Lane v The Queen [2017] VSCA 289

1 On 30 March 2017, the applicant pleaded guilty to three charges of indecent assault upon a male person[1] and two charges of procuring an act of gross indecency with a person under 16.[2] On 10 May 2017, he was sentenced as follows:

Procuring an act of gross indecency with a person under 16 years.

Procuring an act of gross indecency with a person under 16 years.

s 6AAA statement:

Applicant had already been placed on the Sex Offenders Register at a 2006 plea hearing.

Sentenced as a 'serious sexual offender' pursuant to s 6B(2)(a) of the Sentencing Act 1991

Declared a serious sexual offender for charges 1-5.

2 The applicant now seeks leave to appeal against his sentence. For the reasons that follow, we would refuse leave to appeal.

3 The victim was born in March 1967. The applicant and the victim met at an electronics fair in late 1979. The victim was 12 years old at the time, and the applicant was 33 years old (he is now 71 years old). The applicant had a stall at the fair. He offered the victim free items and invited him to his home to see some electronic equipment. When the victim visited the applicant's home, the applicant showed him a photography lab and told the victim he could earn money by posing naked for photos.

4 In the early 1980s, the victim visited the applicant's home, and the applicant complimented the victim on his body. The applicant later pulled down the victim's pants and touched the victim's penis with his hand (Charge 1). This charge was a representative count of three occasions of similar conduct ― including an occasion in February 1980, when the applicant engaged in the same conduct while taking the victim on a car trip and another occasion in 1980 when the victim visited the applicant and the applicant masturbated him.

5 On the same day as the conduct in the representative count in Charge 1, the applicant put his mouth on the victim's penis until the victim ejaculated (Charge 2). This charge was also a representative charge, which covered similar conduct on the same day as the car trip, and on another day in 1980.

6 On the same day as the car trip, the accused put his finger in the victim's anus and told him it would help the victim achieve orgasm. The accused left his finger in the victim's anus until the victim ejaculated (Charge 3). The victim told the applicant that he felt 'weird'. The applicant then drove the victim back to his place.

7 In early 1981, the victim visited the applicant's home, and another boy was there when he arrived. The applicant took both the boys into a caravan and told them to place their mouths on each other's penis (Charges 4 and 5). The applicant took photos of them doing this, and also photographed them in various other sexual poses. Charge 4 relates to procuring an act of gross indecency by directing the victim to take another person's penis in his mouth. Charge 5 relates to the act of gross indecency of directing the victim to put his penis in another person's mouth.

8 When the victim was almost 14 years of age, the applicant stopped all contact with him.

9 The applicant had no prior convictions, but has three relevant subsequent convictions. In 1996, he was convicted on 13 charges of indecent assault on a male person and one charge of gross indecency and was sentenced to 12 months' imprisonment on each charge with six months suspended for 12 months. In 1998, he was convicted on six charges of indecent assault on a male person, one charge of buggery, four charges of indecent assault and one charge of common assault, and was sentenced to three years and six months' imprisonment with a non-parole period of 15 months. In 2006, he was convicted of four charges of indecent assault on a male person and sentenced to eight months' imprisonment on each charge, wholly suspended for two years.

The judge's sentencing remarks[3]

10 The judge began by noting that the victim was aged between 11 and 12 at the time of the offending, and that the applicant had exploited the victim's interest in electronics and radio equipment in order to sexually abuse him.[4] He noted that the applicant had assured the victim that what he was doing 'was not bad', when he knew this was not the case.[5] The sentencing judge described the abuse as 'degrading'[6] and 'truly abhorrent'.[7] The sentencing judge considered the gravity of each of the charges to be 'palpable' and that they revealed 'deep depravity'.[8] He described the applicant's moral culpability as 'very high', noting the planned, predatory and persistent nature of his conduct.[9]

11 The sentencing judge noted that the offending had had a considerable impact on the victim. In his victim impact statement, the victim said that the applicant had taken away his childhood and caused him to become scared and withdrawn.[10] He had been unable to complete his studies and had had difficulty maintaining employment and relationships. He found it difficult to trust people. He felt he would never recover from what the applicant had done to him.[11]

12 The sentencing judge noted the applicant's subsequent offending.[12] He stated that the applicant was to be dealt with as a serious sexual offender on each of the five charges, and that it was not suggested that a penalty less than imprisonment was appropriate.[13]

