Court of Appeal (Vic)|2013-03-28|Before: Mr J, Priest JA, Weinberg JA

J B M v The Queen [2013] VSCA 69 (28 March 2013)

R v [J B M] (Unreported, County Court of Victoria, Judge Montgomery, 1 May 2012)

CRIMINAL LAW - Appeal against sentence - Appellant pleaded guilty to one count of sexual penetration of, and one count of indecent act with, his three year old niece - Representative counts - Total effective sentence of seven years' imprisonment with non-parole period of four years and six months - Whether sentence manifestly excessive - Offending involving gross breach of trust - Deficiencies in complainant's evidence owing to her youth - Evidence of complainant insufficient to enable prosecution to be brought - Appellant made full admissions when interviewed by police - Whether sufficient weight given to extent of cooperation, and fact of admissions made - Appellant entitled to 'demonstrable discount' greater than that ordinarily given for plea of guilty - Whether such discount not reflected in sentence ultimately imposed - Appeal allowed - Appellant resentenced to total effective sentence of five years and six months' imprisonment with non-parole period of three years and six months - , applied.

1 On 24 January 2012, the appellant, J B M, then aged 52, pleaded guilty in the County Court at Wodonga to two charges involving sexual offending against his niece, who was aged only three at the relevant times.[1]

2 On 1 May 2012, the appellant was sentenced as follows:

9 years' imprisonment, with a non-parole period of 7 years

3 On 31 October 2012, Priest JA granted leave to appeal on the following ground:

The total effective sentence, the individual sentences on charges 1 and 2, the non-parole period and the order for cumulation are each manifestly excessive.

4 The particulars of manifest excess relied upon were first that inadequate weight had been given to the fact that the applicant had voluntarily disclosed his offending, and secondly that the sentencing judge did not comply with current sentencing practices.

5 During 2009, the complainant would stay at her grandmother's house on days when her mother was working. The appellant was also staying at the house between September 2009 and approximately mid-December 2009.

6 In January 2010, the complainant woke her mother. She spoke of having 'lick[ed] the cock'. Upon being asked by her mother what she meant, she said 'I licked [J B M's] cock'. She also said that the appellant had dropped his pants and touched her between her legs with his hand. She added that all this had occurred at her grandmother's house. The complainant's mother reported the incident to police a month or so later.

7 On 22 February 2010, a VARE ('video and audio-recorded evidence') interview was conducted with the complainant. Not surprisingly, she could not particularise any specific incident. However, she said that the appellant had 'pulled his pants down' and 'put his body in his mouth'. When asked what she meant, she said 'back body and front body', and pointed to her groin.

8 On 22 March 2010, the appellant was interviewed by police. He at once admitted the offending. In doing so, he must have been well aware of the fact that the complainant would hardly have been able to put together a coherent account of anything that had been done to her.

9 The charges laid were said to be representative in nature, each relating to the first time the offending occurred and subsequent like occasions. Charge 1 involved the appellant having caused the complainant to suck his penis whilst they were in the bathroom. Charge 2 concerned his having licked the complainant's vagina while she was lying on his bed. That charge also took into account two further occasions of like conduct.

10 The appellant pleaded guilty to these offences at the earliest practical opportunity, at the committal mention on 10 March 2011. The plea was a complex one. It took place over three days. On 24 January 2012, it was adjourned to allow for a psychological report to be obtained. It was further adjourned on 15 February 2012 to allow for a psychiatric report to be prepared. There was then a further plea hearing on 20 April 2012 at which the appellant's mother and brother gave sworn evidence.

11 In relation to charge 1, it was uncertain how many times the appellant had sexually penetrated his niece, based upon his account of events. However, it was accepted that this had occurred on a 'handful' of occasions.

12 It was common ground that but for the appellant's admissions to the police, he could never have been prosecuted for this, or any other, offending involving a child. His niece was simply too young. She could not possibly have given evidence, in any admissible form, of what had been done to her.

13 There was evidence on the plea to the effect that the appellant comes from a large farming family. He is one of six children. It appears that he was the only one able to do the physical work required on the farm, and to care for his mother who had a number of ongoing health issues. The appellant's mother and brother gave evidence to that effect, and of the devastation wrought on the farm by the bushfires of 2009. As it happened, the appellant's father had died that same year.

