N J D v The Queen [2010] VSCA 84

1 I agree with Habersberger AJA, for the reasons his Honour has stated, that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

3 On 21 November 2007 the appellant pleaded guilty before the County Court to three counts of gross indecency with a girl under the age of 16 years, contrary to s 69(1)(a) of the Crimes Act 1958; two counts of indecent assault of a girl under the age of 16 years, contrary to s 55 of the Crimes Act; and seven counts of incest with a girl above the age of ten years, contrary to s 52(1) of the Crimes Act. All of the offences were committed between 1 October 1966 and 30 April 1970. In each case the victim was the appellant's stepdaughter, JMB.

4 The appellant had pleaded not guilty following a contested committal in June 2007. Although the trial was listed to commence on 19 November 2007 it was twice adjourned to the next day because discussions were underway. On 21 November 2007 leave was granted to file over a plea presentment and the appellant was then arraigned and pleaded guilty.

5 On 19 December 2007, after hearing a plea in mitigation of penalty on 17 December 2007, the appellant was sentenced to six months' imprisonment on each of the three gross indecency counts, 18 months' imprisonment on each of the two indecent assault counts, five years' imprisonment on four of the incest counts, six years' imprisonment on two of the incest counts, and six years and six months' imprisonment on the final incest count (which was made the base count). Her Honour ordered that one month of each of the gross indecency counts, two months

of each of the indecent assault counts and three months of each of the incest counts be served cumulatively upon the sentence imposed on the base count. The total effective sentence was therefore eight years and seven months' imprisonment. Her Honour fixed a period of five years before the appellant was eligible for parole.

6 At the relevant time the maximum penalties for the offences were two years' imprisonment for a first offence of gross indecency and three years for a second and any subsequent offence; three years' imprisonment for indecent assault;[1] and 20 years' imprisonment for incest.

7 On 31 December 2007 the appellant filed a Notice of Appeal against sentence. On 28 November 2008 the appellant was granted leave to appeal against sentence pursuant to s 582 of the Crimes Act.

1. The individual sentences, total effective sentence and non-parole period are manifestly excessive.
2. The learned sentencing Judge erred in sentencing the applicant on Counts 2 and 4 on the basis that the maximum penalty was 3 years.
3. The learned sentencing Judge erred in sentencing on the basis of the uncharged acts when none of the counts were representative counts.

9 The complainant's mother and her biological father separated when she was three years' old. Some time later her mother met the appellant, and they were married in 1961 when the complainant was four years' old. The marriage included

many periods of separation, and it ended permanently in 1978. The offences occurred when the appellant was aged between 27 and 31 years. At the time of the offences he was a transport driver working both in Victoria and interstate.

10 The offences started when JMB was approximately nine years old and continued until the time that she was around 12½ years of age. It seems that JMB had a good relationship with her stepfather, whom she called 'Dad'. The appellant used to ask JMB to scratch his back, usually when everyone was watching television in the lounge room.

11 On the day that the offences first began JMB was at home alone with her stepfather while her mother was at work. The appellant called JMB into his bedroom, where he was in bed under the covers. She got into bed with him. He asked JMB to scratch his back. Whilst JMB was scratching his back, he grabbed hold of her hand and put it on his erect penis. JMB began to cry. The appellant put his hand over hers, and masturbated himself until he ejaculated. He told JMB she was a good girl and that she was not to tell her mother or anybody else. She was scared and thought she would get into trouble. He then let go of her hand and she ran out of the bedroom. This conduct was the subject of count 1, the first of the gross indecency charges.

12 The other two gross indecency charges (counts 2 and 4) resulted from similar conduct by the appellant some months later.

13 On another occasion JMB was in the appellant's bedroom, and was scratching his back. The appellant rolled over and faced her. He then put his hands on her chest over her pyjamas. The appellant moved his hand over her body and fondled her in the area of her vagina on the outside of her pyjamas. He then put his hand under her pants and laid it on her vagina. He then inserted one of his fingers into her vagina. JMB remembered that this hurt her, and that she felt scared. She told the appellant that she did not like what he was doing and he responded by telling her that this is what happened, that she would get used to it and that it would not hurt any more. This incident gave rise to the first charge of indecent assault (count 3). It occurred immediately before the conduct the subject of count 4.

14 The appellant apparently encouraged the complainant to accompany him on various driving jobs in his truck. On one occasion, when JMB was about nine and a half, she went on a trip with the appellant. The appellant told JMB to get into the back of the cabin to have a sleep. He told her to roll over so that she was facing him. The truck had a sleeper cabin partitioned from the main cab by curtains. The appellant then reached into the cabin with his left hand and fondled JMB's vagina whilst driving with his right hand. The complainant tried to move away from him, but he grabbed her underwear, pulled her forward and continued to fondle her vagina. This incident constituted the second charge of indecent assault (count 5).

