Court of Appeal (Vic)|2011-11-22|Before: Mr J, Ashley JA, Bongiorno JA

I R J v The Queen [2011] VSCA 376 (22 November 2011)

DPP v I R J (Unreported, County Court of Victoria, Judge Douglas, 15 December 2010)

2 On 9 July 2010 the appellant pleaded guilty in the County Court to seven charges of an indecent act with or in the presence of a child under 16, four charges of incest, one charge of possession of child pornography, one charge of procuring a child for pornography, and one charge of production of child pornography. On 15 December 2010 he was sentenced as follows:

3 The total effective sentence was 11 years' imprisonment. The sentencing judge fixed a non-parole period of 9 years' imprisonment. Her Honour also stated that but

for the plea of guilty she would have imposed a total effective sentence of 13 years' imprisonment with a non-parole period of 11 years' imprisonment.

4 Three grounds of appeal were originally advanced:

Ground 1: The learned sentencing judge erred in finding, beyond reasonable doubt, that the applicant was a paedophile;

Ground 2: The learned sentencing judge erred in imposing a non-parole period which was, proportionate to the total effective sentence, so high as to bespeak error;

Ground 3: The individual sentences, total effective sentence and non parole period are each manifestly excessive.

5 On 18 May 2011 Ashley JA granted leave to appeal in respect of ground 2. In relation to ground 3 his Honour refused leave in respect of the contention that the individual sentences were manifestly excessive, but granted leave to appeal against the orders for cumulation, on the following basis:

In respect of the sentences on charges 3-14, there was a presumption of cumulation. The judge ordered otherwise, saying that she had taken 'the principles of totality' into account.[1] Even so, the orders for cumulation seem to have been made in respect of clusters of offences which occurred on particular occasions, and probably within short time-frames on those occasions. A lengthy head term was entirely justified. But I consider that it is reasonably arguable that some of the orders for cumulation, operating together, did produce a head term which was manifestly excessive. If that was so, it would impact upon the non-parole period.[2]

6 Leave to appeal was refused in respect of ground 1.

7 On the hearing of the appeal the appellant's case focussed on the principle of totality in respect to the total effective sentence and it was also submitted that the non-parole period was disproportionate to the total effective sentence. Before turning to those arguments I propose to briefly set out the circumstances of the offending and her Honour's sentencing remarks.

8 The appellant was in a spasmodic relationship with the victim's mother over a number of years. At the time of the offending, he was living with the victim's mother, the victim and the victim's younger brother. The appellant looked after the children when their mother was at work. The victim said that at times she regarded the appellant as a stepfather to her and her brother. At the time of the offending the victim was 8 years old, and the appellant 35 years old.

9 The offending was detected on 4 February 2010 when the victim's mother discovered photographs of the appellant and victim engaged in sexual acts on the appellant's mobile telephone.

10 This is what the mother said: 'I was absolutely shocked and devastated. I felt so sick to my stomach, it was appalling. I looked through and could see other photos on the phone. One was of [the victim's] vagina with [the appellant's] penis there, like it was about to go in. I was in such a state of shock, I didn't know what I should do.'

11 A short time later, she reported the matter to the school principal and then to the police. An investigation started and a VATE interview took place with the victim that day. A second VATE interview took place on 8 February 2010.

12 On 4 February 2010, the victim's mother telephoned the appellant in the present of investigating police, who tape recorded the conversation, which is known as a pretext conversation. Admissions were made during the pretext conversation but the appellant maintained that it only happened once and was not premeditated. While stating that he was very sorry the appellant also alleged that the eight year old child played a role in the sexual behaviour.

13 The police conducted a search of the appellant's mother's address and the address where the appellant lived with the victim, and seized a number of items. The seized items included the appellant's mobile telephone, which contained 19 images of the victim in indecent circumstances and engaged in sexual acts with the appellant; 7 images of the victim's mother performing oral sex on the appellant; a memory card that contained a pornographic video featuring a child; and a laptop and disc card that contained images of child pornography, some of which related to the victim.

