M P v The Queen [2011] VSCA 78

2 A plea was conducted and the appellant was sentenced to be imprisoned to a term of six months on each of three counts of an indecent act with a child, nine months on each of two counts of an indecent act with a child, twelve months on one count of an indecent act with a child, four years on one count of incest, five years on one count of incest, six years on one count of incest, seven years on each of four counts of incest and eight years on one count of incest. With a measure of cumulation, a total effective sentence of 12 years was produced. The sentencing judge fixed a minimum term of nine years and six months' imprisonment before the appellant was to be eligible for parole.

3 The appellant has been given leave to appeal against the sentence by a single judge of this Court.

4 The victims of the offences were a boy and a girl, the children of the appellant's wife from an earlier relationship. The offending against the boy was committed when the victim was between the ages of 12 and 16 years; the offending against the girl occurred when the victim was aged about 11 years.

5 In March 2004 the appellant commenced a de facto relationship with the mother of the victims of the offences. The appellant married the mother of the children on 10 July 2004. Not long after the marriage, the Department of Human Services became aware of allegations that the appellant had sexually abused a nephew of his wife. As a result, the Department required the appellant to move out of the house.

6 In December 2004 the appellant was charged with offences against the nephew when the victim was aged nine years, which led to his conviction on three counts of an indecent act with a child under the age of 16 years. On 28 February 2006, the appellant was sentenced by Judge Leckie to be imprisoned for a term of 24 months with a minimum term of 12 months' imprisonment. The allegation of the offences the subject matter of this appeal led to the revocation of the appellant's parole and the appellant served the balance of the sentence imposed by Judge Leckie.

7 The appellant was released on parole in February 2007, and at about that time allegations were made of offences against his wife's children.

8 The circumstances constituting the commission of the offences may be shortly stated.

9 The appellant took both children to the Horsham swimming pool. He placed his hands on the boy's penis over the top of his shorts a number of times and then put his hand down the shorts for a moment (count 1).

10 On the same day, the appellant touched the boy on his penis over his shorts and then pulled down his shorts and rubbed his penis (count 2).

11 While watching a DVD with both the children, the appellant put his hand down the boy's pants and pulled out his penis (count 3).

12 On another occasion when he was watching a DVD with the male complainant and a friend of his, the appellant was lying on a bed between the two boys. He began touching the male complainant's penis over his clothes and then he put his hand inside the complainant's pants and began pulling at his penis (count 4).

13 The appellant took the boy and a young friend camping. They slept in a tent and at night the appellant placed the male complainant's penis in his mouth (count 5).

14 In the course of his employment as a delivery truck driver, the appellant took the boy with him in the truck. He rubbed the boy's crotch while he was driving (count 6).

15 After the appellant left the family home, his wife brought the children to visit him. On one occasion after the boy had been helping him clean out a shed, the appellant lubricated his penis with saliva and forced it into the boy's anus, causing him a great deal of pain (count 7).

16 On another occasion when the appellant was cleaning his shed with the boy, he required the boy to suck his penis to the point of ejaculation (count 8).

17 After the male complainant's 16th birthday, he had a dispute with his mother and wished to move out of the home. At the appellant's insistence, the boy came to his house to discuss the question of his moving out of home. When he arrived, he found the appellant lying on a couch wearing nothing but a dressing gown. The appellant hugged the boy and started whispering into his ear about not moving out of home and upsetting his mother. He then took the boy into his bedroom and got into bed naked. He made the boy get into bed and take off his clothes. The appellant played with the boy's penis and put it into his mouth. The appellant then rolled the boy over and penetrated his anus with his penis (counts 9, 10 and 11).

18 When the appellant was at home with his stepdaughter, he called her into his room and rubbed her vagina with his fingers over her clothing (count 12).

19 When the appellant was still living with his wife and children, the female complainant came home from school. The appellant called her into his bedroom, pushed her on to the bed, pulled down her pants and penetrated her vagina with his penis causing her pain (count 13). On another occasion at the same house, the appellant called the girl into his bedroom, pushed her on to the bed, pulled down her pants and again penetrated her vagina with his penis (count 14).

20 Victim impact statements revealed the significant psychological effects, which the appellant's conduct caused to his victims and which were likely to be lasting.

21 The appellant is 40 years' old. He had an unsettled childhood, for his parents separated on several occasions. The appellant was educated to year 10, but suffered the disadvantage of a speech impediment, which caused him considerable embarrassment. After leaving school, the appellant completed a chef's apprenticeship in Adelaide and thereafter worked as a chef. He has a daughter by a previous relationship.

22 The appellant had prior convictions for false pretences and making a false report to police.

23 In the course of the plea a report by a psychologist was tendered, in which he said:

In my opinion [the appellant] would be unquestionably diagnosed as a hebephile. In my opinion he would also attract the diagnosis of paedophilia because of the offending for which he has already served a sentence and because his offending against the female victim was on the borderline of paedophilia and hebephilia.

The appellant admitted to the psychologist that he was sexually attracted to his stepson. The psychologist expressed the view that the appellant could be described as deviant and was in need of treatment.

Mr [MP] is a man who reports a history of speech, language and learning difficulties who comes from a disadvantaged background has rather poorly developed social skills. He reports a history of being subject to sexual abuse and of several failed intimate relationships and therefore seems capable of forming only ambivalent emotional attachments. Despite this, there is no evidence that Mr [MP] is suffering from a depressive or psychotic illness.