15 Counts 6 to 12 related to charges of incest. The first incident (count 6) took place on a truck trip to South Australia when JMB was around nine and a half to ten years old. The appellant told JMB to get into the sleeper cabin, which she did although she was scared because she knew what would happen. The appellant then pulled the truck over to the side of the road and got into the back of the cabin with her. The appellant pulled the complaint's pants down, and then his own pants. His penis was erect. The appellant said words to the effect, 'This is the next step and it's time we go to the next step'. The appellant lay on top of her and pushed his penis into her vagina. JMB was scared, she started to cry and told the appellant to stop. The appellant moved his penis in and out of her until he ejaculated.

16 A similar incident occurred on a trip along the Geelong Road (count 7).

17 Another similar incident occurred on a trip to Wodonga (count 8). However, this time the appellant was more aggressive. He told JMB, 'You're old enough now, you know what you've got to do'. JMB believed that on this occasion she threatened to tell her mother, and that the appellant responded by laughing and saying that she would not be believed.

18 Another similar incident occurred when the appellant pulled over at the truck stop on the Port Fairy side of Tyrendarra (count 9).

19 The conduct the subject of count 10 occurred at the truck stop in Bells Hill, when the complainant was around 11 years old. The appellant got into the sleeper cabin with JMB, where he removed all of his clothes and then all of her clothes, which had not happened before. JMB was just starting to develop breasts and she felt very uncomfortable without her clothes on. Once again, the appellant pushed his penis into her vagina, and continued to do so until he ejaculated.

20 Another act of incest occurred during another driving trip, when the appellant pulled over at truck stop north of Heywood (count 11).

21 The final offence (count 12) occurred at home when JMB's mother was at work. JMB was in high school at this stage in Form 2. On this day she was at home in her school uniform. She had begun to realise that what had been done to her was not right and she began to assert herself. The appellant asked her for a cuddle and she refused. As JMB ran through the dining area to get away from the appellant, he grabbed her from behind. She held onto to a wall unit that was nearby and would not let go. The appellant continued to pull her and the wall unit fell over, causing all of her mother's glassware to smash. Both JMB and the appellant fell to the ground. He pulled her 'knickers' down, and undid his zip. JMB continued to put up a fight, but the appellant grabbed her hair, which was worn in a long plait, and held on to her. This hurt JMB every time she moved. The appellant penetrated her from behind, until he ejaculated. The appellant told her to clean herself up and to clean up the mess from the upturned wall unit before her mother got home. JMB decided that this was never going to happen again. She told the appellant she was going to tell her mother what had been happening. The appellant replied that she would not be believed and he laughed at her. The complainant did not tell her mother at this stage, and she took the blame for knocking over the wall unit.

22 About a month later JMB had a conversation with a school friend. JMB did not disclose what had happened to her but, as a result of that conversation, she realised that she should not be made to do something she did not want to do.

23 Some weeks after that conversation JMB had an argument with her mother and she disclosed that she had been forced to have sex with her stepfather. She also told another family member about what had happened. JMB's mother told her, 'Whatever you do, don't tell your grandmother. You're not to tell anybody'. JMB in effect was told to forget what had happened and to move on.

24 JMB was then sent to live with her grandmother for a couple of weeks, during this time her mother confronted the appellant. He denied doing anything to JMB, but from this time on there were no further offences. Shortly thereafter the appellant and JMB's mother separated and JMB returned to live with her mother.

25 However JMB's mother and stepfather eventually reconciled, and he moved back into the house with both of them. JMB felt horrible but thought that she had nowhere else to go. The marriage ended permanently in 1978 when JMB was around 21 years' old.

26 JMB herself married at the age of 18, and she told her husband of the abuse. That relationship broke down, and she married again in 1988 when she was 32 years' old. JMB also told her new husband what her stepfather had done to her, and her husband confronted the appellant. The appellant telephoned JMB's mother, and told her that JMB's husband had raised the issue. JMB's mother contacted her and said words to the effect of 'Why can't this be left behind'? In 1990 JMB's husband committed suicide. She subsequently met another partner.

27 JMB first confronted the appellant directly on 4 October 2005 by telephone. There were several conversations between JMB and the appellant some of which were recorded. The appellant was arrested on 26 September 2006 and charged by investigating police.

28 It is convenient to consider this ground of appeal first. Counsel for the appellant submitted that the learned sentencing judge erred in sentencing the appellant on counts 2 and 4 on the basis that maximum penalty for the offence of gross indecency was three years rather than two years. The prosecutor clearly indicated at the plea hearing that the applicable maximum for the gross indecency offences was two years' imprisonment. At the commencement of her sentencing remarks, her Honour correctly stated that the maximum penalty for gross indecency was two years' imprisonment for a first offence and threes years' imprisonment for a second and subsequent offence. All of the gross indecency offences should have been treated as first offences. However, when her Honour came to imposing the sentence for each count, she said:

On Count 1, gross indecency. The relevant maximum applicable at the time was two years. You are convicted and sentenced to six months' imprisonment.

On Count 2, gross indecency. The relevant maximum period at the time was three years' imprisonment. You are convicted and sentenced to six months' imprisonment.

...

On Count 4, gross indecency. You are convicted and sentenced to six months' imprisonment.

It was not disputed by the respondent that her Honour's statement about count 4 should be taken to be to the same effect as count 2, that is, that the relevant maximum was 3 years' imprisonment.