13 Counsel for the applicant submitted that the sentence of imprisonment ought be wholly suspended on the basis of 'powerful mitigatory matters'.[14] Chief among these was that the applicant was said to have developed insight into his offending during his previous terms of imprisonment, and that this insight had led to 'deep and continuing remorse', and the development of practical strategies which had prevented him from reoffending. The sentencing judge accepted that it appeared the applicant had not offended since 1988 or 1989.[15] The sentencing judge had a psychological report and a number of testimonials before him, including the evidence of Associate Professor Brooke-Cowden which he considered 'very impressive'.[16] He noted the skills the applicant had developed in prison[17] and his support of his terminally ill neighbour,[18] and accepted that the applicant had returned from prison 'a much changed man'.[19]

14 The sentencing judge emphasised that he did not give 'mere lip service' to these mitigatory matters.[20] He was 'optimistic' about the applicant's future prospects and considered that little needed to be done to further his rehabilitation.[21] The sentencing judge did not believe that the applicant's support for his terminally ill neighbour met the test for exceptional circumstances allowing for mitigation of his sentence due to harshness.[22] The sentencing judge did consider the delay in prosecution and the applicant's early guilty plea as significant matters in mitigation.[23] He further noted that the applicant had not breached his previous suspended sentence.[24]

15 The sentencing judge stated that he was also required to consider the gravity of the offences, the need for deterrence, and the impact of the crimes upon the victim.[25] He noted that, because the applicant was a serious sexual offender, the sentences for multiple crimes must be cumulated unless otherwise ordered, but that he did not ignore the principle of totality.[26]

16 The sentencing judge then considered two relevant cases. He began with Stalio v The Queen,[27] which sets out principles for dealing with offences which were decades old. He observed that this Court considered a sentence of three years' imprisonment to be within the range for conduct involving a football coach fondling the genitals of two boys under the age of 12.[28] The sentencing judge also considered the more recent decision of Morris v The Queen,[29] where this Court determined that a sentence of six years' imprisonment with a minimum of four years' imprisonment was within the range when a school teacher had, over a six year period, fondled the genitals of six students and had some students touch him. The offender in that case had previous convictions, but was remorseful and was considered to be rehabilitated.[30] The sentencing judge observed that as a teacher, the conduct of the offender in Morris was in some respects more serious than the case before him. However, he also noted that the applicant's sexual conduct was more serious.[31]

17 The sentencing judge stated that Morris demonstrated that the 'yardstick' set by this Court, in cases involving historic sexual offending by offenders who had since reformed, was imprisonment.[32] He stated that a sentence of imprisonment was inevitable and that the proper exercise of his discretion, taking all of the circumstances into account, allowed him to suspend some but not all of the sentence of imprisonment.[33] The sentencing judge did not order full cumulation, as he considered that to do so would result in a crushing sentence.[34] He stated that the orders for cumulation were to give effect to the different crimes committed, and to Parliament's intention that the applicant be dealt with as a serious offender.[35]

18 The sentencing judge then sentenced the applicant as set out above.

19 The notice of appeal advanced three grounds of appeal, as follows:

Ground 1: The individual sentences, the total effective sentence, and the orders for cumulation are manifestly excessive, particularly in view of the following matters:

(b) the fact that some separately charged acts were preparatory in nature;

(d) the absence of a need for community protection;

(e) the minimal weight to be given to specific deterrence;

(g) the five-year or two-year maximum penalties for each offence;

(h) the previous gaol terms served in relation to similar offending at a similar time;

(i) the applicant's accepted rehabilitation and 27 years without offending;

(j) the less developed community understanding of the harmfulness of the offending at the time of the offences;

(k) the carer's role he was performing at the time of the plea for the terminally ill [neighbour]; and

Ground 2: The learned sentencing judge erred in concluding that the only sentence capable of giving effect to denunciation and general deterrence required the immediate confinement of the applicant**.**

Ground 3: The sentencing judge erred in ordering five months' cumulation on charge 5 in all the circumstances.

20 As will appear, a fourth ground was added, by leave, in the course of the hearing.

Was the sentence manifestly excessive? (Ground 1)

21 To succeed on the ground of manifest excess, the applicant must establish that the sentence that was imposed was wholly outside the range of sentencing options available to the judge. This is a difficult task. If the sentence is within range, it does not matter that another judge might have imposed a different sentence.

22 The respondent emphasises that the offending in this case was serious, and submits that the sentencing judge appropriately balanced the mitigating factors present against the gravity of the offending. On the other hand, the applicant submits that the individual sentences, the total effective sentence, and the orders for cumulation are manifestly excessive.

23 The respective submissions addressed the following specific matters:

24 On the plea, prosecuting counsel accepted that the applicant had completely and permanently reformed, and had 'deep and genuine' remorse. The applicant pointed to evidence of his participation in sex offender programs. In particular, he noted that he had joined the 'Child Abuse Prevention Service Offenders' Group' in 1997 without any court compulsion, and that he had remained a part of the group as a facilitator and helper.