14 As indicated, a number of medical reports were obtained. These included a psychological report from Mr Chris Kelly. He concluded that the appellant had intellectual difficulties, and that he was functioning at the 'borderline' range of intelligence. He considered him to have a vulnerable personality type. In his opinion, the appellant was depressed, socially immature and a loner. He suggested that a further psychological report, dealing with the appellant's intelligence level, be obtained.

15 That second psychological report, prepared by Mr Tony Jago, was then tendered upon the resumption of the plea hearing. Mr Jago found no evidence of any intellectual disability but described the appellant as having a significant learning problem. He concluded that the appellant's experience of the 2009 bushfires was likely to have had a significant impact upon him and may well have seriously impaired his judgment. He would not rule out the possibility that the appellant was suffering from a depressive mood disorder.

16 A further report, this time prepared by Dr Danny Sullivan, a well-known forensic psychiatrist, discussed the appellant's psychosexual history and his motivation for offending. He characterised the appellant as being of 'low-average' intellect, and noted that the appellant had difficulty in explaining his offending. He also observed that the appellant had a history of mood disorder, was of a vulnerable personality, and clearly socially inhibited. His opinion was that the appellant's shyness and various avoidance issues were likely to make imprisonment more burdensome for him.

17 At the invitation of the sentencing judge, the Crown put forward a MacNeil-Brown[2] range of between six and eight years as a total effective sentence, with a non-parole period of between four and six years. The defence submitted that any non-parole period should be closer to the lower, rather than the higher, end of the Crown range.

18 It was submitted during the course of the plea that the sentencing judge should accord significant weight to the fact that this matter would never have been prosecuted but for the fact that the appellant had made full and complete admissions to the police. Plainly, that submission was correct.

19 The appellant had sustained two prior convictions in 2002, at least one of which might be thought to be relevant. One conviction was for having been unlawfully on premises, and the other for wilful and obscene exposure in public. Both offences had been dealt with on the same day. On that occasion, he was sentenced in the Magistrates' Court at Wodonga to a 12 month community-based order, and required to complete a sex offender program, which he did.

20 The sentencing judge found that the appellant's admissions and his plea of guilty were indicative of genuine remorse, and were also of utilitarian value.[3] His Honour indicated his agreement with the prosecutor's submission that but for the appellant's cooperation with police, 'these matters could not have been brought to court'.[4] He added that that fact had to be taken into account in sentencing.[5]

21 He accepted that the hardship that the appellant's family would suffer as a result of his imprisonment meant that the burden of incarceration would weigh more heavily upon him, and that this should be taken into account as a mitigating factor.[6]

22 His Honour noted that counsel had not relied upon R v Verdins,[7] there being no causal link between any mental health condition and the appellant's offending. The appellant would have understood that what he was doing was wrong, and ought to have been able to desist from acting as he had.

23 The sentencing judge also had regard to the aggravating circumstances of this offending. He noted that it involved a significant breach of trust, and that both general deterrence and denunciation were of paramount importance. Moreover, specific deterrence was of some relevance given that the appellant had previously been convicted of an offence with a sexual character in 2002, and had been required to undertake a sex offender program at that time. Clearly, that program had had little effect upon him.[8]

24 At the same time, his Honour was conscious of the substantial hardship that the appellant and his family had endured in 2009. As previously indicated, he had played a pivotal role in running the family properties, and in caring for his mother. He had some prospects of rehabilitation given his otherwise good character, age and degree of family support.

25 In his submissions before this Court, counsel for the appellant submitted that the sentencing judge had proceeded upon the basis that the appellant 'deserve[d] credit' for having cooperated with police. He submitted that this did not go far enough. Mere 'credit', he submitted, did not adequately reflect the utility of the appellant's admissions, or the extent to which they warranted a discount on any sentence imposed.

26 It should be noted that the part of the judge's sentencing remarks specifically relied upon by the appellant is taken from his Honour's summary of the matters put on the plea. In context, the quote reads:

[Counsel] submitted that without your admissions you could never have been prosecuted and you deserve credit for that as it is difficult in these cases to obtain convictions when the victim is of such a young age.[9]

27 Later in his sentencing remarks, his Honour said:

In sentencing you, I have taken into account your plea of guilty, your cooperation with the police. I agree with the prosecutor's submission that but for such cooperation these matters could not have been brought to court. I have taken into account, as I have said, all the matters submitted by your counsel.[10]

28 His Honour's comments should be seen in light of the following exchange that occurred on the plea:

HIS HONOUR: In circumstances where these cases are always notoriously difficult [to] prosecute, and in [any] case would have been impossible without his admissions, and no doubt that is why you have got the bottom of that range, six with a four.