29 Pursuant to s 573 of the Crimes Act 1958 and r 2.27 of the Criminal Appeal and Procedure Rules 1988, the learned sentencing judge furnished a report in respect of the appeal. That section provided that a trial judge should furnish 'a report giving his opinion upon the case or upon any point arising in the case'. In relation to ground 2, her Honour made the following comments:

Although I am unable to say with 100 per cent certainty whether I regarded the maximum penalty as two, rather than three years, I strongly believe that I made a simple slip when I said "three" in my reasons for sentence. I believe the plea transcript and my reasons for sentence demonstrate that I sentenced on the understanding that the correct maximum was two years because:

1. The prosecutor stated that this was the maximum applicable penalty ...;
2. Paragraph 2 of my reasons for sentence sets out the applicable maximum;
3. Paragraphs 59 and 67 of my reasons for sentence confirm that I was aware of and regarded the Prisoner as having no prior convictions; and
4. The terms of imprisonment imposed on all gross indecency counts were identical - 6 months.

30 In R v Marziale,[2] Winneke P, Brooking JA and Southwell AJA discussed the role of a trial judge's report and the weight to be given to it:

The weight to be given to a judge's report must necessarily vary according to the circumstances of each particular case. That weight will generally be the greater when the opinion expressed is based upon factors the assessment of which depends principally upon the atmosphere of the trial or the observations of a witness - for example, the general demeanour, the unduly delayed or the too hurriedly given answers. In such matters a court of appeal will recognise the advantage enjoyed by the trial judge. However, less weight will be given where, as in this case, the judge's opinion is based, so it appears, almost wholly upon the type of assessment of the evidence which a court of appeal is obliged to undertake where it is said that a conviction is unsafe and unsatisfactory.[3]

31 In R v Ahmet,[4] a ground of appeal was that in sentencing the applicant the learned sentencing judge had failed to consider or take into account the provisions of s 10 of the Sentencing Act 1991; that is, that he had failed to take account of the abolition of remissions and had proceeded to sentence the applicant on the incorrect basis that the maximum available penalty was 15 years. In his report the judge said that s 10 had been:

part of the legislative sentencing fabric of this State for some years now. As such, any sentencer must be well aware of its application.

Whether a sentencing judge should say that its requirements have been taken into account seems to me to depend upon the circumstances of the case. ...

Although I was conscious of s 10, I did not consider this to be a case in which specific reference was required.

Winneke P, with whom Hayne JA and Smith AJA agreed, said:

The contents of this report which, of course, the court accepts, disposes of the first of the grounds argued on this application. However, having regard to the nature of the submissions made, I think it desirable to say something about them because they appeared to proceed from a misunderstanding of the purpose of the rules pursuant to which reports of this kind are requested and furnished to the court. ...

The report of the primary judge which is contemplated by the rules and s 573 of the Crimes Act is intended to assist the Court of Appeal by giving to it the judge's "opinion upon the case or upon any point arising in the case". ... On some occasions the reports are of value in the disposition of appeals, if only because they provide the opportunity ... to express views upon matters that may not be readily apparent from a perusal of the written record: ... However such reports are not, are not intended to be, and should not be treated as documents in and through which the trial judge is being called upon to defend the course which he or she may have taken.[5]

32 In R v JMV,[6] the applicant had been convicted on only one of 29 counts of sexual assault. The trial judge stated in his report that he was 'surprised at the verdict, bearing in mind the whole of the evidence' and that he was 'concerned that a grave injustice may have occurred'. Winneke P, with whom Brooking and Buchanan JJA agreed, said:

Of course, this Court, as it has frequently said, is not bound by reports to it of trial judges, but, none the less, it calls for such reports for the purposes of having revealed to it matters which may in the circumstances have been relevant to the trial judge, familiar with the atmosphere at the trial, and not as easily discernible from the transcript of material before this Court. ... The report in this case, as it seems to me, is a factor which we would do well to take into account in disposing of this application.[7]

33 Section 11 of the Criminal Appeal Act 1912 (NSW) also provides for a report from the trial judge to the Court of Criminal Appeal in that State. It is in similar terms to s 573 of the Crimes Act. In R v Sloane,[8] Wood CJ at CL, with whom Studdart and Bell JJ agreed, considered the nature and purpose of a trial judge's report. His Honour said:

The purpose of a report to the Court of Criminal Appeal is not to justify or to explain why a judge has dealt with a matter in a particular way. The proper place for the exposure of reasoning of this kind is in the Reasons for Sentence, and nowhere else. The reasons for that are obvious:

(a) the Reasons for Sentence are the published statement of the court, addressed to the community at large, as well as to those immediately involved in the case, as to why an offender was dealt with in a particular way;

(b) the provision of an explanation directed to the Court of Criminal Appeal, after a sentence is handed down and an appeal is lodged, risks conveying an impression that the judge, whose decision has been appealed, is seeking to justify or to support it.

An important function of a report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.

Another permissible and relevant function of such a report is its use, by a trial judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record.