25 The applicant also drew the Court's attention to his response to the victim impact statement. He submits that it is 'difficult to imagine a deeper apology' and that the document demonstrates 'a complex and intelligent response to the impact of his offending'.

26 The respondent submits that the applicant's rehabilitation and reform were properly taken into account by the sentencing judge. Although these were significant sentencing considerations, they were not the only considerations.

27 The applicant submits that he has been subject to criminal prosecution over a period of 20 years, and that this should be considered a mitigating factor. He argues that it should be taken into consideration that he was sentenced on four occasions in two States (not including appeal hearings) for offending over the same period as the matters before this Court. He submits that 'again and again' his conduct between 1967 and 1989 has been denounced and punished, despite his rehabilitation. He says that there is 'more than one way to crush a person' and that repetitive prison terms have meant that time and time again he has had to make a fresh start.

28 The respondent emphasises that each of these prosecutions was legitimate, and was the result of further offending by the applicant coming to light. The respondent submits that the repeated and protracted prosecutions are a result of the nature of the applicant's offending. The respondent observed that the interruption to the applicant's rehabilitated life was a natural consequence of the type of offending involved. Children often do not complain about abuse until many years later.

29 The applicant also notes that the complainant signed his statement to police on 3 November 2011, but that the charge sheet was not signed until 10 May 2016. The respondent accepts that there was a significant delay in the applicant being charged, but notes that the applicant did not become aware that he might be prosecuted until mid-2015, and submits that this lessens the mitigatory nature of the matter.

30 The applicant submits that powerful character evidence was led on his behalf. He particularly notes the evidence of Associate Professor Geoffrey Brooke-Cowden, concerning the applicant's role in the community, his devotion to his friends and neighbours, and his life after his term of imprisonment. The applicant also states that he developed writing skills in prison which have allowed him to maintain employment.

31 The respondent acknowledged this evidence, but emphasised the gravity of the offending.

32 The applicant submits that his terminally ill neighbour is totally dependent upon him, and that she will likely be transferred to hospice care if he is incarcerated. The applicant submits that this is a very powerful mitigatory matter, although he does not contest the sentencing judge's finding that it did not meet the test for 'exceptional circumstances'.[36]

33 The respondent submits that, absent a finding of exceptional circumstances, this matter is not powerfully mitigatory. The respondent submits that the matter was properly taken into account in the judge's findings about the applicant's character and reformation.

34 The applicant accepts that he knew his conduct towards the victim was wrong, and he has acknowledged the deep harm that he caused. However, he submits that, at the time of the offending, it was not understood how deeply sexual offending harmed children. The applicant acknowledges that Stalio[37] allows current community understanding to be taken into account when assessing historical sexual offending against children. However, he submits that there should be some allowance for mitigation in the assessment of his moral culpability on the basis of community attitudes at the time of the offence.

35 The respondent submits that it is difficult, and potentially impossible, to extrapolate an individual person's attitude by reference to general community attitudes, and that this issue does not usefully advance the understanding of the applicant's moral culpability in this case.

36 In our opinion, the sentence imposed on the applicant was within the range reasonably open to the judge in the circumstances of the case.[38] The sentencing judge had regard to all of the matters relied on by the applicant in the first ground of appeal, and it is clear from the reasons - and the sentence imposed - that he appropriately balanced them against the seriousness of the offences and other sentencing considerations.

37 First, the sentencing judge accepted that the applicant had reformed and was remorseful.[39] In those circumstances, the judge observed that there was little if any need for specific deterrence, nor did the protection of the community play as significant a role in sentencing the applicant as might have been the case (despite the fact that the applicant fell to be sentenced as a serious sex offender).[40]

38 The sentencing judge accepted that there had been delay in the investigation and prosecution of the applicant, and acknowledged that this delay operated as a mitigatory factor.[41] The judge also set out in some detail other offending of the applicant and the sentences he received in 1988, 1996 and 2006.[42] He noted that they were not prior convictions but were nonetheless important in the sentencing synthesis.[43] It is clear that the judge had in mind the sentences that the applicant had served for offences committed around the same time as the current offences when determining an appropriate sentence in the present case.

