Nelson (a pseudonym) v The Queen [2020] VSCA 36

1 On 28 November 2018, the applicant, 'Wayne Nelson', pleaded guilty in the County Court at Melbourne to the charges set out in the table below. He was sentenced as follows:

Sexual penetration of a step‑child [s 50D of the Crimes Act 1958]

Sexual penetration of a step‑child [s 50D of the Crimes Act 1958]

Sexual assault of a child under the age of 16 [s 49D of the Crimes Act 1958]

Sexual activity in the presence of a child under the age of 16 [s 49F of the Crimes Act 1958]

Use carriage service to transmit indecent communication to a person under 16 [s 474.27A Criminal Code Act 1995 (Cth)]

Contravention of a family violence safety notice [s 37(2) of the Family Violence Protection Act 2008]

13 years and 6 months' imprisonment with a non-parole period of 10 years.

Applicant sentenced as a serious sexual offender on charges 3 and 4;

order made for the taking of a forensic sample pursuant to section 464ZF of the Crimes Act 1958;

and ordered to comply with the requirements of the Sex Offenders Registration Act 2004 for life.

2 The applicant seeks leave to appeal against sentence on the following ground:

In all of the circumstances of this case a total effective sentence of 10 years and 9 months['] imprisonment is manifestly excessive; and further that each of the individual sentences and the orders for cumulation imposed on charges 1, 2, 3 & 4 is manifestly excessive.

3 For the reasons that follow, we would refuse leave to appeal.

4 In March 2015, 'Melea Armenta' arrived in Australia from Colombia. Her young daughter, 'Lorely Armenta', the complainant, remained in Colombia with her grandparents. Shortly after her arrival, Melea met the applicant, and they commenced a relationship.

5 In February 2016, the couple travelled to South America. There, they became engaged to be married. It was during this trip that the applicant first met Lorely, who was then aged 11.

6 In March 2016, the applicant returned to Australia on his own. He moved into a property in Patterson Lakes, and eventually sub-let two bedrooms of the house to subtenants. One of these was 'Katherine Glenn'.

7 In late June 2016, Melea returned to Australia, and married the applicant. Some 14 months or so later, in August 2017, Lorely arrived here and joined Melea and the applicant at the Patterson Lakes home.

Circumstances surrounding the various offences

8 Between 9 August 2017 and 19 September 2017, the applicant happened to be alone with the complainant in his bedroom. The two of them kissed, and Lorely bit his lip. He told her that this excited him. He placed her hand onto his erect penis, over his clothes (uncharged acts). The applicant then exposed his penis and placed his hand at the back of Lorely's head, pushing it towards his penis. He inserted his penis into her mouth (charge 1 - sexual penetration of a step-child - incest). He then withdrew his penis from her mouth and proceeded to masturbate to ejaculation in her presence (uncharged act).

9 On a separate evening, between 9 August 2017 and 19 September 2019, the applicant was driving to pick up Melea from her place of work, in Richmond. Lorely was also in the car, sitting in the passenger seat. The applicant parked the car in a secluded area. Lorely then touched his penis on the outside of his clothing. He then kissed her, and touched her vagina, on top of her clothing. He attempted to unbutton her pants but she stopped him, she told him that she had her period (uncharged acts). The applicant then proceeded to remove his penis from his pants, and orally penetrated Lorely with it. He then ejaculated in her mouth (charge 2 - sexual penetration of a step-child - incest).

10 On an occasion between 9 August 2017 and 10 January 2018, the applicant and Lorely were alone together in a bedroom at the Patterson Lakes home. The applicant engaged in simulated sexual intercourse with her while they were both fully clothed (part of charge 3 - sexual assault of a child under the age of 16). While this occurred, the applicant touched and sucked her breasts, having adjusted her top to enable him to do so (uncharged act).

11 The applicant engaged in simulated intercourse with the complainant on a second occasion (part of charge 3 - sexual assault of a child under the age of 16). During this second occasion, the applicant again touched and sucked Lorely's breasts, once again having adjusted her top to enable him to do so.

12 Between 9 August 2017 and 10 January 2018, the applicant sent sexually explicit images to Lorely. He initiated a video call with her over Facebook. During that video call, he exposed and masturbated his penis on camera (charge 4 - sexual activity in the presence of a child under the age of 16).

13 On a further occasion between 9 August 2017 and 10 January 2018, the applicant sent multiple explicit images, and a video, to Lorely. The images depicted the applicant's penis, and the video showed him masturbating (charge 5 - using a carriage service to transmit indecent communications to a person under 16).