A third permissible reason for such a report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it.[9]

34 I accept without question the statement by the learned sentencing judge in her report that she strongly believes that she made a slip when she said three years in her reasons for sentence. I note, however, that her Honour frankly acknowledged that she was unable to say with 100 percent certainty whether she regarded the maximum penalty as two, rather than, three years. Nevertheless, the critical point, in my opinion, is that, as Wood CJ at CL said in Sloane, her Honour's sentencing remarks are the published statement of the Court as to why the appellant was sentenced as he was. As those remarks contain the erroneous statement that three years' imprisonment was the relevant maximum, this Court must, in my opinion, act on that basis rather than on the views helpfully expressed in her Honour's report. This is not a case where the trial judge's report is dealing with matters where the trial judge enjoyed an advantage, such as the atmosphere of the trial, the observations of a witness, or other issues not easily discernable from the transcript.

35 Counsel for the appellant submitted that an error in relation to maximum penalty was to be treated as vitiating the sentencing discretion unless it could be shown that the error could have had no effect on the sentence imposed.[10] He submitted that despite the fact that the appellant received the same sentence for each of the three gross indecency offences, with the same orders for cumulation, one could not be sure that the sentences on counts 2 and 4 were not imposed with the higher maximum penalty in mind. The initial act of gross indecency, which started the series of offending acts, may have been regarded as more culpable than the two similar acts which followed and which might have received a lesser sentence than the first sentence if not for the incorrect maximum apparently applicable to the subsequent offences.

36 Counsel for the respondent submitted that the error did not vitiate the sentencing discretion 'because the error could not have materially affected the sentences imposed'. In her intuitive sentencing synthesis the learned sentencing judge did not distinguish between the various counts of gross indecency. It was also submitted that, in any event, the effect of any error was immaterial because her Honour's orders for cumulation in respect of counts 2 and 4 only added two months, or less than two per cent to the total effective sentence. Further, her Honour had clearly decided to cumulate for each offence and it was not possible to cumulate anything less than 1 month, so that a sentence of less than six months on counts 2 and 4 would not have made any difference to the total effective sentence.

37 In my opinion, the Court should accept that the appellant was wrongly sentenced on counts 2 and 4 on the basis that the maximum penalty was three years, as appears from her Honour's sentencing remarks. Although it might be thought to be extremely unlikely, one cannot be sure that the sentences on counts 2 and 4 were not affected by this higher maximum penalty. However, this does not necessarily re-open the sentencing discretion, as it might well be concluded that no different sentence should be imposed on counts 2 and 4. I return to this issue below.

38 It is convenient to consider next the third ground of appeal. Counsel for the appellant submitted that the sentencing judge erred in sentencing on the basis of uncharged acts when none of the counts were representative counts. Counsel submitted that the sentencing judge was entitled to proceed on that basis only if the uncharged acts were admitted, that is, if the Crown opening was in fact an agreed statement of facts.[11] He submitted that it was not so agreed, because at no stage was there any indication from defence counsel that the facts set out in the Crown opening were agreed. The little that was said by defence counsel, about the facts, suggested that because of the accused's cognitive difficulties he just did not remember all of the details although he accepted that he had done the wrong thing.

39 At the plea hearing the prosecutor stated that he intended to open the case in line with the statement of JMB made on 11 July 2006. A copy of the statement identifying the conduct which constituted each count was provided to the sentencing judge, and counsel proceeded to take her Honour through the relevant parts of that statement apparently by reading parts of it out, often transposed from the first person to the third person.[12] This included references to acts that were not the subject of specific charges. No objection to this course of action was made by counsel for the accused.

40 In her sentencing remarks under the heading 'Relevance of uncharged acts', her Honour said that she had referred to 'a number of uncharged acts in the agreed summary'. She then stated that she was 'mindful of the principles' explained in R v De Simoni[13] and R v Newman and Turnbull[14] and quoted a passage from the judgment of this Court in the latter case to the effect that a person could not be sentenced for an offence with which he had not been charged or convicted.[15] Her Honour continued:

You are to be sentenced today in respect of the counts upon which you have pleaded guilty and the use of the uncharged acts is confined for the purposes of demonstrating the overall context in which the charged offences occurred.

It cannot be said in respect of charges to which you have pleaded guilty that they were isolated acts and once committed, were immediately regretted and never repeated. (See R v Parfitt (2006) VSCA 91.)

41 Counsel for the appellant described the first of the two paragraphs from her Honour's sentencing remarks quoted above as a textbook statement about representative counts. He submitted that defence counsel had never agreed that these counts should be treated as representative counts.

42 Counsel for the respondent submitted that it was artificial for the appellant to draw the distinction between accepting the complainant's version of events regarding the charged acts as disclosed in her statement of 11 July 2006, which the pleas of guilty implied, and not accepting her version of events in respect of the uncharged acts as disclosed in her statement, when nothing at all was said regarding this distinction at the plea. It was submitted that it was open to the learned sentencing judge to proceed on the basis that the Crown opening effectively amounted to a statement of agreed facts.

43 Alternatively, counsel for the respondent submitted that if the facts supporting the uncharged acts were not agreed facts, they were uncontested facts which did not have to be proved beyond reasonable doubt.[16] Moreover, counsel submitted, if defence counsel had challenged the facts supporting the uncharged acts and submitted that her Honour should sentence the appellant on the basis that the offences represented a series of isolated events over a number of years, the Crown would have been compelled to call the complainant to give evidence regarding the disputed facts, which would have had an adverse effect on her Honour's findings regarding the appellant's level of remorse.