39 As noted above, the judge considered the character evidence of Associate Professor Brooke-Cowden to be 'very impressive'.[44] His Honour also noted that the applicant had used the abilities and skills (including writing skills) that he had developed in prison 'for the benefits of those at the margins in our society especially in remote indigenous communities.'[45] The judge also took into account the care and consideration shown by the applicant to his sick neighbour.[46]

40 As to prevailing community attitudes at the time of the offending, the applicant had the benefit of being sentenced in accordance with the then-applicable maximum penalties. As his written case properly acknowledged, the applicable maxima 'now look grossly inadequate'. As far as moral culpability is concerned, the most important factor was, as the judge noted, that the applicant himself knew that his offending was wrong.[47]

41 True it is that there were many mitigatory factors which the judge weighed in the balance. But, as he must, the judge also gave weight to other sentencing considerations such as the gravity of the offending, the effect on the victim, general deterrence and denunciation of the applicant's conduct. Having noted that the circumstances of the offending only had to be stated for the 'depravity and seriousness to be revealed',[48] the judge said:

Ordinary members of our community would be bewildered that you could do such things to young children. The abuse of trust is significant, as is the conduct of stringing the victim along with promises of radio equipment such as the walkie-talkie. Your conduct was planned, predatory and persistent. Your moral culpability is very high. You knew what you were doing was base and wrong but you persisted and increased the seriousness in the sense of bringing another boy into what was your depraved behaviour.[49]

42 We respectfully agree. The applicant's offensive conduct was deplorable and must be condemned. That the applicant has been able to rehabilitate himself and he is remorseful is of course relevant, but his rehabilitation and remorse do not make up for the harm that he has caused. The gravity of the offending had to be recognised in the sentence. It is very important that the applicant be punished, that others be deterred and that it is made very clear that offences such as those committed by the applicant will attract serious punishment. A custodial sentence was well within range in this case. By suspending half of the sentence, the judge reflected the force of the many mitigatory matters in favour of the applicant (including the applicant's rehabilitation and the sentences he had already served).

Was an immediate term of confinement required? (Ground 2)

44 The applicant submits that a suspended sentence was capable of complying with the requirements of s 5(1) of the Sentencing Act 1991. That section provides that the only purposes for which sentences may be imposed are:

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or

(b) to deter the offender or other persons from committing offences of the same or a similar character; or

(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or

(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

(f) a combination of two or more of those purposes.

45 The applicant points to a number of authorities which he submits demonstrate that a suspended sentence can convey denouncement, and will punish and deter offenders.[50] He further notes that he was sentenced as a 70-year-old man, that the offending occurred 37 years ago, and that he has been rehabilitated while being punished for other offences.

46 The respondent contends that this is a mere restatement of Ground 1, and relies on the submissions made above in respect of it. On the hearing of the application for leave to appeal, the applicant accepted that his second ground was a manifestation of his first ground.

47 We detect no error on the judge's part. In our opinion, the sentencing purposes were not infringed when the judge imposed the sentence that he did. For the reasons we have given in respect of Ground 1, this was serious offending and, in the circumstances of this case, a prison term was within range. That a suspended sentence might have been imposed in other cases does not mean that that was the only sentencing option that was appropriate in those cases. Far less does it establish that a wholly suspended sentence should have been imposed in this case. Indeed, as we have said in relation to his manifest excess ground, the suspension of part of the sentence reflected that full weight was given to the mitigating factors.

Did the judge err in ordering five months' cumulation on Charge 5? (Ground 3)

48 The applicant submits that the facts giving rise to Charges 4 and 5[51] do not justify cumulation of five months on Charge 5, given that the two charges involve the same factual circumstances.

49 The respondent submits that the cumulation on Charge 5 was a legitimate exercise of the sentencing discretion, involving two separate penetrations each involving the two boys.

50 In our opinion, the applicant has failed to establish that the judge erred in respect of the orders for cumulation. Whilst the offending in respect of Charges 4 and 5 arose from the same incident, the two charges were separate offences. Moreover, the applicant stood to be sentenced as a serious sexual offender with cumulation sanctioned by the legislature.[52] There was no discernible error on the part of the judge.

Did the judge take into account an irrelevant consideration? (Ground 4)

51 In the course of argument in support of the manifest excess ground, counsel for the applicant drew attention to the following paragraphs of his Honour's reasons:

The victim in this case and indeed the other unknown victim are not the only ones who suffered sexual abuse at your hands in and around those years. You were not caught and dealt with for any other matters before this offending and in that sense these other crimes are not prior convictions. They are, nonetheless, important in the sentencing synthesis.

In 1996 you were sentenced for 14 like charges of sexual offending against young male victims. The offending occurred between 1967 and 1977. Ultimately on appeal to the County Court from a Magistrates' Court sentence you received a 12 months sentence of imprisonment, six months of which were suspended for 12 months.