14 On 10 January 2018, Lorely returned to Colombia. She had gone to meet her mother, who had flown there a few days earlier. At about this time, the applicant and his two subtenants had moved to a new address in Lyndhurst.

15 On 2 March 2018, Lorely and her mother returned to Australia. They moved into the Lyndhurst home.

16 At this time, Lorely was aged 12. On one occasion, the applicant cuddled her in the kitchen of the Lyndhurst home. They kissed each other on the lips (uncharged acts).

17 On or about 28 March 2018, Lorely told Katherine Glenn that the applicant had orally penetrated her. She added that the applicant had ejaculated into her mouth. Ms Glenn subsequently informed Melea of Lorely's allegations, and spoke to the applicant about them.

18 On 1 April 2018, Lorely called 000 and requested police assistance. When police arrived, Melea informed them of her daughter's allegations. Police detained the applicant under family violence holding powers.[2] At 7:00 pm that evening, a family violence safety notice was issued. One of the conditions of that notice was that the applicant be prohibited from attending the Lyndhurst address. This condition was explained to him at 8:12 pm that evening, immediately before he was released from police custody.

19 At about 9:00 pm that night, the applicant, in breach of the family violence safety notice, returned to the Lyndhurst address. He spoke to Lorely and Melea for about 10 minutes before leaving (related summary charge - contravention of a family violence safety notice). He was observed at the property by Ms Glenn and by the other subtenant.

20 At 10:20 pm on 3 April 2018, the applicant was arrested and remanded in custody. He made full admissions to police. During this time, police executed a search warrant at the Lyndhurst address. Mobile phones belonging to Lorely and to Melea were seized. Analysis of those devices revealed records of conversations between the applicant and Lorely where he had urged her not to tell others about the offending, as it had been their 'secret'.

21 After setting out the background and circumstances surrounding the offending, the judge turned to Lorely's victim impact statement. It highlighted her feelings of isolation and frustration at the fall-out from the applicant's offending. Her Honour then turned to the applicant's plea of guilty. She noted that his plea had been made 'at the earliest opportunity', and observed that it had utilitarian value.[3]

22 The judge then proceeded to outline, in some detail, the applicant's personal circumstances. He was born in November 1980 and is now aged 39. At the time of the offences, he was aged about 36. Her Honour noted that he had left school after Year 10, and had completed an apprenticeship as a butcher. He worked in that role for 22 years, eventually rising to the position of manager of a network of 18 butcher shops. She further noted that the applicant had been proud of his work ethic, and acknowledged that she would accord mitigatory weight to his positive work history.

23 Her Honour observed that the applicant had had a conservative upbringing, as his family had been devout members of the Christian Brethren. In 2008, he was expelled from that order when he divorced his first wife, who was also a member of that sect.

24 The applicant had two children from that first marriage. He maintained contact with them until he commenced his relationship with Melea. As a result, he no longer had any contact with those children, or with any other members of his immediate family.

25 The applicant had also a married a second time. He had had a son with that second wife, who was aged five at the time of sentence. He did not have any contact with that child.

26 The judge then turned to the applicant's time on remand, noting that it had been productive. He had completed a number of courses, including a Certificate II in Cleaning Operations and a Certificate II in Construction Pathways. Her Honour said that these efforts at rehabilitation would be factored into the sentence to be imposed.

27 The judge then considered, in some detail, a psychological report prepared by Mr Patrick Newton on 15 November 2018. That report stated that following his arrest, the applicant had experienced a brief, but intense, period of reactive depression, which included suicidal ideation. Mr Newton also observed that the applicant was emotionally and socially immature, and had difficulty in sustaining intimate relationships. Further, he indicated concern regarding the applicant's 'sexual adjustment'. Mr Newton noted that the applicant regarded himself as the passive party in the relationship with Lorely, and considered that she had a 'malevolent desire to destroy his marriage'.

28 Mr Newton concluded that the applicant did not appear to be suffering from any mental or personality disorder. His social reasoning and moral judgment did not seem to be impaired.

29 With regard to remorse, the judge observed that although the applicant made full admissions to police, and had pleaded guilty at the earliest opportunity, she discounted the level of remorse somewhat because he had initially denied the allegations made against him, and subsequently, had continued to maintain that Lorely had initiated the sexual contact between them.