44 Counsel for the respondent also submitted that her Honour had not treated the counts as representative counts. He submitted that the prosecutor did not refer to them as such and her Honour did not say that they were representative counts.

45 As Buchanan JA pointed out during the course of the hearing, this ground really raised two arguments. The first was whether the judge erred in treating the opening as a statement of agreed facts and the second was whether the uncharged acts were described with sufficient particularity to enable the specific counts to become representative counts.

46 It seems to me that defence counsel must be taken to have agreed with the facts set out in the complainant's statement. That was the basis upon which the plea proceeded. The appellant should not now be permitted to advance an argument which departs from that basis.[17] The problem is, however, that the underlying agreement was not made explicit. As Warren CJ said in R v CJK:[18]

A representative count is achieved by the accused agreeing with the prosecution that in order to reduce the number of charges faced, there will be a plea of guilty to a count which is representative of other uncharged acts. The consent to the representative count must be express and unequivocal. [Citations omitted]

More care should have been taken to ascertain exactly what the accused would agree with and what precise conduct was included in the uncharged acts.

47 Further, although I consider that it is clear that the uncharged acts were referred to by the prosecutor in order to make the counts representative counts and that this must have been understood by defence counsel, this should also have been spelt out in the agreement between the parties. As Maxwell P, Redlich JA and Robson AJA said in Director of Public Prosecutions v CPD:[19]

To the extent that the sentencing decision is influenced by the nature and extent of the represented conduct, it is both necessary and desirable that the judge "identify some level of detail of the conduct represented by the count ... so that the 'whole picture' can be seen". Plainly enough, however, how much a sentencing judge will be able to ascertain about the "full circumstantial context" will depend on the material before the court. On a plea, the Crown summary will typically function as a statement of agreed facts which will both describe and confine the context for this purpose. [Citations omitted]

48 I consider that her Honour's sentencing remarks indicate that she was treating these 12 counts as representative counts. This is an important conclusion because of the impact the representative nature of the count may have on sentencing. In CJK, Warren CJ said:

I do not consider that representative counts should be seen as aggravating per se; nor should the representative nature lead to an inappropriate sentence. However, a sentencing judge is permitted to look to the whole picture, including the conduct which is represented in the count. In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances. If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representation, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only "colloquially".[20]

The Chief Justice also noted the following statement by Nettle JA in Director of Public Prosecutions v EB:[21]

Secondly, as the judge said, counts 1 to 5 were representative counts which made it appropriate to impose a higher sentence in relation to those counts than would be the case in relation to an isolated count. Admittedly, that notion is not without its conceptual difficulties because of the principle that a prisoner is not to be punished for uncharged acts. But as Batt JA explained in R v SBL,[22] the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context. Thus a representative offence is likely to attract a greater sentence than an isolated offence.

49 The lack of precision in this case has resulted, in my opinion, in there being uncertainty about exactly what was involved in some of the uncharged acts and what impact these uncharged acts have had on her Honour's sentencing. This is best demonstrated by an analysis of what the prosecutor said in his opening, and what her Honour said in her sentencing remarks, about the uncharged acts. In her sentencing remarks, her Honour carefully distinguished between the specific counts and the uncharged acts by including the heading 'Uncharged acts' whenever she referred to them.

50 First, in the Crown opening based on the complainant's statement, after referring to the circumstances of the first of two gross indecency offences (counts 1 and 2), the prosecutor said:

This happened a couple of more times, but each time was the same.

Her Honour followed the same structure in her sentencing remarks when setting out the circumstances of the offences. Thus, her Honour said, after referring to counts 1 and 2:

These acts were repeated on a number of occasions but are not the subject of other charges.

I consider that no criticism can be made of this statement by her Honour because the acts in question were said to be the same as those involved in counts 1 and 2 and they involved similar acts.

51 Secondly, after referring to the circumstances of the first indecent assault charge (count 3) and the third gross indecency offence (count 4), the prosecutor said:

She says this happened many more times in his bedroom.

In her sentencing remarks, after referring to counts 3 and 4, her Honour said:

There were other occasions where similar events took place including acts of digital penetration.

I consider that there are difficulties with this statement by her Honour. When the prosecutor said that the complainant said that 'this happened many more times in his bedroom', was she saying that the indecent act, or the act of gross indecency, or both acts happened many more times? It is quite unclear. However, her Honour has assumed that the complainant was, at least, saying that digital penetration happened many more times. I am not satisfied that this was the case. Thus, counsel for the appellant submitted that the 'heavy' sentences (being 50% of the maximum) imposed on counts 3 and 5 were possibly explained by this incorrect assumption.

52 Thirdly, after referring to the circumstances of the second indecent assault charge (count 5), the prosecutor said:

This happened a couple of times when they were in the truck. She can't remember which of the trips it was. On other trips she'd find herself going off to sleep and then would wake up with him touching her on the vagina again.