On 22 January 1988 you were convicted of six charges of indecent act on a male, one charge of buggery and four charges of indecent assault and on charge of common assault. These offences occurred between 1970 and 1988. You were sentenced to three years and six months with a non-parole period of 15 months by Judge Crosley of this court. During the currency of that sentence you were charged with offences involving two of the same victims which occurred in New South Wales. You were sentenced in New South Wales in 1988. The details are not clear to me about that.

On 11 December 2006 you were convicted of four charges of indecent assault on a male person and were sentenced to 18 months which was wholly suspended for two years. The final sentence was imposed by Judge Hannan of this court and I have had the benefit of her sentencing remarks. The offences were committed between 1972 and 1974 on two young males. They appear to me to be opportunistic in the sense of driving the victims and touching them while they were in the car. Although one of them on was on trip where you stayed overnight.

Thus on any analysis you were a serial sex offender sexually abusing young boys from approximately 1967 when you were just 21 years old up until 1988 when you were in your 40's. For a good deal of this time you were a trusted member of the community as a police officer. This other relevant and serious offending cannot be overlooked.

Your crimes that are before me reveal planning with photographic equipment at the ready. There were elements of cunning as you worked on the victim's childlike interest to keep him coming to see you and you used your power over him to emphasise that he must keep the sexual abuse a secret which he, in fact, did for over 30 years. The other offences exposed that your sexual depravity and abuse of trust were ingrained behaviours.

Another aspect of your other offending is that by reason of the serious offender provisions of the Sentencing Act you are to be dealt with as a serious sexual offender for each of the five charges before me, that is if I am to impose sentences of imprisonment for those crimes. No-one suggests that a penalty less than imprisonment is appropriate.[53]

52 As the last paragraph makes clear, his Honour was here describing a series of separate sexual offences committed over a period of more than 20 years. As his Honour also made clear, however, at the time of the offending the subject of this application, he had not been charged with any other offence.

53 Counsel for the applicant submitted that the judge had not explained why he regarded the other offences, both before and after this offending, as relevant to the sentencing task. Counsel submitted that his Honour had erroneously inflated the sentence to take account of that other conduct.

54 In response to questions from the Court, counsel for the Director properly conceded that other conduct of a similar kind, involving different victims, had no relevance to the sentencing judge's assessment of the objective gravity of this offending, or of the applicant's moral culpability. Its only possible relevance, counsel suggested, was in demonstrating the applicant's paedophilic tendencies.

55 In the light of those submissions, counsel for the applicant sought and was granted leave to add an additional ground, which was expressed as follows:

The learned sentencing judge took into account an irrelevant consideration when he considered the 'relevant and serious' previous offending and attributed this offending important in the sentencing synthesis, in the absence of a need to rebut a submission that the instant offending was isolated.[54]

56 With great respect to the sentencing judge, we are unable to see why his Honour regarded the other conduct as relevant to this sentencing task. Plainly enough, the applicant was not to be punished for any of that other conduct and the questions of specific deterrence and community protection were to be assessed as at the date of sentence, not on the basis of other conduct engaged in by the applicant years earlier. There was no suggestion advanced on the plea that these offences were isolated, or out of character. Had there been, reference to the other conduct might have been appropriate in rebuttal.

57 In the event, however, we are quite satisfied that the reference to the other conduct had no bearing on the sentencing decision. It is perfectly clear from his Honour's detailed reasons that he assessed both the gravity of the offences and the applicant's moral culpability by reference to this conduct, against these victims, and on no other basis. For reasons already given, this was a lenient sentence in the circumstances, demonstrating that his Honour gave appropriate weight to the strong matters relied on in mitigation.

58 The application for leave to appeal will be refused.

[1] Crimes Act 1958 s 68(3A), as amended by the Crimes (Amendment) Act 1967. This section was later repealed by Crimes (Sexual Offences) Act 1980 s 6. Charges 1 and 2 were representative counts, each taking in three separate occasions of similar conduct.

[2] Crimes Act 1958 s 50(1), as amended by the Crimes (Sexual Offences) Act 1980. Subdivisions (8)-(8F) later substituted by s 3 of the Crimes (Sexual Offences) Act 1991.

[3] DPP v Lane [2017] VCC 555 (Judge Mullaly) ('Reasons').

[27] (2012) 46 VR 426 (Stalio).

[29] [2016] VSCA 331 (Morris).

[36] See Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589.

[37] (2012) 46 VR 426.

[38] Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[50] See DPP v Buhagiar (1998) 4 VR 540, 547; DPP (Cth) v Carter (1998) 1 VR 601, 607-8; DPP v Malikovski [2010] VSCA 130, [37]-[38].

[51] See [7] above.

[52] Section 6E Sentencing Act 1991.

[54] On the hearing of the application for leave to appeal, leave was granted to add this ground.