proper application of sentencing principles, the Court said

a sentence of the order of seven years' imprisonment was warranted for charge 2 [the non-pregnancy related charge], with the aggravating circumstance of pregnancy requiring a significantly higher sentence again on charge 1.[25]

23 On appeal by the Director, the High Court held that this Court had erred in not applying to the respondent offender its conclusion as to the inadequacy of the sentence imposed by the sentencing judge.[26] Acknowledging that this Court had been concerned to avoid perceived unfairness to the respondent, the High Court said:

The only expectation that an offender can have at sentence is of the imposition of a just sentence according to law.[27]

24 The High Court endorsed this Court's conclusion that current sentencing practices for incest offences did not reflect the objective gravity of the offending. The majority (Kiefel CJ, Bell and Keane JJ) said:

[T]he range was seen [by the Court of Appeal] to reflect a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence, and the moral culpability of the offender. The view of the Court of Appeal that this amounted to an error of principle was clearly correct.[28]

25 The Director's appeal challenged the sentence of three years and six months' imprisonment on the incest charge which involved the pregnancy. On remitter to this Court, the respondent was resentenced on that charge to seven years and six months' imprisonment.[29] The Court noted that - because of the prolonged appeal process to which the respondent had been subjected - this was a 'slightly lower sentence ... than might otherwise have been appropriate'.[30] The Court made clear that the decision to affirm the sentence of three years' imprisonment on the other incest charge merely reflected the Director's decision not to challenge it. It was not to be taken as meaning that the Court regarded the sentence as 'anywhere near appropriate'.[31]

26 Recently, in Carter (a pseudonym) v The Queen,[32] this Court dismissed an appeal against sentences of six years' imprisonment, and a total effective sentence of eight years' imprisonment, on two charges of incest. Each charge was constituted by a single act of digital penetration. On the first occasion, the complainant was 11 years old; on the second occasion, she was 12.

27 In submissions on the appeal, it was contended for the appellant that - consistently with what was said in Dalgliesh [No 1] - sentences for incest should be adjusted upwards 'incrementally'. The Court rejected that argument, holding that:

Such an approach cannot stand with the reasoning in Dalgliesh (HCA), which requires a sentencing court in such circumstances to correct the error of principle underlying inadequate current sentencing practices and impose a just sentence according to law, even where an offender has pleaded guilty in light of current sentencing practices. The incremental increase cases in Victoria should be taken to have been overruled by Dalgliesh (HCA) ...[33]

28 It is apparent from the leave reasons, published after Dalgliesh [No 1] but before Dalgliesh (HCA), that Tate JA considered it arguable that the sentences imposed in the present case did not reflect an 'incremental' increase on previous sentencing standards.[34]

29 The appellant entered his pleas of guilty after the judgment in Dalgliesh [No 1] was published. As his counsel properly conceded, the judge was obliged to approach the sentencing task in the light of the guidance which the Court there provided. It was submitted, nevertheless, that the sentences which her Honour imposed on charges 1 and 2 reflected 'a stark - not incremental - departure from current sentencing practices'. As noted earlier, however, this Court in Carter held that 'the incremental increase cases' should be taken to have been overruled by the decision of the High Court in Dalgliesh (HCA). The duty of the sentencing court is to impose a just sentence, without the restraint of gradual increases.

30 Further, as counsel for the Director pointed out, the High Court in R v Kilic stated:

[T]he requirement to have regard to the sentences imposed in those [comparable] cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences may be passed; rather the range of sentences imposed in the past may inform a 'broad understanding of the range of sentences that would ensure consistency in sentencing and the uniform application of principle.'[35]

31 Counsel for the appellant drew attention to the recent decision against sentence in Director of Public Prosecutions v Tewksbury (a pseudonym),[36] in which this Court upheld the Director's appeal and imposed individual sentences of five years and five and a half years respectively on counts of incest. It was submitted that the offending in that case was more serious than the offending for which this appellant received six and a half years' imprisonment. Attention was also drawn to the decision in Thrussell (a pseudonym) v The Queen,[37] in which a sentence of six years' imprisonment was imposed on a charge of incest, where the offending involved physical violence.

32 In the light of the authorities to which we have referred, reference to those decisions can provide only general guidance as to the range reasonably open. As the High Court has repeatedly emphasised, including in Dalgliesh (HCA), the requirement of consistency in sentencing is directed at consistent application of the relevant legal principles, not at numerical consistency.[38] There is, accordingly, no occasion to undertake a detailed comparison of the offending the subject of this appeal and the offending the subject of either Tewksbury or Thrussell. Suffice it to say that a review of those decisions reveals nothing which casts doubt on the appropriateness of the present sentences.