Her Honour said in her sentencing remarks, after referring to count 5:

There were other occasions when similar events occurred.

Again, no criticism can be made of this statement because the acts in question were said to be similar.

53 Fourthly, after referring to the circumstances of the first incest charge (count 6), the prosecutor said:

She went on the day trips with [the accused] to Melbourne. They went to different places. On some trips they visited the Footscray market and other different places. She knew that after they had made the delivery that would mean that they would be heading home and something was going to happen.

In her sentencing remarks, after referring to count 6, her Honour said:

There were other occasions on delivery trips that JMB thought something like this would and did happen.

I have a problem with the use made by her Honour of this statement by the prosecutor. It is not clear to me that the complainant was saying that something did happen. But if that is what she was saying, then it was probably just introductory to the next incest charge, whereas her Honour has taken it to be a statement that there were other occasions of incest.

54 Fifthly, after referring to the circumstances of the third incest charge (count 8), the prosecutor said:

She doesn't remember all the trips that were done, but she remembers on the way home from wherever they'd been, that [the accused] would always pull into a truck stop just outside Heywood. He'd be the same after that. By that she means that he would make her get into the sleeper cabin and he would climb in after her, he'd pull down whatever clothing she was wearing, he'd lay on top of her and push his penis in and out of her vagina, he would do this until he ejaculated and then he would get back into the driver's seat and drive off.

Her Honour said in her sentencing remarks, after referring to count 8:

There were other occasions, again on truck trips, that you would hurt JMB when you sexually penetrated her. You would make her lie on her back and you would lay on top of her. You would pull down whatever clothing she was wearing and push your penis in and out of her vagina to the point of ejaculation.

Again, I consider that no criticism can be made because what the prosecutor was saying and what her Honour accepted was that there were other occasions of incest.

55 Sixthly, after referring to the circumstances of the fourth incest charge (count 9) and then the circumstances of the sixth incest charge (count 11), the prosecutor said:

She clams that [the accused] sexually abused her several times at Bells Hills.

and

She remembers stopping in three places within about three to five months of each other. She would have been about 11 to 11 and a half.

Her Honour said in her sentencing remarks, after referring to counts 9, 10 and 11:

There were other occasions where sexual penetration took place after this at various truck stops.

I repeat my previous comment about the use made by her Honour of the prosecutor's statement.

56 Finally, just before referring to the circumstances of the final incest charge (count 12), the prosecutor said:

Still things were happening at home with her and [the accused].

In her sentencing remarks, just before referring to count 12, her Honour said:

There were also other events of a sexual nature as I understand it that took place at home.

I have difficulty with her Honour's statement because I am not persuaded that what the prosecutor said was anything other than an introduction to the conduct the subject of count 12. However, her Honour has taken it to be a reference to other events of a sexual nature. The nature of these other events was not specified. What impact did this assumption about other sexual activities have on her Honour's sentencing? Did it, for example, play a part in the judge deciding to increase the sentence on counts 10, 11 and 12 when compared with the earlier incest counts 6, 7, 8 and 9? The heavier sentence in respect of count 12 is readily understandable given the circumstances of that episode, but it is difficult to understand, in my opinion, why the sentence was increased for counts 10 and 11. No explanation was given for the increase.

I consider that this uncertainty about exactly what was involved in some of the uncharged acts and what impact these uncharged acts have had on her Honour's sentencing means that the sentencing discretion is re-opened.

57 In considering re-sentencing I am of the view that it is appropriate to take no account of the uncharged acts referred to in the second, fourth and seventh examples discussed above. Otherwise, the counts referred to in the other examples can be treated as representative of the uncharged acts described in those examples.

58 The appellant was 68 years of age at the time of sentencing in 2007. He had two brothers and two sisters none of whom had ever been in trouble with the police. The appellant was raised in Halls Gap and attended a local primary school. He completed his education at Stawell Technical School. According to her Honour, the appellant had been a hard worker all of his life, in constant employment mainly as a truck driver.

59 Following his separation from JMB's mother in 1978, the appellant remarried in 1980. His new wife had two daughters from a previous relationship. They were adopted by the appellant. The appellant and his wife later had two sons of their own. He financially supported all of his children. The appellant separated from his second wife in 2001. The appellant's two sisters and one of his sons was present at the plea to support him.

60 Her Honour said in her sentencing remarks that the appellant was 'not in good health'. He had had two double coronary artery bypass surgeries. More recently, he had suffered two heart attacks. According to a medical report from his general practitioner, Dr Sheahan, tendered at the plea, the appellant's heart had been left:

in a weakened state with an irregular pulse, such that he has impaired exertional capacity heart failure. He is taking a considerable amount of medication to support his cardiac function but his prognosis is not good. He also suffers from severe osteoarthritis of his hip and recently underwent surgery for a total replacement of his right hip but is still somewhat restricted with respect to mobility.

Dr Sheahan thought that the appellant 'would no doubt cope physically' with a custodial sentence.

