McPherson v The Queen [2021] VSCA 53

1 The applicant was convicted, after trial, of one charge of sexual penetration of a child under 12. He was sentenced to nine years' imprisonment with a minimum term of imprisonment before parole eligibility of six years.

2 The applicant seeks leave to appeal against sentence on a single ground, expressed as follows:

Ground 1

The sentence imposed (9 years) and the non-parole period fixed (6 years) were manifestly excessive.

Particulars:

(a) The sentences imposed were manifestly too long.

(b) Manifestly too much weight was given to the standard sentence.

(c) Manifestly too little weight was given to the applicant's traumatic background, his impaired mental functioning, his prospects for rehabilitation, the absence of a personal history of sexual or indecent offending, the absence of certain otherwise aggravating features and the principle of parsimony.

3 It is convenient to set out the judge's concise summary of offending.

[The applicant] had known Ted Prendergast[1] for many years, and through him, came to know his wife Carol for years, and later, knew their three children from birth. Verity, their eldest child, was aged eight years when [the applicant] offended against her.

[The applicant was] at the Prendergast family home on 29 April 2018, and at one stage, [the applicant], the three children, Ted Prendergast and his father were all in Verity's bedroom. [The three men] were playing with the children, who were getting boisterous, and it was decided that [they] would all move to the lounge room. Mr Prendergast and his father left first with the youngest child, while [the applicant] gave the middle child a piggy back to the lounge room. Verity also wanted a piggy back and got on to her bed in preparation to get on [the applicant's] back when [he] returned. It was at this point with only [Verity and the applicant] in the room, that [he] asked her if [he] could touch her vagina. When she said, 'No, you can't', [the applicant] insisted, saying 'Please, I did it to you when you were little'. Verity said 'no' again and in her evidence, described and demonstrated how, when she was getting on [the applicant's] back and despite her protestation, [the applicant] pulled her in front of [him] and, in her words, 'stuck [his] hand into her pants and undies and started grabbing [her] vagina and started wiggling [his] fingers'. The jury accepted her evidence and demonstration that there was penetration of her vagina. She said 'Please stop it, stop it' but [the applicant] did not, until she had said it a second time.

[The applicant's] defence was that any touching of her vagina was accidental, and occurred in [his] attempt to catch her as she was jumping on the bed and about to fall off, and [he] denied that the accidental touching involved any penetration. By their verdict, the jury were satisfied beyond reasonable doubt that [the applicant] did deliberately touch Verity's vagina, and [he] did intentionally penetrate her.

I note that there was never any suggestion that [the applicant] had in fact touched her vagina in any way before this day; the prosecution case was that this reference to 'doing it to [her] when she was little' was said by [the applicant] in an attempt to coerce Verity to comply with [his] demand.[2]

4 The prosecutor submitted that, if the defence were to contend that the applicant's moral culpability was moderated by mental illness, then the Crown would wish to explore the evidence said to support that hypothesis, comprised chiefly of a report by Ms Alison Mynard, clinical psychologist. It was agreed that the plea commence and be adjourned part-heard for Ms Mynard to be called and give evidence.

5 A Victim Impact Statement from the complainant's father spoke of a sense of betrayal felt towards the applicant, a change in the complainant's disposition and an apparent decline in her academic performance. The complainant herself described a diminished trust in people other than her family and friends. She described sadness and anger at the offending conduct.

6 In helpful and comprehensive written and oral submissions, the applicant's counsel emphasised the following:

• The applicant (at the time of the plea) was 32 years old and close to his mother, stepfather and brother.
• He completed year 10 at Heathmont Special School with the assistance of teachers' aides.
• He suffered from Attention Deficit Hyperactivity Disorder ('ADHD') throughout his school years. This gave rise to behavioural problems.
• From the age of 12 he was placed in out-of-home care by the Department of Health and Human Services after a violent incident at home.
• He was in care until he turned 18. Whilst in care he was seriously sexually abused by a foster carer.
• He had been employed for most of his adult life as, variously, a panel beater, truck driver and RACV roadside assistance driver.
• He had been in a relationship for 10 years. His partner remained supportive.
• He drank occasionally and then in moderate amounts. He had no history of substance abuse.
• The offending was inherently serious as the applicant was in a position of trust and there was a significant age difference between him and the complainant.
• It ought be noted that the offending:

(a) was an isolated incident;

(b) was of short duration;

(c) was opportunistic without apparent premeditation;

(d) did not involve physical violence or threats; and

(e) did not place the complainant at risk of infection with an STD.

