H R A v The Queen [2012] VSCA 88

1 This is an application for leave to appeal against sentence. Because of the matters raised under Ground 2, and in the interests of the expeditious disposal of the matter, the application for leave was referred to a Bench of two so that the matter could be dealt with as the hearing of the appeal if leave were granted.

2 For reasons which follow, I would grant leave but dismiss the appeal.

3 The applicant pleaded guilty to a number of serious sexual offences and was sentenced as set out in the following table, conveniently contained in the applicant's written case:

6AAA Statement: The learned trial Judge stated that the sentence he would have imposed if the applicant had been convicted of these offences after trial would have been 16 years with a non parole period of 13 years.

Other relevant orders: A compensation order was made against the Applicant.

4 The Crown's written case helpfully summarises the relevant facts as follows:

The complainant is the stepdaughter of the accused.

The complainant was six years of age when the applicant placed his hands down her pants and rubbed her vagina. This was approximately 2 years after the applicant had been living with the mother of the complainant. ( Count 1)

When the complainant was eleven the applicant began to sexually penetrate the complainant by placing his finger into her vagina. This conduct occurred over a 2 year period between August 2004 and August 2006. (Count 2)

The applicant commenced to penetrate the complainant's vagina with his penis from around the time when the complainant turned 13. This occurred on a weekly basis from August 2006 until the end of the year. (Count 3)

In 2007 the family moved to a property [in regional Victoria]. The applicant continued to penetrate the vagina of the complainant with his penis from January 2007 until September 2009. The frequency of the penetration occurring increased during this period. (Count 4)

On one occasion the applicant attempted to place his penis in the mouth of the complainant. The complainant did not allow this to happen. (Count 5)

On another occasion the applicant penetrated the complainant's vagina with a vibrator that he had given her. (Count 6)

On another occasion between January 2008 and September 2009 the applicant forced his penis into the mouth of the complainant. This was followed up by the appellant penetrating the complainant's vagina with his penis.

On 5 September 2009 the complainant's mother found the vibrator in the drawer where it had been hidden. She confronted the complainant about the vibrator and after initially telling her mother a lie about its origin she made disclosures about what the appellant had been doing to her.

The matter was reported to the police and the complainant made a statement. The complainant also made a telephone call that was recorded. In that call the appellant tried to persuade the complainant to deny the allegations and tell the police that she had lied.

The appellant was interviewed by the police and denied the allegations.

The matter was listed for trial on three occasions between April and November 2010. The applicant failed to appear on each occasion. On the first occasion the applicant failed to attend because he had received a gunshot wound that was later revealed to be self-inflicted.

On the second occasion the applicant deliberately crashed his car into a tree on the night before the trial was to commence. On the third occasion the applicant failed to answer his bail and was arrested in February 2011.

The matter was listed for trial on 6 June 2011. Plea negotiations had commenced prior to this date and the matter resolved as a plea of guilty on 3 June 2011.

5 There were originally five grounds of appeal identified in the written case. In the course of his helpful submissions, counsel for the applicant, who was defence counsel on the plea, indicated that he would not pursue two of the five grounds. Those were, respectively, the ground that the sentence was manifestly excessive and the ground that the judge had failed to apply the principles of totality in determining the total effective sentence.

6 With respect, I consider that that was a proper concession in the circumstances, acknowledging that it could not be maintained that the sentences which her Honour imposed were outside the range reasonably open to her in sentencing this offender for this offending. As the Court has been at pains to emphasise in recent years, to show that the sentence was not reasonably open is a very high hurdle to surmount.[1]

7 The three remaining grounds concern the matter which was explored in argument, namely, that there was before the Court the file kept by Justice Health in relation to the applicant. The grounds are as follows:

Ground 2: The learned sentencing Judge erred in admitting into evidence confidential and privileged material contained in the applicant's Justice Health File without notice being given and without the applicant's permission or consent.

Ground 3: The learned sentencing judge erred in not finding that there was genuine remorse.

Ground 4: The learned judge erred in not finding that the applicant was a low risk of reoffending.

Grounds 3 and 4 rely, in part, on the judge having taken account of what was in the Justice Health file.

8 Counsel for the applicant readily acknowledged that the file ('the DOJ file') in question was obtained on a subpoena, which the defence had requested be issued by the Court. It is common ground that the Department of the Justice answered the subpoena in the conventional fashion, by providing the file to the Court which then released it to the parties. Counsel for the applicant has informed the Court, and I accept, that both he and the prosecutor examined the file on the day of the hearing.