14 The appellant faced the charges which are summarised below. While he pleaded guilty to all of these charges, the context and precise detail of the offending was a subject of considerable dispute at the plea. I now turn to a summary of the charges.

15 The appellant showed pictures to the victim of her mother performing oral sex on him (charge 1). This took place in the bedroom and the appellant told the victim not to tell anyone.

16 The appellant showed various items of pornography to the victim (charge 2). This charge includes all the descriptions of such conduct given by the victim in the VATE. Her Honour accepted that the appellant had shown the victim child pornography (see [17]-[28] of sentencing reasons).

17 Charge 3 relates to possessions of the items referred to in charges 13 and 14 and other items of child pornography involving unknown minors.

18 Charge 4 relates to the appellant telling the victim to suck his penis, while in the bedroom.

19 Two images were found on the appellant's computer of the victim's tongue touching the appellant's penis (charge 5). This took place in the master bedroom.

20 The victim used her hands to masturbate the appellant until he ejaculated (charge 6). She said that she knew how to do this because she had seen it on a video.

21 The appellant rubbed his penis against the victim's vagina, which she described as being uncomfortable. This took place in the bedroom (charge 7).

22 On two occasions the victim was directed to insert her finger into the appellant's urethra (charge 8). The appellant made a video of this and photographs were located on his phone and memory card disc. This took place in the bathroom and then in the bedroom.

23 The appellant penetrated the victim's mouth with his penis (charge 9). Two photographs of this were located on the appellant's mobile phone and on the memory card disc.

24 The appellant performed oral sex on the victim (charge 10). A photograph of this conduct was located on the appellant's memory card disc.

25 The appellant directed the victim to open her legs, and pushed her vagina open with his fingers (charge 11). The appellant photographed this conduct which was located in multiple locations on the appellant's mobile phone and on memory card disc.

26 The appellant penetrated the victim's outer labia with his penis (charge 12). Eight photographs of this conduct were located on the appellant's memory card disc and mobile phone.

27 The appellant photographed and videoed the victim when she was engaged in the sexual acts. He also took photographs of her naked that were of a sexual nature. In total, 19 images and 2 videos of the appellant were located on the appellant's mobile phone; 3 images on the appellant's computer; and 17 images on the memory card disc (charge 13).

28 Charge 14 covered the same conduct as that in 13, as well as the child pornography produced while committing other sexual offences charged in this matter, as well as 14 other photographs of the victim not covered by specific sexual offences.

30 Her Honour characterised the offending a 'very serious' and attended by aggravating factors, such as:

(i) The appellant 'groomed' the complainant by deliberately showing her pornographic images, including sexual acts of adults and children, including her mother, so that she would comply with his direction of sexual behaviour, which she did.[3] In relation to charge 1 her Honour said '... showing her the images of her mother and you engaged in sexual activity, it is very serious and, in my view, cunning for your own purposes'.[4]

(ii) The young age of the complainant, being 8 years of age (the appellant being 35 years of age when he committed the offences) and the position the appellant held in the household such that he had the trust of the complainant as well as authority over her.[5]

(iii) The offending was planned.[6] As her Honour said at [47] of her reasons for sentence:

These offences involve you, a man considerably older than her, deliberately taking advantage of her, and in the circumstances, acting in a predatory way, having planned and carried out the offences while the mother was working.

(iv) The appellant took part in the offending for his own sexual gratification.[7] At [48] of her reasons for sentence her Honour said:

You well knew what you were doing and you committed these offences solely for your own personal gratification.

31 In relation to the issue of insight, her Honour found that the appellant had not been candid about his offending and attempted to minimise his behaviour from the beginning,[8] including by alleging that the victim played a role in the sexual behaviour. In this context her Honour found that the appellant was 'not taking responsibility for what took place'.[9] Her Honour found that the appellant had limited insight to the extent of his criminal behaviour.[10]

32 As to the duration of the offending, defence counsel on the plea submitted that the sexual offences in charges 4, 5, 6 and 7 occurred on one occasion and that the offences in charges 8-12 took place at another time, within two weeks of the first incident. Her Honour dealt with this issue at [43] of her reasons for sentence:

On your behalf, Mr Matthews submitted that I ought not be satisfied there was more than two incidents that are the subject of these offences. He submitted that I ought not be satisfied that the material shows a number of acts over a number of days, rather than one or two days. Upon an analysis of the material, I am unable to be satisfied beyond reasonable doubt whether the offending took place over more than two days.