• The standard sentence of 10 years' imprisonment was a factor to be taken into account in determining an appropriate sentence; it was not a determinative figure and ought not interfere with the intuitive synthesis.
• This offending falls well below the mid-range of seriousness for this offence.
• The applicant's plea of not guilty was not an aggravating feature.
• The applicant had suffered and continued to suffer from post-traumatic stress disorder ('PTSD'), depression and anxiety, obsessive compulsive disorder ('OCD'), receptive and expressive language disorder, Tourette's syndrome, and ADHD (predominantly hyperactive/impulsive type).
• The symptoms of his various conditions contributed to his offending behaviours, along with other factors, including his history of abuse.
• Incarceration was significantly more onerous for the applicant.
• He had a very limited prior criminal history, with no history of sexual misconduct.
• He had favourable prospects for rehabilitation.
• The only appropriate sentence was a term of imprisonment.
• The sentence ought to be significantly moderated as a consequence of the objective features of the offending, the applicant's low risk of reoffending, and his mental impairments.

7 As we have indicated, the issue of the engagement of Verdins principles 1-3[3] was in dispute and the psychological witness, Ms Mynard, was unavailable on the first day of the plea. On that day, the prosecutor referred to her written submissions and contended:

• The applicant's prior convictions were not relevant to this offending.
• The offending constituted a gross breach of trust by a family friend and occurred in the complainant's bedroom where she was entitled to feel safe.
• The penetration was of relatively short duration and digital.
• The complainant was eight years old at the time of the offending.
• There were attempts to induce compliance.
• There was no remorse.
• The offending was of mid-range seriousness.

8 The plea was resumed on 20 September 2019. Ms Mynard adopted her report which was tendered. In it she set out a background history, an educational and vocational history, and then a comprehensive mental health history, including the applicant's diagnosis with ADHD, medication for same together with its unfortunate side effects, that he was bullied at secondary school and that he had been ultimately placed into care. She outlined a close relationship with a foster care worker, which culminated in the applicant being sexually assaulted and raped repeatedly at age 15. Ms Mynard took a history that the worker was charged by police and the applicant gave evidence in court against him. The man ultimately received a suspended sentence. The applicant felt conflicted because of the good this man had done for him before the sexual abuse. Ms Mynard noted the applicant's 10-year relationship with his partner, and that his partner remained supportive.

9 Ms Mynard set out the applicant's then symptoms of high-range depression, severe anxiety, PTSD (exacerbated since by his incarceration) and OCD (also so exacerbated). She also noted symptoms of Tourette's syndrome. Her diagnosis was:

• PTSD;
• adjustment disorder (depression and anxiety);
• OCD;
• receptive and expressive language disorder;
• Tourette's syndrome; and
• ADHD (predominantly hyperactive/impulsive type).

10 We shall reproduce relevant portions of Ms Mynard's opinion:

At the time of the offending, it is the writer's opinion that Mr McPherson was suffering from PTSD, depression, anxiety, an ongoing language disorder and ADHD. It is unclear as to how these diagnoses may have contributed to the offending, however, it is likely that his own confusion around sexual identity, his psychological symptoms of PTSD, depression, as well as his lack of verbal communication skills all contributed to his offending behaviours. He does have a complex array of psychological factors that he has not engaged in treatment for, and he lacks the (sic) insight about the impact of these issues upon his life.

