McCray (a Pseudonym) v The Queen [2017] VSCA 340

35 This ground is without substance, in our view. By force of s 5(2F)(a) of the Sentencing Act 1991, the judge was obliged to impose a sentence that reflected 'the totality of the offending that constitute[d] the course of conduct'. The only constraint on his Honour's discretion, apart from the principle of totality itself and the other usual sentencing principles applicable to the case, was that expressed in s 5(2F)(b), namely, that the sentence must not exceed the maximum of 25 years' imprisonment.

36 The offending conduct to which the applicant pleaded guilty was extremely serious. It was an egregious breach of the trust reposed in him, both by H and by her mother, and an abandonment of his responsibility to protect H and keep her safe from harm. It was also a grave exploitation of the power which a parent has over a child.[18] Even if the course of conduct had been confined to five occasions of digital penetration, as defence counsel argued, this sentence would have been moderate in the circumstances. Because the applicant was to be sentenced for multiple incidents of incest, albeit within the confines of a single maximum penalty, sentences imposed for single instances of incest could not provide any relevant guidance.

The sentence on count 1 is manifestly excessive in particular where:

1. the charge came about as a result of the disclosure of unknown guilt;
2. the applicant had no relevant prior convictions;

1. the applicant is 'at low risk of reoffending' and his 'prospects of rehabilitation are good';

1. the offending was not protracted;
2. the offending was a single occurrence;
3. the applicant pleaded guilty;
4. there was 'considerable delay' between the applicant being interviewed and charges being filed, and a further four months' delay between pleading guilty and sentence; and
5. the applicant's health.

38 As noted earlier, the offence of indecent assault was committed when H was aged between four and six. According to the agreed facts, the applicant placed his erect penis high between H's legs, just near her vagina and started to move it in and out. This was, in our view, an extremely serious example of indecent assault. It was, as Priest JA said in refusing leave, a form of simulated intercourse.[19]

39 There is, of course, a very wide range of conduct which can constitute indecent assault. Self-evidently, this was at the very serious end of the scale. The offending was made all the graver because, as with the incest offence, the applicant was in breach of trust and in dereliction of his parental duty. The fact that H was very young at the time this assault occurred further emphasises its seriousness.

40 Much was made in argument of the proposition that the applicant had voluntarily disclosed this conduct and, as a result, was entitled to a significant sentencing discount. Reliance was placed on the well-known authority of R v Ellis.[20] The Crown, for its part, submitted that the relevant disclosure should be seen as an attempt on the applicant's part to minimise his offending.

41 The record of interview reveals that the interviewing police told the applicant that they wanted to talk to him about his 'involvement' with his daughter. When asked to tell them what happened, the applicant offered to give what he described as 'the full story'. He said:

It was my turn to have the children. She's slept in the double bed with me, and I put my penis between her legs but not in her vagina. I have never penetrated her vagina, ever.

When asked, 'Is that all?', the applicant replied, 'That's it.' He maintained his denial of vaginal penetration throughout the interview, and for some time afterwards.

42 Subsequently, of course, the applicant pleaded guilty to a course of conduct charge of incest, comprising multiple incidents of vaginal penetration. In the circumstances, the disclosure of the indecent assault takes on a different character from other voluntary disclosures.

43 It is true that H herself had not described the conduct in question. The applicant's disclosure evidently refreshed her memory. But this was not a case where the offender had come forward voluntarily to disclose offences which would otherwise have been unknown.[21] On the contrary, H had already confronted the applicant with her allegations and he knew, when interviewed, that police had just interviewed H. We agree with the Crown's submission that the admission was an attempt to minimise the offending. The applicant was evidently hoping that, by making a prompt and specific admission and declaring that it was 'the full story', he might be able to limit the scope of any charges laid against him.

44 At best, in our view, the applicant was entitled to a modest discount in recognition of the disclosure. Given the seriousness of the indecent assault, as described above, the sentence of two years' imprisonment was well within range, as was the order for cumulation of 12 months. The contention of manifest excess is not reasonably arguable.

45 For these reasons the application for leave to appeal must be refused.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] (2017) 91 ALJR 974 ('Chiro').

[3] (2017) 91 ALJR 1007 ('Hamra').

[4] The indictment charged that the indecent assault took place between 1 January 1988 and 31 December 1990.

[5] A course of conduct charge is 'a charge for a relevant offence that involves more than one incident of the offence': Criminal Procedure Act 2009 sch 1, cl 4A.

[7] DPP v McCray (a pseudonym) (Unreported, County Court of Victoria, Judge Wischusen, 29 September 2016) [13]-[15] (emphasis added) ('Reasons').

[8] [2012] VSCA 298; (2012) 36 VR 679.

[11] See [16] above; Reasons [14].

[12] Criminal Law Consolidation Act 1935 (SA) s 50.

[13] Chiro (2017) ALJR 974, 978 [1].

[14] Substituted by Crimes Amendment (Sexual Offences) Act 2016 pt 2. The offence of 'persistent sexual abuse of a child under the age of 16' is now created by Crimes Act 1958 s 49J.

[15] R v SLJ [2010] VSCA 16; (2010) 24 VR 372, 375 [16]-[17]; see Crimes Act 1958 s 49J.

[16] Explanatory Memorandum, Crimes Amendment (Sexual Offences and Other Matters) Bill 2014, 13.

[17] On 2 August 1982, the applicant was convicted of theft for which he was sentenced to a good behaviour bond, and ordered to pay $150 adjourned to 7 February 1983.

[18] Sutton (a pseudonym) v The Queen (2015) 47 VR 496, 505 [28].

[19] McCray (a pseudonym) v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 17 February 2017), [28].

[21] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 541 [31].