DEFENCE COUNSEL: It would appear so, Your Honour, yes. As Your Honour indicated, they are notoriously so. That's the extent I that would like to take that matter and I will not take the matter any further than that.[11]

29 Counsel relied upon this Court's decision in R v Doran.[12] In that case, the appellant had been interviewed by police in relation to possession of child pornography. About a month after that interview, the appellant telephoned the police officer who had questioned him, and disclosed that he had committed a number of other offences against children. He made complete admissions in respect of those offences. That resulted in a further 12 charges being laid against him. The sentencing judge observed that, had it not been for those admissions, it would have been 'most unlikely' that his offending would have been discovered.[13]

30 Buchanan JA, with whom Eames and Nettle JJA agreed, said:

Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.[14]

31 In essence, the appellant's argument before this Court was that his Honour's sentencing remarks demonstrated, without more, that his Honour had not awarded him the 'demonstrable discount' to which he was entitled, in accordance with the principles laid down in Doran. Moreover, it was submitted that the sentence actually imposed upon the appellant showed that no such 'demonstrable discount' had been applied.

32 In a further strand to his argument on manifest excess, the appellant argued that the sentence imposed below was not in line with current sentencing practices.[15]

33 In reply, the Crown noted that the discount to be awarded to offenders who voluntarily disclose their offending has been variously described as 'substantial',[16] 'considerable',[17] 'significant'[18] or 'demonstrable'.[19] It submitted that whichever adjective might be appropriate, the weight to be given to the appellant's having admitted his offending was diminished in circumstances where his crimes had, in fact, already been reported to authorities following what the complainant had said to her mother.

34 The Crown also noted that the sentencing judge had specifically taken the appellant's cooperation into account in his sentencing remarks. Further, the following exchange on the plea was said to demonstrate that the judge was fully aware of the value of the appellant's cooperation:

HIS HONOUR: I take it from reading the girl's statement, she has gone no further in her description of it beyond saying "He pulled his pants down and he put his body in his mouth", which as you say, in itself, wouldn't get the case anywhere.

PROSECUTOR: No, it wouldn't get to first base, Your Honour. We would not be here but for the admissions of the accused.[20]

35 The Crown next referred to the passage from the plea quoted earlier in these reasons in which the appellant's counsel confirmed that he did not submit that the entirety of the Crown's proposed range was excessive in light of the appellant's admissions.[21] It submitted that the appellant's argument before this Court amounted to an attempt to raise an argument not advanced on the plea.

36 The Crown next submitted that the sentence ultimately imposed could not be characterised as manifestly excessive. That conclusion was said to result from the following factors which aggravated the appellant's offending:

(b) the very great age difference between the appellant and the complainant;

(d) the appellant's prior criminal history, including his having undertaken a sex offenders program, apparently without success.

37 The Crown also noted that the charges to which the appellant pleaded guilty were representative in nature,[22] and that the maximum penalty on charge 1 was 25 years' imprisonment.

38 Finally, and in response to the appellant's argument concerning current sentencing practices, the Crown submitted that there were 'limitations inherent' in the use of sentences imposed in other cases. Further, the relevant Sentencing Snapshot was said to be 'of very limited utility' owing to the low sample of offences involving children under the age of ten.

39 Notwithstanding the stringent conditions that must be met before this Court will conclude that a sentence was manifestly excessive,[23] I have concluded that, in the somewhat unusual circumstances of this case, that ground is made out.

40 The sentencing judge correctly characterised the appellant's offending as 'appalling'.[24] His conduct involved a gross breach of trust, perpetrated as it was against a child who was only three years of age. General deterrence was obviously an important sentencing factor. So too was specific deterrence, for the reasons previously noted.[25]

41 That said, there were also some powerful mitigating factors present. The first such factor was the appellant's plea of guilty, which the trial judge accepted demonstrated genuine remorse. That plea also had significant utilitarian value. In addition, and perhaps more importantly, there was the fact that this prosecution could not have proceeded without the appellant's cooperation with the police, and the full admissions that he made.

42 It is true, in one sense, that the appellant's offences were already 'known to police'. As a matter of reality, however, they were 'known' only from a theoretical perspective. What the police had been told could not possibly have formed the basis of any prosecution. It was likely that the appellant would have appreciated that fact.