9 For his part, defence counsel was looking for material which would substantiate, from the medical records, matters concerning both the applicant's physical state of health and his psychological health and what (according to other evidence) was a state of depression.

10 In the course of the submissions on the plea, the prosecutor (responding to defence submissions going to matters in mitigation) drew the judge's attention to certain passages in the DOJ file. The prosecutor submitted that these passages cast doubt on the defence submission about the applicant's remorse and on the weight to be attached to statements made by the applicant to the clinical psychologist, Ms Warren. The transcript records that the Crown submission was made in the following terms:

[T]he Crown submits there is no remorse other than that which may be inferred from the plea of guilty of the accused, but even so, it's unclear in this case as to what extent that inference may be made in view of the subpoenaed documents which have now come into the possession of the Crown. I went through those documents, Your Honour, and certainly read Ms Warren's report, but to a certain degree Ms Warren is limited by what the accused tells her.

11 Having introduced the subject in that way, the prosecutor then went on to refer to particular statements which were recorded in the DOJ file as having been made by or about the applicant. She then submitted that

the question of remorse ought to be looked at also in light of those expressions that the Crown has now become privy to, given that the subpoenaed documents have come this way.

12 Naturally, in his reply counsel for the defendant (now applicant) sought to address those matters, making the following submission:

Just in relation to the comments that are being attributed to my client in the course of speaking to practitioners, in my submission they don't really take the matter any further for a number of reason. First of all, that they were spoken to medical practitioners in the context of him being incarcerated. Now, it's probably common knowledge that people who go into custody charged with these sort of offences need to, in a sense, present as - or need to protect themselves from other prisoners because of the nature of the offending.

There's a large element of bravado in all of the conversations that people have in those contexts. The practitioner wasn't there to perform a medical or psychological examination, he wasn't there to provide legal advice or take legal advice. He's simply there to assess my client for his physical condition and - - -

13 On this application, counsel for the applicant has frankly acknowledged that he did not raise any objection to the prosecutor's reliance on the Justice Health material to raise questions about the applicant's remorse. Complaint is made, nevertheless about the following passages in the judge's reasons:

The force of Mr Turner's submissions as to shame, empathy and acknowledging the impact of your behaviour is significantly reduced by the contemporaneous and contradictory observations that come from your Justice Health file which was produced. The file shows you saying between April 2011 and 16 June 2011 various things indicating a lack of remorse and insight.

...

I accept that your plea of guilty entitles you to a reduction for the reasons already outlined, that is the utilitarian value, the vindication of the complainant and the saving her of the ordeal of reliving the events and giving evidence. However, I do not consider the plea of guilty or your conduct as evidenced by what you were saying to Justice Health is evidence of remorse and so I do not consider there is additional weight to be given to your plea of guilty in that aspect.[2]

14 The objection now made in Ground 2, as it has been explained in the submissions, is that there was a fundamental procedural unfairness about this material being relied on adversely to the applicant when its production had been sought only in order to support his plea submissions. In my opinion, what occurred on the plea means that the objection must fail.

15 There were several options open to the defendant if this course of events was adjudged unfair. First, he could have objected in the strongest terms to the prosecutor's reliance on the subpoenaed material. Secondly, he could have asked the judge to rule on whether the material could be regarded as reliable without, for example, any independent proof from the makers of the statements in the documents.

16 Thirdly, it would have been open to the defence, if this was regarded as a critical matter, to seek an adjournment. I accept, of course, that the constraints of funding and the pressures on counsel who conduct pleas might have made that a difficult course. But if there was, in truth, an objectionable unfairness being perpetrated such that further instructions were required or the expert witness needed to be called, that is the course that should have been taken.

17 It seems to me there is an analogy with a civil proceeding where, in the course of running, the case being conducted departs from the pleadings. As this Court said in Southwick v Moore Stephens Melbourne Pty Ltd,[3] if the party taken by surprise does not seek an adjournment but elects to continue the proceeding on the changed basis, there is no room for a subsequent complaint about procedural unfairness.