It is unclear to the writer as to how these pre-existing issues related specifically to his offending behaviours, given Mr McPherson's ongoing denial of intent or admission of guilt. However, studies have shown that experiencing sexual abuse (and other forms of maltreatment) in childhood has been found to be correlated with the perpetration of child sexual abuse later in life and although not causal, may have an impact. The impulsivity factor of ADHD may also have been a contributing factor to Mr McPherson's offending behaviour. In addition, his experiences of being abused appear to have contributed to Mr McPherson having a confused sense of boundaries and difficulty with monitoring his own behaviours, which may also have contributed to his offending behaviours.

...

Given his experience of sexual abuse as a teenager, along with disrupted and unstable living factors for many years of his adolescence, Mr McPherson does display symptoms consistent with Post Traumatic Stress Disorder. His risk of reoffending would be increased with a deteriorating mood and symptoms of psychological disorders such as PTSD, however, his PTSD has only worsened whilst being in custody. The writer believes that Mr McPherson's mood may have been deteriorating in 2018 due to he (sic) and his partner's relationship issues. This mood deterioration may have been a contributing factor to the offending. However, in general, it appears that his mood has been consistently low but stable, over many years.

Mr McPherson does not display factors relating to any long-term enduring patterns of personality disorder, which act as a protective factor for him, in terms of re-offending risk. Studies of sexual recidivism have shown that the most consistent psychological risk factor is a diagnosis of personality disorder, rather than disorders of mood, such as depression or anxiety.

Based on the above risk factors ... the writer would estimate that Mr McPherson has a moderate to low risk of reoffending. His inability to admit guilt would increase his risk of reoffending, to a moderate risk of reoffending. If he were able to build a trusting therapeutic relationship with a counsellor or psychologist, this would be an issue to address.

For Mr McPherson, his time in custody has been significantly more onerous upon him, given that his PTSD symptoms from his own experience of sexual abuse have become very prominent. It appears that whilst he may have had some symptoms of OCD in the past, this disorder has become very serious. His OCD behaviour reflects the anxiety he feels and the traumatic experiences he has had, and his intolerance for feeling dirty and unclean in the prison environment, in a sex offender's jail. Cleaning is the only control that he has over his everyday life. In addition, his language disorder will also mean that he has great difficulty navigating himself through the prison system, with other inmates and staff, to communicate effectively. Mr McPherson has already experienced being targeted in custody at least three times and feels very unsafe, struggling to cope with everyday life.[4]

11 In evidence, Ms Mynard opined that, as at the time of the offending, the applicant would have been suffering from longstanding PTSD, depression and anxiety, but thought that any relationship of these to the offending was unclear. In the event, her Honour declined to draw any causal connection between the applicant's multiple psychological disorders and the offending.

The judge's sentence

Gravity of offending

12 The judge's reasons were careful and conscientious. Her Honour assessed the offending as 'very serious':[5]

• Though it lasted only a 'relatively short time', it involved a 'gross breach of trust' in respect of both the complainant and her parents.[6]
• The offending was opportunistic: the applicant took advantage of the moments he was left alone with the complainant.
• The offending occurred in a place the complainant was 'entitled to feel safe', her bedroom.[7]
• The offending was persistent: the applicant proceeded to penetrate the complainant despite her objection, and continued for a time despite her protests.
• The applicant confused the complainant with his claim to have done it before, which she could not recall.

13 The judge assessed the impact of the offending as 'considerable':[8]

• The judge noted that, in her evidence-in-chief, Verity came across as an 'intelligent and confident little girl', but was unable to understand why someone she 'thought so much of' had done this to her.[9]
• In her Victim Impact Statement, Verity stated she felt she could not trust anyone other than her family, school friends or teachers. She reported feeling sad and angry about what had happened to her.
• Verity's father reported that her demeanour had changed since the offending, both at school and at home: she had fallen behind in her schoolwork and lacked concentration; she now talked back to her parents and became uncharacteristically angry at family members.
• Because the offending took place in her bedroom, Verity had difficulty settling down there at night.
• The judge noted that children are presumed to suffer harm from a sexual offence being committed against them; this can be long-term and serious and both physical and psychological; it can include future harm. The relatively recent nature of the offending and Verity's young age (10) at the time of sentencing made it impossible to know what future harm the applicant may have been caused her. The sentence took into account only the harm known to have been caused to date.