33 This was, as the prosecutor correctly submitted on the plea, extremely serious offending. As the judge said:

This behaviour towards two children is outrageous. It is even more so, because you were in a parental position with these girls, who loved and trusted you until you offended against them so seriously.[39]

There was no challenge to any of these statements on the appeal.

34 It is clear, moreover, that the judge followed the approach laid out by this Court in Dalgliesh [No 1] for assessing the relative seriousness of an offence of incest. For that purpose it is necessary to consider

the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurs, each of which can increase the objective gravity of the offending, the culpability of the offender and the damage to the victim and the victim's family.[40]

Charge 1 was, of course, a representative charge, which attracts its own distinct sentencing considerations.[41]

35 In our view, the sentences imposed on the two charges of incest were well within the range reasonably open to the judge in the circumstances of the case.[42] The sentences are wholly consistent with what has been said by this Court and the High Court about the need for an increase in sentences for mid-range incest offences, in order to reflect the objective gravity of the offence and the moral culpability of the offender.

36 A separate complaint was advanced about what was said to be an unusually high non-parole period, representing as it does 78 per cent of the head sentence. Counsel pointed to the fact that the judge had given no separate reasons for the setting of the non-parole period.

37 As this Court has said repeatedly, there is no 'usual' non-parole period.[43] Although experience shows that a non-parole period is generally in the range

60-75 per cent of the head sentence, the fact that the non-parole period fixed in a particular case falls outside that range is not indicative of error.[44] As the Court (Vincent, Nettle and Kellam JJA) said in R v Merritt:

In our view the classification by counsel in this case of a non-parole period of 73 per cent of the head sentence as being 'unusually high' is of little assistance. The issue to be considered is whether in all the circumstances of the case, and of the offender, the non-parole period is capable of reasonable explanation or not. Obviously in circumstances where a sentencing judge has fixed a very long period between the non-parole period and the head sentence, or has fixed a very short non-parole period an appeal court will be much assisted by reasons given by the sentencing judge for fixing the non-parole period in question. However as is clear from the authorities, the failure to give such reasons does not speak of error. The question to be determined is whether in all of the circumstances it was reasonably open to the sentencing judge to fix such a non-parole period.[45]

38 In short, where the ground of appeal is that the non-parole period is manifestly excessive, the court will only interfere if it can be shown that it was not reasonably open to the sentencing judge to fix that non-parole period if proper weight had been given to all the relevant factors. In the present case, no basis for intervention is established. The judge was entitled to conclude, in our view, that a period of seven years was the minimum which justice required be served before the appellant be eligible for parole. Self-evidently, the judge, in setting the minimum custodial term, must have regard to the principles of denunciation and deterrence which are so important in relation to egregious offending of this kind.[46]

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the appellant's name.

[2] As the leave judge did, we will adopt the pseudonyms used by the judge below in her sentencing remarks: DPP v Grantley (a pseudonym) [2016] VCC 1538 [1] ('Sentencing reasons'). The judge called the older complainant Libby, the second complainant Ella, their next youngest sister Freda and the youngest sister Tara. The judge called the mother of the girls Karen Chester.

[3] Sections 44(1) and 47(1) were later repealed by s 16 of the Crimes Amendment (Sexual Offences) Act 2016. See now pt 8B of the Act including ss 50C ('sexual penetration of a child or lineal descendant') and 50E ('sexual penetration of a step-child').

[4] [2017] VSCA 67 ('Leave reasons').

[21] Sentencing reasons [41] (citations omitted).

[22] [2016] VSCA 148 ('Dalgliesh [No 1]').

[26] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37, 52 [70] ('Dalgliesh (HCA)').

[29] DPP v Dalgliesh (a pseudonym) [2017] VSCA 360 ('Dalgliesh [No 2]').

[32] [2018] VSCA 88 ('Carter').

[35] [2016] HCA 48; (2016) 259 CLR 256, 267 [22] (citations omitted).

[36] [2018] VSCA 38 ('Tewksbury').

[37] [2017] VSCA 386 ('Thrussell').

[38] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535 [49]; Dalgliesh (HCA) [2017] HCA 41; (2017) 349 ALR 37, 47-8 [49]-[50].

[40] Dalgliesh [No 1] [2016] VSCA 148 [73]; Tewksbury [2018] VSCA 38 [66].

[41] See DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 542-3 [38]-[41] and the cases there cited.

[42] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[43] Kneifati v The Queen [2012] VSCA 124 [24]-[26] and the cases there cited; see also Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538, 545 [26].

[44] R v Tran [2006] VSCA 222 [27]; Gray v The Queen [2010] VSCA 312 [21].

[45] [2008] VSCA 238; (2008) 191 A Crim R 272, 277-8 [24].

[46] See, for example, R v Sotto [2009] VSCA 70 [26]-[28]; R v LD [2009] VSCA 311 [38].