I am prepared to allow some mitigatory weight for your expression of contrition for the offending, whilst noting that you fall short of understanding the nature of and motivation for your offending and its effect upon the victim of your abuse. And I interpolate that this is further and separate to the utilitarian value of your pleas of guilty.[4]

31 The judge then stated that the applicant's prior good character attracted 'significant mitigatory weight.'[5]

32 Finally, her Honour turned to the objective gravity of the offending. She noted that counsel who appeared for the applicant on the plea had accepted that a term of imprisonment was required. She further noted that the offending involved a breach of trust against the background of a complainant who had been in a vulnerable position. The applicant had exploited that vulnerability, particularly taking advantage of Lorely's social isolation and inability to speak English.

33 The judge characterised the offending in relation to charges 1 and 2 as 'opportunistic, callous and exploitative'. She described the objective gravity of that offending as 'within the mid-range of seriousness for [that] offence.'[6]

34 With regard to charges 3 and 4, the judge noted that protection of the community was the principal purpose to be served in sentencing on those charges. Her Honour also indicated that just punishment, denunciation, and general deterrence were live considerations to be taken into account.

35 Her Honour said that she would have regard to 'current sentencing practices' in sentencing for these offences. She observed, however, that such practices were not a controlling factor. In that regard, she referred to Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym)[7] and Shawcross (a pseudonym) v The Queen.[8]

36 With regard to the likelihood of the applicant reoffending, her Honour noted that Mr Newton had assessed this as being 'low to moderate'.[9] She said that Mr Newton considered that offence‑specific treatment and containment strategies would reduce the applicant's risk of reoffending to 'low'. However, she went on to say that the applicant should be 'heavily supervised for an extended period' upon his eventual release from custody.[10]

37 Her Honour then proceeded to sentence the applicant as set out earlier in these reasons.

38 In his written case on behalf of the applicant, Mr Rattray submitted that while the offending was undoubtedly serious, it did not warrant the length of sentence imposed. His overarching submission was that the individual sentences were each manifestly excessive, as was the total effective sentence.

39 Mr Rattray submitted that the judge was correct to characterise the objective gravity of the offences giving rise to charges 1 and 2 as 'mid-range' for offences of that kind. However, he submitted that the sentences imposed in respect of those charges did not accord with that finding. While the applicant fell to be sentenced as a serious sexual offender with regard to charges 3 and 4, Mr Rattray submitted that the offending itself, in relation to those charges, was 'not particularly grave' and should not be regarded as 'particularly serious examples' of the relevant offences.

40 Mr Rattray noted that the prosecutor on the plea had provided the judge with the Sentencing Advisory Council's 'Sentencing Snapshot' 210 between 2011-12 and 2015-16 for sexual penetration of a child under 12. He submitted that during that period, only three offenders had received individual terms of six years or more for offending of that kind. For offenders who were sentenced to terms of imprisonment for multiple offences of sexual penetration, only four offenders had received total effective terms of 10 years or more.

41 While Mr Rattray did not cavil with the judge's reference to Dalgliesh,[11] he submitted that 'current sentencing practices remain a mandatory and important consideration in sentencing an offender and their relevance in sentence ought not be lightly reduced.' Further, he submitted that such sentencing practices should not, and did not, prevent a Court from imposing a just sentence.

42 In its written case, the respondent submitted that the applicant was required to demonstrate that the sentence imposed was wholly outside the range of sentences available to the judge. In other words, he had the burden of showing that the sentence was not 'reasonably open' to the sentencing judge. It was acknowledged that although the sentences imposed, at least in totality, might be seen as 'stern', they were within range.

43 The respondent submitted that the applicant's reference to the 'Sentencing Snapshot' in his written case was misguided. The applicant was not charged with sexual penetration with a child below the age of 12. Rather, he was charged with sexual penetration of a step-child, contrary to s 50D of the Crimes Act 1958. That provision fell within subdivision (8C) of Pt 1 of the Act, which deals with incest offences. It was, therefore, submitted that the appropriate 'Sentencing Snapshot' to be considered was 'Snapshot' 217, dealing with sentences for incest between 2012-13 and 2016-17.

44 That 'Sentencing Snapshot' for incest indicated that for the relevant period, 16 offenders received sentences of between six and seven years. Moreover, nine offenders received individual sentences of between seven and 10 years. The respondent submitted that these statistics in no way assisted the applicant.

45 The respondent acknowledged that the sentencing judge did not have regard to the correct 'Snapshot', having been provided with one that involved the commission of a different offence by the prosecutor on the plea. Nonetheless, the respondent submitted, the applicant did not suffer any 'real detriment in the sentencing process as a result.'

46 It was also submitted that, in any event, the judge did not focus on current sentencing practices to any significant degree, noting correctly that they were simply one of a number of factors to be taken into account.