Personal circumstances and background of the applicant

14 The judge noted that the sentence she imposed was less than the standard sentence due to the 'personal factors affecting [the applicant], principally [his] mental health'.[10] Her Honour noted the applicant's long-term relationship and closeness with his mother, stepfather and brother. She also noted the large number of character references tendered on his behalf, all considering the offending to be out of character.

15 Passing to the applicant's background, the judge took into account his struggles at school (moving schools numerous times and completing year 10 at a special school) and his behavioural problems and diagnosis with ADHD during this time. Her Honour described the applicant's history of childhood trauma, including his placement in out-of-home care between the ages of 12 and 18. The judge recounted the rape and sexual abuse that the applicant suffered at the hands of one foster carer, and the ongoing conflicted feelings with which this had left him.

16 Her Honour noted the applicant's employment history, noting that, 'to [his] credit', he completed two apprenticeships, in panel-beating and mechanics, despite leaving school at the age of 16 as a consequence of his sexual abuse.[11] Since then the applicant had worked in many positions, most lasting no longer than six to 12 months, which the applicant attributed to his becoming easily frustrated and often feeling depressed and anxious.

17 The judge drew extensively on the report of Ms Mynard outlining the multiple psychological conditions the applicant was suffering at the time of the offending.[12] Her Honour considered that these conditions would increase the burden of a prison sentence and represented a serious risk of prison having a significant adverse impact on his mental health. This lessened the sentence that would otherwise have been imposed.

18 The judge rejected the submission that there was any causal connection between the applicant's psychological conditions and the offending, or that they had caused any impairment in mental functioning relevant to the offending. The applicant's psychological disorders therefore had no impact on his moral culpability, which remained at a high level.

19 The applicant had never committed any kind of sexual offence before. He did have a criminal history, running from 2007 to 2013, comprising driving, assault, property and dishonesty offences. He had never received a custodial sentence.

20 The judge considered the applicant's prospects for rehabilitation to be 'fair', due to his capacity to work, strong support from his family, partner and friends, and the fact that he had never offended in this way before. Her Honour noted that these prospects would improve with treatment for the applicant's psychological conditions, particularly his PTSD. Her Honour also took into account Ms Mynard's clinical assessment of the risk of reoffending as moderate to low risk, increasing to moderate due to the applicant's 'inability to admit' offending of which he had been convicted.[13]

21 The judge noted that, as a result of the sentence, the applicant would become a registered sex offender.

22 In imposing a sentence of nine years' imprisonment, with a non-parole period of six years, the judge took into account the need for denunciation, to reflect the community's abhorrence of sexual offending, particularly against children, and for both specific and general deterrence.

Because this is a standard sentence offence I must fix a non-parole period of at least 60% of the head sentence of nine years, unless it is not in the interests of justice to do so. I find it is not in the interests of justice, because of the impact of your mental ill-health making service of a term of imprisonment more onerous, and as I have found there is a serious risk of imprisonment having an adverse effect on your mental health. I direct that you serve 6 years' imprisonment before becoming eligible for parole, which is less than 60% of the head sentence I have imposed.[14]

24 Nearly two months later, on 10 December 2019, her Honour sought to correct the obvious mathematical error in her sentence. She said:

On revision of the sentencing remarks, it became apparent that the non-parole period was in fact more than 60% of the head sentence.

The purpose of this addendum is to recognise that while the calculation of the percentage of the proposed non-parole period was inaccurate, the head sentence of 9 years and non-parole period of 6 years were the sentences intended to be imposed for the reasons outlined in the sentencing remarks.[15]

25 The applicant's only ground is manifest excess. He contended that too much weight was given to the standard sentence, and insufficient weight to the applicant's traumatic background, impaired mental functioning, prior criminal history and prospects for rehabilitation. He contended that, given the circumstances of offending and the matters referred to above, the sentence is not just stern but wholly outside any fair range for this offending. The applicant referred to the judge's reasons for sentence, which we have reviewed, and contended that, whilst no specific error was alleged, the sentence imposed demonstrated with some clarity a misapplication of principle.