25 Counsel for the appellant sought to rely upon affidavits recently sworn by the appellant and his solicitor deposing to the appellant's ill health. The appellant suffers from anal bleeding, a painful cyst in a testicle and back pain from an accident. The appellant underwent a hernia operation in March 2010.

26 The respondent has had no opportunity to respond to the affidavits. In any event, it does not appear that the affidavits make any significant addition to the information before the sentencing judge.

1. The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
2. The learned sentencing judge erred in failing to place sufficient weight upon the fact that the applicant's voluntary confessions to these offences resulted in his parole being cancelled and the applicant being required to serve the whole of the head term of the sentence imposed upon him by Judge Leckie on 28 February 2006.
3. The learned sentencing judge erred in failing to place sufficient weight upon the following matters going in mitigation:

(i) whilst the offending which came before Judge Leckie was relevant, it was not in fact a prior conviction and apart from an irrelevant dishonesty conviction in South Australia the applicant was a person of good character;

(ii) the applicant's voluntary admissions of pleas of guilty;

(iii) the applicant would spend his custody in protection, as he had previously, with little familial contact;

(iv) the applicant came from a somewhat deprived background including a history of speech, language and learning difficulties and poorly developed social skills;

(v) the applicant was himself the subject of sexual abuse as a child and as a result his ability to establish stable mature adult emotional relationships was compromised;

(vi) the applicant has led a hard-working life as a chef; and,

(vii) the applicant is aged 38 years and as such is still a relatively young man who faces the prospect of being in custody [for] a large part of his middle age.

28 In support of the first ground, counsel for the appellant invoked sentencing statistics for the period between 2002 and 2007, which revealed that eight years was the highest sentence for an individual count of incest and 95 per cent of total effective sentences for incest were no greater than 11 years. On the other hand, as counsel for the respondent pointed out, sentences imposed in the County Court during 2008 and 2009 disclosed that the length of median and average sentences for incest had increased. It does not appear that the sentence imposed upon the appellant was out of line with current sentencing practices in the County Court, albeit the sentence could be seen to be at the higher end of the range.

29 Counsel for the appellant said that when regard was had to the catalogue of circumstances which the appellant could pray in aid, the sentence was beyond the range of sentences available to the sentencing judge. Counsel relied upon the fact that the offences for which the appellant was sentenced by Judge Leckie were not prior convictions, the appellant's voluntary admission and pleas of guilty, the fact that the appellant would spend his sentence in protection, with little familial contact, the fact that the appellant came from a deprived background with a history of a speech defect and learning difficulties and poorly developed social skills, the fact that the appellant was the subject of sexual abuse as a child, so that his ability to establish stable mature adult emotional relationships was compromised, the fact that the appellant had led a hard-working life as a chef and that he was aged 38 years and faced the prospect of spending a large part of his middle age in custody. Counsel also submitted that the fact that the appellant had served the whole of the head term imposed by Judge Leckie was not reflected in the sentence.

30 The individual sentences imposed on the counts of an indecent act with a child under the age of 16 years ranged from six to 12 months' imprisonment. The appellant did not complain about those sentences. His counsel concentrated upon the sentences imposed on the counts of incest.

31 The gravity of the offence of incest is demonstrated by the maximum sentence of 25 years' imprisonment. In the present case, the appellant preyed upon his stepchildren over a period of years. The victims were entitled to depend upon the appellant to nurture them; instead, he abused them to satisfy his carnal desires. It is, in my opinion, important that the courts impose sentences for the crime of incest which make clear that our society will not tolerate the sexual exploitation of children by those who stand in a position of trust and confidence to them. General deterrence is a principal purpose in the sentencing for this offence.

32 While the offences for which the appellant was sentenced by Judge Leckie were not prior convictions in respect of all the offences the subject matter of this appeal, three of the counts concerned offences committed after the appellant was

sentenced by Judge Leckie and when he was on parole.

33 The pleas of guilty were made only after a ruling by a judge that evidence of admissions made by the appellant to the police was not to be excluded. At that point, both the victims of the offences had been cross-examined at a special hearing. The pleas were late and not, it seems, motivated by remorse

34 The appellant was to be sentenced as a serious sexual offender. The provisions of Part 2A of the Sentencing Act 1991 disclose the view of the legislature that serious offenders are to be treated differently from other offenders. The protection of the community is the principal purpose for which the sentence is imposed. As the High Court said in R H McL v R,[1] the scope for applying the totality principle is more limited in cases falling within Part 2A. The very modest cumulation ordered by the sentencing judge in this case in my view favoured the appellant.

35 In the light of the gravity of the offences, I do not consider that the sentencing judge imposed a manifestly excessive sentence.

36 Pursuant to the second ground, it was submitted that the sentence did not sufficiently reflect the fact that the appellant had been required to serve the entire non-parole period fixed by the first sentencing judge.

37 His Honour expressly adverted to the time spent in custody by the appellant as a result of the fact that he had been reclaimed by the Parole Board. He treated it as a mitigating factor, and in my view it cannot be said that the sentence imposed upon the appellant reveals that it was disregarded.

38 For the foregoing reasons, I would dismiss the appeal.

39 For the reasons given by Buchanan JA, I would also dismiss the appeal.

[1] [2000] HCA 46; (2003) 203 CLR 452, [76].