47 With regard to the objective gravity of these offences, the respondent observed that the applicant had abused his position of trust in relation to a vulnerable young girl whose life had been seriously damaged by reason of what had been done to her. The victim impact statement spoke eloquently of the harm which the applicant's offending had brought about.

48 The respondent noted that since Dalgliesh, sentences for incest had increased considerably. Charge 2, which involved ejaculation into the mouth of the young girl, was a particularly serious example of this offending, albeit characterised as being in the 'mid-range'.

49 With regard to charge 3, the respondent submitted that this was a representative charge involving two quite separate and distinct acts of the same kind. The offending was accompanied by conduct that amounted to quite serious uncharged acts.

50 The respondent noted that the applicant had to be sentenced as a serious sexual offender on charges 3 and 4. In those circumstances, the degree of cumulation ordered could only be regarded as reasonable, and within range.

51 All the more, the respondent submitted that the applicant had not shown that the individual sentences imposed, or the total effective sentence, were wholly outside the range. Accordingly, leave to appeal should be refused.

52 In our view, the sentencing judge approached this matter in an entirely correct manner. She took into account all mitigating factors, but balanced these against the need for adequate punishment, denunciation, and the concern for both specific and general deterrence.

53 In Grantley (a pseudonym) v The Queen,[12] a case that can be regarded as a useful comparator for present purposes, the applicant received a total effective sentence of 9 years' imprisonment with a non-parole period of 7 years for various acts of incest and indecent acts with a child under the age of 16. In that case too, the offending was characterised as 'mid-range', the offender had no relevant criminal record, and was said to be genuinely remorseful, and empathic.

54 This Court dismissed an appeal against severity of sentence. It spoke of the 'changing landscape for incest sentencing'. It stated:

In our view, the sentences imposed on the two charges of incest were well within the range reasonably open to the judge in the circumstances of the case. The sentences are wholly consistent with what has been said by this Court and the High Court about the need for an increase in sentences for mid‑range incest offences, in order to reflect the objective gravity of the offence and the moral culpability of the offender.[13]

55 Mr Rattray drew our attention to several decisions of this Court which, he submitted, were appropriate comparators, all of which involved offending that was significantly more grave than that of the applicant in this case. He relied, in particular, upon Director of Public Prosecutions v Shearer (a pseudonym).[14] This was a Crown appeal against sentence. The respondent had been dealt with for four charges of incest, all of them involving his step-daughter, aged between 11 and 14 at the time. He had a lengthy criminal history, including for violence against women. In addition, there was aggravating post-offence conduct through his attempts to persuade the complainant and her mother to withdraw the allegations made against him.

56 In Shearer, the respondent received individual sentences of 4 years' imprisonment, and a total effective sentence of 8 years and 6 months' imprisonment with a non-parole period of 5 years and 6 months. This Court held that the appeal should be allowed and the respondent resentenced to individual terms of 6 years' imprisonment and a total effective sentence of 10 years and 6 months' imprisonment with a non-parole period of 7 years and 6 months.

57 Self-evidently, the fact that Shearer's offending might be regarded as objectively more grave than that of the applicant, but resulting in a slightly lesser overall sentence (three months less on the total effective sentence), does not demonstrate, in any way, that the sentence imposed on the applicant in this case was wholly outside the range. Each case must be considered in light of its own particular facts.

58 In Shearer, the respondent was of Aboriginal descent, had come from a dysfunctional family, and had been sexually abused as a child. He was a chronic alcoholic, and had an IQ which was described as between 'borderline' and 'low‑average'. He also had a lengthy history of depression over many years. Plainly, there were factors present in Shearer that could be regarded as mitigating that were not present, or available to the applicant by way of mitigation, in this case.

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

[2] Family Violence Protection Act 2008, s 15.

[3] DPP v Nelson (a pseudonym) [2018] VCC 2135 [33] ('Reasons').

[7] (2017) 262 CLR 428; [2017] HCA 41 ('Dalgliesh').

[8] [2018] VSCA 295. See, Reasons [72].

[11] See [35] above.

[12] (2018) 272 A Crim R 340.

[13] Ibid, 349 [34] (citation omitted).

[14] [2019] VSCA 47 ('Shearer'). Our attention was also drawn to McCray (a pseudonym) v The Queen [2017] VSCA 340; DPP v Tewksbury (a pseudonym) (2018) 271 A Crim R 205; Carter (a pseudonym) v The Queen (2018) A Crim R 170; and DPP v Walsh (a pseudonym) [2018] VSCA 172. None of these cases are of any great assistance to the applicant in this case.