26 The respondent conceded the sentence imposed was stern, but contended that it was within range as the offending fell at the mid-level of seriousness, the standard sentence was 10 years' imprisonment, and the applicant did not have the discounting factor of a plea of guilty.

27 We have reached the view that both the head sentence and non-parole period are manifestly excessive. The offence of sexual penetration of a child under 12 is inherently serious. There are no trivial examples of this sort of offending. That said, we consider that the offending the subject of this appeal is, objectively viewed, comfortably below the mid-range for this type of serious offending. The offending was an isolated example of relatively fleeting digital penetration - serious, no doubt, but when measured against the vast range of pernicious conduct that can constitute this offence, it falls, in our view, well towards the lower end of that range.

28 Further, we consider that the sentence imposed failed to reflect adequately the applicant's traumatic and disadvantaged past or his associated mental health problems. Her Honour was, we consider, correct to conclude that there was no established causal connection between the applicant's 'complex array of psychological factors' and the offending 'such as to reduce [the applicant's] moral culpability'.[16] The judge went on to state that she accepted that the applicant suffered, at the time of sentence, from multiple diagnoses affecting his mental health, including an adjustment disorder (involving anxiety and depression), PTSD, OCD, and adult ADHD. Her Honour stated:

[T]he PTSD arises from the ongoing impact on you of your own sexual abuse as a teenager; the OCD possibly arises from your increased anxiety at being imprisoned with other sex offenders, given your PTSD from your own abuse; and the ADHD is something Ms Mynard considered you have struggled with all of your life.

On the basis of her report and evidence, I find that all these disorders will make a prison sentence weigh more heavily on you, and that there is a serious risk of prison having a significant adverse effect on your mental health. As a result, the sentence I will impose on you will be less than for someone without your mental ill-health who committed the same offence in the same circumstances.[17]

29 We are unable to distil from the head sentence of nine years any realistic allowance for the impact of mental ill-health.

30 The standard sentence and the maximum penalty were factors that went into the intuitive synthesis calculus along with many other factors, including those that we have mentioned. It is often said by this Court that manifest excess is a ground that is hard to establish and that permits little argument. Our impression, and in the absence of specific error that is all it is, is that the sentence imposed, in all the circumstances was well beyond the appropriate range for this level of offending. We will grant leave to appeal and allow the appeal, quash the sentences imposed and resentence the applicant to six years and six months' imprisonment with a minimum term before parole eligibility of four years. This sentence endeavours to resolve the tension between the standard sentence for this offence, the maximum penalty, and the need for denunciation, punishment and both general and specific deterrence on one hand, and the applicant's very particular circumstances of mental ill-health and childhood trauma and disadvantage, as well as the principle of parsimony,[18] on the other. The sentence that we will impose also reflects the view we have expressed of the objective seriousness of this offending.

31 Before concluding we should mention the difficult task with which sentencing judges are confronted when considering the standard sentence for this type of offending. The standard sentence is designed to represent a 'mid-range' example of this offence, however, the offence covers such a wide range of sexual misconduct as to make the notional 'mid-range' very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all ages up to 12. The impact on the victim can be manageable or catastrophic. This is not to say the phrase is meaningless - it must be given its place in the sentencing calculus - but it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in 'two-stage' sentencing,[19] whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less.

[1] The names of the complainant and her family members are pseudonyms.

[2] DPP v McPherson [2019] VCC 1745, [3]-[6] (citations omitted) ('Reasons').

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 275 [26] (Maxwell P, Buchanan and Vincent JJA).

[15] DPP v McPherson [2019] VCC 1745 (Addendum), [5]-[6].

[18] See Sentencing Act 1991 s 5(3).

[19] See, eg, DPP v Walters [2015] VSCA 303; (2015) 49 VR 356, 374 [67], 380 [91]-[93] (Maxwell P, Redlich, Tate, Whelan and Priest JJA).