18 That, in my opinion, is what occurred here. Far from objecting, defence counsel acquiesced in the course which had been taken. He elected to advance argument, not about whether the material should have been relied on by the Crown but about the weight to be attached to it. That was an implicit concession that the matter was properly before the Court and that it was for the judge to decide what weight she should attach to the matters. Her Honour proceeded to do that and took the matters into account in relation to questions which were being litigated on the plea. In my view, no objection can be taken on appeal to the decision having been made in that fashion.

19 Acknowledging that he might have taken other steps, counsel submitted that any error he might have made should not prejudice his client. It is important, therefore, to say that the judgment which counsel made in the course of the plea was a judgment which many counsel in his position would have made. It is not to be thought that the course adopted was a mistake or was in any way causative of a result different from what it might otherwise have been.

20 To emphasise that point, I would add this. Even if I had upheld this ground, and found that there was error on the part of the sentencing judge, I would nevertheless have dismissed the appeal. As ss 281(1) and (2) of the Criminal Procedure Act 2009 (Vic) make clear, even where error is shown the Court is obliged to dismiss the appeal unless satisfied that a different sentence should be imposed. I would not have been so satisfied. In my opinion, even if nothing should have been drawn from the Justice Health report, the sentence imposed was entirely appropriate in the circumstances, all relevant matters being taken into account.

21 An appeal court, of course, views the sentence in its entirety. It is entirely possible that an appeal judge would take a different view of a particular sentencing factor from the view taken by the sentencing judge. The question to be addressed under s 281(1)(b),[4] however, is whether the result arrived at was appropriate. The result would not have been any different, in my view, because the objective gravity of this offending was so significant that the issues of remorse and risk were only ever going to be subsidiary considerations in the sentencing synthesis.

22 Questions of general deterrence and denunciation are overwhelmingly important, as this Court has so often said, where child sex offending is concerned. Such is the continuing frequency of serious child sex offending by persons, like this applicant, who hold positions of trust that there is a continuing need for stern sentences.

23 The other two grounds concerned the findings which the judge made in relation to lack of remorse and risk of reoffending. In relation to the latter, the judge declined to accept the expert's view that there was a low risk. In my respectful opinion, that finding was well open to her Honour on the material before her. Likewise, her conclusions in relation to remorse were well open on the material before her. It is plain that the Justice Health material did affect her Honour's view of remorse but, as I say, even if that were left out of account, her Honour was entitled to view with real scepticism the expressions of remorse made by the applicant to Ms Warren.

25 I agree with the President that the appeal should be dismissed, for the reasons which his Honour has given and subject only to the following additional remarks.

26 In this matter, the prisoner's offending comprised persistent and serious sexual abuse of the victim commencing when she was six and continuing over 10 years within the context of a family relationship.

27 This character and the history of the avoidance conduct by the prisoner prior to his ultimate pleas meant that the question of remorse was necessarily a difficult issue for the defence upon the plea. In my view, the evidence as a whole demonstrated at best, from the prisoner's point of view, only limited insight on his part into his offending together with a diagnosis of underlying pedophilia by the psychologist which the defence had retained and a less than certain prognosis with respect to his prospects of rehabilitation.

28 Even if the evidence on the Justice Health file bearing on the prisoner's remorse had not been received by the sentencing judge, in my view, her Honour's conclusion that she could not have confidence the prisoner had a low risk of reoffending was the conclusion overwhelmingly supported by the evidence as a whole assessed on the balance of probabilities.

29 Having said this, it was plainly open to her Honour to have regard to the material contained upon the Justice Health file upon which the prosecutor relied.

30 First, no objection was taken to the reference by the prosecutor to that material. Secondly, defence counsel did not join issue with the veracity of the records upon the file. Thirdly, defence counsel made submissions as to the weight which should be accorded to the recorded information as to statements which had been made by the prisoner and in particular, understandably emphasised the manner in which the prison context might explain those statements. In turn, the submissions as to weight made on behalf of the prisoner implicitly invited the sentencing judge to consider and evaluate the material for herself, which she did in a logical and entirely persuasive manner.

The appeal is treated as having been instituted and heard instanter and dismissed.

[1] DPP (Vic) v Karazisis [2010] VSCA 350, [127]-[128]; Clarkson v The Queen [2011] VSCA 157, [89].

[3] [2008] VSCA 164; see also Donis v Donis [2007] VSCA 89 [61]-[64].

[4] Criminal Procedure Act 2009 (Vic).