61 The report from the appellant's cardiologist, Dr Amerena, which was tendered at the plea, was more pessimistic. He considered that the appellant's 'severe coronary artery disease and severe left ventricular dysfunction' both had the 'potential to greatly compromise his health in the next few years'. He also stated that should the appellant receive a prison sentence this had:

the potential to worsen his medical condition as to date he has been closely followed by our Heart Failure nurses and in the clinic with the aim of carefully modifying his treatment regimen to keep him out of hospital.

62 A report prepared by Mr Ian Joblin, forensic psychologist, was also tendered at the plea. He considered that it was highly probable that the appellant's offending specifically related to JMB and did not involve a generalised attraction to other girls this age. He considered that it was difficult and clinically dangerous to label the appellant, in 2007, with a diagnosis of paraphilia such as paedophilia, by reason of offences that occurred almost 40 years before, and which the appellant could not discuss in detail because of certain cognitive issues which had affected his memory. Mr Joblin considered that there was little risk of re-offending.

63 In support of the manifest excess ground of appeal counsel for the appellant submitted that having regard to established sentencing practice for incest, the sentences imposed on counts 6 to 12 and the total effective sentence failed to reflect the findings made by the learned sentencing judge that mitigating weight was to be attached to the appellant's age and ill health, the delay, the guilty plea, remorse and the absence of any other offending by the appellant.

64 Counsel for the appellant referred to Sentencing Snapshot No 43, which revealed that between 2002-03 and 2006-07 imprisonment terms for incest ranged from five months to eight years. The median length of imprisonment was four years. The average length of imprisonment for incest ranged from three years and six months in 2004-05 to 4 four years and two months in 2006-07.

65 Counsel for the appellant referred to Director of Public Prosecutions v OJA, WBA and EBD,[23] where Nettle JA commented upon the current sentencing practices for counts of incest. Judgment in that case was given in June 2007. Nettle JA noted that while the maximum sentence for incest was 25 years' imprisonment, the current practice was to impose individual sentences of considerably less than that. His Honour considered a number of cases, including in particular Director of Public Prosecutions v DJS,[24] R v Taylor[25] and R v DH[26] and found that the sentences imposed 'suggest that an individual sentence of six years' imprisonment is at the upper end of the range for counts of incest, even after the increase in the maximum penalty to 25 years' imprisonment ...'.[27] Here, of course, the maximum penalty was 20 years.

66 The OJA case was a very grave one, involving three accused who pleaded guilty to numerous offences committed against five young victims, who were either their own children or children in their care. Nettle JA remarked that the offences committed in that case were so depraved and protracted as to amount to one of the worst cases of offending of this kind. A sentence of six years' imprisonment was imposed on all three offenders on each count of incest.

67 It was also submitted by counsel for the appellant that sentences of a lower magnitude than that imposed in this case had been imposed by the courts for objectively more serious offending. However, as Nettle JA also said OJA:

I start from the approach that there is no sentencing tariff as such. Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis approach to sentencing implies an absence of necessary relationship between one case and another. Accordingly, as the law stands, any notion of a mathematical norm above or below which a case might be cast according to aggravating increments and mitigating decrements is precluded by a general prohibition on the use of two part sentencing processes. At the same time, it is of the nature of sexual offences that some instances of an offence are more serious than others. Since that is so, there is a need for at least some degree of comparison. The requirement to have regard to "current sentencing practices" is properly to be understood in that context and the notions of manifest excessiveness and manifest inadequacy are similarly informed.[28] [Citations omitted]

68 As previously mentioned, counsel for the appellant submitted that the 18 month sentences (being 50% of the maximum) for the indecent assault charges (counts 3 and 5) were only explicable on the basis that those counts were treated as quasi-representative. It should be noted, however, that the offence the subject of count 3 was particularly serious given that it involved digital penetration.

69 Apart from submitting that her Honour erred with respect to the maximum sentence for counts 2 and 4, counsel for the appellant did not address any further argument about the length of the sentences imposed for the gross indecency offences. This is hardly surprising because, in my opinion, the three gross indecency charges (counts 1, 2 and 4) were all similar in nature and it was entirely appropriate that the same sentence of 6 months' imprisonment be imposed on each count, and that 1 month of each sentence be cumulated.

70 I turn then to consider the mitigating factors relied on by the appellant and the other particular features of this case.

71 It was not until some 37 years after the last offence occurred that the appellant was sentenced. At the plea hearing counsel for the accused urged the sentencing judge to place considerable weight on this lengthy delay. Defence counsel submitted that a number of consequences flowed from this delay. First, he submitted that one of the effects of the delay was that the opportunity for the accused to offer any explanation was lost by virtue of the passing of time. Second, it was submitted that the appellant having committed no further offences, other than those against JMB, he had 'rehabilitated himself'. The likelihood of re-offending was low. Third, it was submitted that the long period in which no offences were committed by the appellant meant that the issue of specific deterrence need not be accorded much weight in the exercise of her Honour's sentencing discretion, given that he had not engaged in similar offending for nearly 40 years.

72 As her Honour found, some of the delay was a direct result of the actions of the appellant, given that he had told the victim not to tell anyone, and some of it was an indirect result of his actions such as embarrassment and fear on the part of JMB. However, her Honour also found that the appellant was not wholly responsible for the delay, in that some of it was caused by JMB's mother.