43 It may be correct that the appellant did not, in this case, tell the police anything that they did not already suspect. However, it is one thing to have been told by a child of three about something that may have happened. It is altogether another to be able to make any forensic use of such information. The appellant completed the picture. Indeed, he drew it. He did so voluntarily, and without any prevarication on his part. That, of itself, entitled him to a significant discount, greater than that which would normally be accorded to a plea of guilty.

44 The point can be illustrated by reference to DPP v C P D.[26] That was not a case where:

the offender had come forward voluntarily to disclose offences which would otherwise have been unknown. Rather, CPD made his admissions only after being required by police to attend for a formal interview and to respond to the serious allegations which the victims had made in their VATE interviews.[27]

45 This Court nevertheless held that C P D's admissions and his pleas of guilty 'entitled him to a significant sentencing discount',[28] though, not, in the circumstances, a 'really big discount' of at least 50 per cent.[29]

46 In Ryan v The Queen,[30] McHugh J said, summarising the effect of the decision of the New South Wales Court of Criminal Appeal in R v Ellis:[31]

[T]he degree of leniency to be shown for the disclosure of unknown offences will vary according to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure.[32]

47 In the present case, as in Doran, the appellant 'provided the prosecution with all the evidence necessary to convict him'.[33] There was not the slightest chance that these offences could have been proved without his having cooperated and made these admissions.[34] In addition, his level of cooperation was highly relevant in assessing the degree of his remorse, and in evaluating the weight to be accorded to specific deterrence.

48 Further, public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed. Offenders should be encouraged, so far as practicable, to admit their crimes and, in so doing, ensure that they can be successfully prosecuted.[35] That policy must surely be of even greater importance in cases involving offending against very young children who would not be capable of giving evidence in court.

49 In my view, and notwithstanding the gravity of the appellant's offending, both the total effective sentence and the non-parole period reveal that inadequate weight must have been given to the appellant's level of cooperation, and the importance of his admissions. The authorities make it clear that he was entitled to a 'demonstrable discount',[36] which, in my opinion, is not adequately reflected in the sentence imposed. That sentence might have been within range, and appropriate, had there simply been a plea of guilty, without the additional mitigating factors that were present.

50 In the circumstances it is unnecessary to say anything very much about the appellant's point regarding current sentencing practices. I have, however, considered what the appellant said in relation to this matter. The table of cases in C P D upon which he primarily relied is of some utility.[37] However, there is a particular difficulty in comparing the appellant's sentence with those imposed upon the offenders in that table. In very few of those cases did the offender qualify for a Doran discount.[38] That makes the quest for commonality somewhat futile.

51 Doing the best that I can, I would allow the appeal and resentence the appellant as follows:

7 years and 6 months' imprisonment, with a non-parole period of 5 years

[1] The indictment covered a short period during which the complainant was aged only two, but it seems to have been accepted that the offending occurred shortly after she turned three.

[3] DPP v [JBM] (Unreported, County Court of Victoria, Judge Montgomery, 1 May 2012) [13] ('Sentencing Remarks').

[9] Sentencing Remarks [11] (emphasis added).

[11] T11 (24 January 2012) (emphasis added).

[12] [2005] VSCA 271 ('Doran').

[15] Citing the table of cases set out in DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 552-8 (Maxwell P, Redlich JA and Robson AJA).

[16] Ryan v The Queen (2001) 206 CLR 267.

[17] See, eg, R v Meggett [1999] NSWSC 606; (1999) 107 A Crim R 257, 263 [37]-[38] (Wood CJ at CL).

[18] See, eg, R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ).

[19] As in Doran [2005] VSCA 271.

[23] See, eg, DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634; Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA).

[27] Ibid 541 (Maxwell P, Redlich JA and Robson AJA).

[32] Ryan (2001) 206 CLR 267, 272 [12].

[33] Doran [2005] VSCA 271, [14] (Buchanan JA).

[34] Particularly in light of the complainant's response to the final question posed to her in the VARE interview: Q: 'And you told me the truth today?' A: 'No'.

[35] See, eg, R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ).

[36] Or its equivalent: see the authorities cited above nn 16-18.

[37] Together with sentences imposed in cases after C P D.

[38] See, eg, R v Garratt [2002] VSCA 160.

J B M v The Queen [2013] VSCA 69

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Judgment (98 paragraphs)

J B M v The Queen [2013] VSCA 69 (28 March 2013)

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Cases Cited (7)