33 Her Honour also had regard to the victim impact statements filed in the proceedings and observed, at [50] of her sentencing reasons:

Clearly, your offending has caused an enormous amount of anxiety and suffering to the victim and her family.

34 In terms of mitigation her Honour had regard to the following matters:

➢ any rehabilitation will depend on the appellant successfully gaining insight by completing the sex offender course during his prison term;[11]

➢ the appellant had no relevant prior convictions and was sentenced as a person without prior convictions;[12]

➢ as the appellant had not served a period of detention or imprisonment before, any term of imprisonment served will be harder for him than a person who has done so;[13]

➢ the appellant had completed a number of courses while on remand and was employed as a peer educator at the Metropolitan Remand Centre;[14] and

➢ he will have a supportive family to assist him upon his release from prison.[15]

35 In addition to these matters her Honour had regard to the appellant's personal circumstances and to a psychologist's report prepared by Mr Kreutzer on his behalf.[16] It is also apparent from her reasons for sentence that her Honour had regard to the general sentencing principles of denunciation, general and specific deterrence and totality. At [68] her Honour stated:

I have taken into account the principles of totality when fixing each sentence and making orders for concurrency and cumulation.

36 Her Honour sentenced the appellant as a 'serious sex offender' in relation to charges 3 - 14 inclusive (see [2] and [72]).

37 I now turn to the grounds of appeal. The total effective sentence and the 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:[17]

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.

38 Counsel for the appellant urged the Court not to be unduly influenced by the serious nature of the offending and in that context relied on the following observation in FD v The Queen:[18]

We have read the victim impact statements prepared by A and B and by their mother. These are, as might be expected, deeply distressing and powerfully moving documents. It would be tempting, but wrong, for this Court to allow these sentences to stand simply because the appellant's conduct was so abhorrent that almost any punishment would be regarded as acceptable. That would not be consistent with this Court's obligation to ensure that the penalty meted out to the appellant for his crimes was, in general terms, consistent with the penalties imposed upon others who had behaved similarly.

39 Of course FD was a very different case to the one before us. In that case the appellant had been sentenced to 16 years' imprisonment with a non-parole period of 13 years. The appellant was resentenced to 12 years' imprisonment with a nonparole period of nine years.

40 In the present matter the appellant submits that the total effective sentence offended the principle of totality having regard to the following matters:

➢ her Honour's finding, at [43] of her reasons for sentence that she was unable to be satisfied that the offending took place over more than two days. It was submitted that the offending took place on two days within a two or three month period from December 2009 to February 2010;

➢ the appellant pleaded guilty at an early stage and did not suggest that what he did was anything other than very wrong; and

➢ the appellant had some insight into his offending and exhibited some remorse.

41 I am not persuaded that the total effective sentence imposed was manifestly excessive.

42 It is important to recognise that the individual sentences imposed are not subject to challenge. That fact, the circumstances of the case, and the modest cumulation ordered by her Honour tell against the appellant's totality submissions.

43 In terms of the circumstances of the case, there is no challenge to her Honour's findings that the appellant was motivated by sexual gratification; the appellant 'groomed' the victim and that the offending was planned. While the appellant confessed when confronted, the case against him was very strong and even in those circumstances he attempted to minimise his conduct and to shift the blame to his victim. He was not candid about his offending. At [60] of her reasons for sentence her Honour says:

Upon a consideration of those matters in Mr Kreutzer's report, I do not find that you have been candid about your offending. I find that you attempted to minimise your behaviour from the beginning. You were aware, during the pretext conversation, that you had been caught red-handed by the complainant's mother, and sought to minimise your behaviour to one incident, tried to prevent the father of the complainant finding out, who had every right to find out, and tried to persuade the mother of the complainant to keep it internal. In my view, you were trying to shield yourself from any repercussions, legally or otherwise.