73 Like her Honour I take into account that the appellant has 'been of good behaviour and ha[s] been rehabilitated in the period of delay'. He is not the same man who committed the offences against JMB. Nevertheless, again like her Honour, I also take into account the statement made by Ormiston JA in R v Nikodjevic[29] that delay in sexual abuse cases 'does not give an automatic right for a reduction or discount in sentence', particularly where that delay is at least partly caused by the offender.

74 Another consequence of the delay, was that in the intervening years, the appellant had aged considerably. He is now a man in his seventies with considerable health problems. Counsel for the appellant referred to R v Cumberbatch,[30] as authority for the proposition that it was relevant for a sentencing court to take into account the fact that the length of a sentence may represent a substantial proportion of the period of life which is left to an elderly or unwell offender.

75 Like her Honour, I consider that the appellant's degree of remorse was 'somewhat limited'. As pointed out by the prosecutor at the plea hearing, there were direct challenges to the veracity of JMB's account at the committal. I also note that the guilty plea was entered just as the trial was about to commence, rather than at some earlier point. Nevertheless, the appellant did plead guilty and he is entitled to a discount for that. Although it is probable that 'a later plea has a less positive impact on the victims than an earlier plea',[31] the guilty plea spared JMB from the ordeal of having to give evidence at trial.

76 Another relevant factor to take into account is the gravity of the offences and the profound and lasting impact they have had on JMB. The offences were serious and constituted a betrayal of the trust JMB placed in the appellant.

77 Finally, I agree with the learned sentencing judge's approach to the serious sexual offender provisions of the Sentencing Act 1991. In my opinion, given the appellant's rehabilitation, prior good character, age, poor health and because the offence was specifically related to this victim, he is not a danger to the community and there is no need to impose a sentence greater than is proportionate.

78 Taking the same factors into account, particularly the appellant's age and ill health and the very low risk of re-offending, leads me to conclude that the sentences imposed by her Honour on some of the counts were excessive. I agree with the way in which her Honour approached cumulation, even though counsel for the respondent submitted that the result was 'extremely lenient'.

79 I would, therefore, propose re-sentencing the appellant as follows:

I would order that one month of each of the sentences imposed on counts 1, 2 and 4 and two months of each of the sentences imposed on counts 3 and 5 and three months of each of the sentences imposed on counts 6, 7, 8 9, 10 and 11 be served cumulatively upon the sentence imposed on count 12 and upon each other. This results in a total effective sentence of seven years and one month. I would order that the appellant serve a minimum of four years and three months before becoming eligible of parole.

[1] On 8 November 1967 the maximum penalty was increased to five years by s 2 of the Crimes (Amendment) Act 1967 (Act No 7577). Because it could only be alleged that the two counts of indecent assault had occurred between 1 October 1966 and 3 October 1969, it was not possible to find that they had occurred after the maximum penalty had been increased.

[2] Unreported, Court of Appeal, 18 April 1996.

[4] (1996) 86 A Crim R 316.

[5] (1996) 86 A Crim R 316, 323.

[6] [2001] VSCA 219.

[7] [2001] VSCA 219, [6].

[8] [2001] NSWCCA 421; (2001) 126 A Crim R 188.

[9] [2001] NSWCCA 421; (2001) 126 A Crim R 188, [9]-[12].

[10] R v Orbach [2007] VSCA 166.

[11] R v Storey [1998] 1 VR 359; R v Sadler [2008] VSCA 198.

[12] While the Court has the transcript of the plea hearing, it was not provided with the complainant's actual statement.

[13] [1981] HCA 31; (1981) 147 CLR 383.

[14] (1995) 81 A Crim R 191.

[15] (1995) 81 A Crim R 191, 197 (Winneke P, with whom Hayne J and Crockett AJA agreed).

[16] R v Vose [1999] VSCA 200; (1999) 109 A Crim R 489, [25] (Chernov JA, with whom Phillips CJ and Batt JA agreed).

[17] R v Djukic [2010] VSCA 65, [4] (Ashley JA), [29] (Bongiorno JA).

[18] [2009] VSCA 58, [38] (Vincent and Neave JJA agreed with Warren CJ).

[19] [2009] VSCA 114, [41].

[20] [2009] VSCA 58, [58].

[21] [2008] VSCA 127, [15].

[22] [1998] VSCA 144; [1999] 1 VR 706.

[23] [2007] VSCA 129; (2007) 172 A Crim R 181.

[24] [2003] VSCA 9.

[25] (1992) 58 A Crim R 337.

[26] [2003] VSCA 220.

[27] [2007] VSCA 129; (2007) 172 A Crim R 181, [23] (Ashley and Redlich JJA agreed with Nettle JA).

[28] [2007] VSCA 129; (2007) 172 A Crim R 181, [29].

[29] (2004) VSCA 222, [21].

[30] [2004] VSCA 37; (2004) 8 VR 9, 13, [11]-[12] (Chernov JA, with whom Vincent JA and Bongiorno JA agreed). See also R v Yates [1985] VicRp 3; [1985] VR 41.

[31] R v CJK [2009] VSCA 58, [23] (Warren CJ, with whom Vincent and Neave JJA agreed).