44 It is also relevant that for sentencing purposes the appellant was a 'serious offender' for all charges from charge 3. It follows that pursuant to s 6E of the Sentencing Act 1991 (Vic) the sentences imposed for charges 3 - 14 inclusive were to be cumulative unless otherwise directed. These provisions have the effect of moderating the principle of totality. As their Honours McHugh, Gummow and Hayne JJ observed in their joint judgment in R H McL v The Queen:[19]

The need for judges not to compress sentences is especially important where the accused person is a 'serious sexual offender' within the meaning of s.16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s.16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. 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.

45 In the circumstances, I am not persuaded that the cumulation ordered was manifestly excessive.

47 The total effective sentence imposed on the appellant was 11 years' imprisonment with a non-parole period of 9 years. The non-parole period therefore represents 82% of the head sentence.

48 The relevant legal principles in relation to the fixing of a non-parole period have been set out in a number of reported authorities.[20] These cases make it clear that a non-parole period cannot be fixed by reference to some determined percentage of the head sentence. When fixing the non-parole period the sentencing judge is required to '... determine that minimum period for which in his judgment, according to accepted principles of sentencing, the prisoner should be imprisoned'.[21]

49 Whilst there is no 'usual' non-parole period, where the non-parole period is 'unusual' a failure to give reasons does not inevitably betoken error, but it invites appellate scrutiny.[22] A non-parole period may be regarded as 'unusual' having regard to, for example, a comparison with other cases; the facts of the instance case; or the course of the plea.

50 Counsel for the appellant submitted that the proportion between the non-parole period fixed and the total effective sentence imposed bespeaks error in light of the circumstances in this case. Paragraph 6.2 of the appellant's written submissions sets out a range of circumstances said to warrant the imposition of a shorter non-parole period. These circumstances include:

➢ the appellant's remorse and lack of relevant prior offending;

➢ the pleas of guilty which were extended at committal mention; and

➢ the appellant's acknowledgment that what he did was wrong.

51 It was submitted that the non-parole period imposed reflects an unduly negative view of the appellant's prospects for rehabilitation.

52 I am not persuaded that her Honour erred in the manner contended by the appellant. The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case. While her Honour did not specifically enumerate her reasons for the imposition of the non-parole period, such reasons may be inferred from her Honour's findings. In particular, her Honour found that the appellant had attempted to minimise his offending and that he had 'limited insight' into the extent of his criminal behaviour.[23] Her Honour was also guarded as to the appellant's prospects for rehabilitation:

In the circumstances in relation to all the offences, any rehabilitation will depend on you successfully gaining insight by completing the sex offenders course during your prison term.[24]

53 As is apparent from the carefully constructed reasons for sentence, her Honour had regard to all of the relevant circumstances in fixing the total effective sentence and the non-parole period, including the matters referred to by the appellant.

54 The total effective sentence and the non-parole period may be characterised as stern but they were reasonably open to her Honour having regard to all of the circumstances. 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.

[1] Compare R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 476-477 (McHugh, Gummow and Hayne JJ).

[2] DPP v I R J (Unreported, County Court of Victoria, Judge Douglas, 18 May 2011) [21].

[3] Reasons for sentence, County Court of Victoria, Judge Douglas, 15 December 2010 ('Reasons for sentence') [27]-[44].

[8] Ibid [22]-[25], [34], [37], [45] and [60].

[18] [2011] VSCA 8 [17] (Redlich and Weinberg JJA).

[20] See for example, DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85; R v Detenamo [2007] VSCA 160; R v Bertrand [2008] VSCA 182; R v Merritt [2008] VSCA 238.

[21] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 627 (Barwick CJ, Menzies, Stephen and Mason JJ).

[22] DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85, 94 [43] (Callaway JA).

[23] Reasons for sentence [22]-[25], [34], [37], [45], [60] and esp. [61].

I R J v The Queen [2011] VSCA 376

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Judgment (96 paragraphs)

I R J v The Queen [2011] VSCA 376 (22 November 2011)

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Cases Cited (3)