O A A v The Queen [2010] VSCA 155

1 The appellant, OAA, pleaded guilty in the County Court at Melbourne, on 11 February 2008, to five counts of incest. He was sentenced on 25 June 2008 as follows:

The appellant was declared a serious sexual offender in respect of Counts 3 to 5.

2 The victim of the offending is the appellant's daughter, J, who was born in January 1993. The appellant left his wife when she was pregnant with J and had only intermittent contact with his daughter until she was aged four. He had no further contact with his daughter until April 2005 when, on the recommendation of the Department of Human Services, he commenced fortnightly access. At that time, J was aged 12, and the appellant was aged 35.

3 Count 1 on the presentment alleged a single act of incest that was said to have taken place between 1 July 2005 and 12 July 2005, in which the appellant inserted his tongue into J's vagina ('tongue/vaginal penetration'). That incident took place during an access period, while J was staying at the house shared by the appellant, his second wife, M, and M's daughter, A. The appellant entered the bedroom occupied by J, and asked her if she would have sex with him. She essentially agreed, but stopped him from having sexual intercourse with her because, so she said, he did not have a condom.

4 Count 2, unlike count 1, was said by the Crown in its Summary, pursuant to s 6 of the Crimes (Criminal Trials) Act 1999, to be a 'representative count' of 'tongue/vaginal penetration'. It too was said to have taken place some time between 1 July 2005 and 12 July 2005. According to the Summary provided by the prosecutor during the course of the plea, this offending took place on the day after the offending that gave rise to count 1. On this occasion, the appellant had procured a condom. The specific act of 'tongue/vaginal penetration' that formed the basis of count 2 was a prelude to sexual intercourse.

5 It should be noted, at this stage, that count 2, as set out in the presentment, did not contain the expression normally found in relation to multiple sexual offences committed within the same period, 'on an occasion other than that referred to in count 1'. That was plainly an oversight on the part of the Crown. Its significance is a matter to which we shall shortly return.

6 Count 3 involved the appellant having inserted his penis into J's vagina ('sexual intercourse') moments after the 'tongue/vaginal penetration' that gave rise to count 2. Count 3 was designated by the Crown, in its Summary, as a 'representative count', occurring between 1 July 2005 and 12 July 2005. J's evidence was that, after this occasion, the appellant had sexual intercourse with her whenever she came over to visit for weekends, or holidays.

7 Count 4 involved a single act of penile penetration by the appellant into J's mouth ('penile/oral penetration'). This too was said to be a 'representative count'. This offence was particularised as having taken place some time between 1 July 2005 and 25 December 2006, a period of some 18 months. It appears that towards the end of January 2006, J began residing with the appellant on a permanent basis. J recalled that, some time thereafter, and as a prelude to sexual intercourse, the appellant introduced his penis into her mouth.

8 Count 5 was also said to be a 'representative count'. It alleged sexual intercourse which was said to have taken place between the 1 November 2006 and 25 December 2006, a period of some seven and a half weeks. Although the position is not altogether clear, it seems from the prosecutor's summary that this act of intercourse followed immediately upon the offending the subject of count 4.

9 Shortly before Christmas 2006, by which time J was aged 14, she discovered that she was pregnant. A doctor whom she consulted estimated the date of conception to have been a little over a month earlier, in November 2006.

10 On 25 January 2007, J's pregnancy was terminated. Following DNA analysis, the appellant's paternity was clearly established.

11 The appellant was charged with these offences on 26 September 2007.

12 By Notice of Appeal, filed on 16 March 2010, the appellant relies upon the following grounds of appeal :

Ground 1: The sentencing discretion miscarried in that the Appellant was sentenced on the basis that Count 2 was a representative count - in circumstances where the only other incident alleged within the relevant period was the conduct comprising Count 1 on the Presentment.

Ground 2: The sentencing discretion miscarried in that the Appellant was sentenced on the basis that Counts 2, 3, 4 and 5 were representative counts involving conduct that occurred outside the relevant time frames specified in each of those counts.

Ground 4: The Learned Sentencing Judge erred in failing to have sufficient regard to the principle of totality.

Ground 5: The sentence imposed is manifestly excessive.

13 At the commencement of oral argument, Senior Counsel for the Crown very properly drew attention to the fact that count 2 on the presentment was drafted in identical terms to count 1. Perhaps more significantly, it did not make clear that the offending alleged referred to an occasion other than that which was the subject of count 1. It was submitted on behalf of the Crown that this was nothing more than a formal error since the Summary provided to the defence, and relied upon by the Crown on the plea, made it perfectly clear that the incident which was the subject of count 1 occurred on a day other than that which was the subject of count 2. In other words, there was no question of duplicity, double jeopardy, or double punishment. These were two entirely separate offences committed on separate dates, fully particularised, and as to which there was no uncertainty.

14 The appellant, of course, pleaded guilty to both counts 1 and 2. His counsel frankly acknowledged that he had not been prejudiced in any way by the failure to include the usual particular in the second count, 'on an occasion other than that referred to in count 1'. Nonetheless, he submitted that the Crown's error in drafting counts 1 and 2 in identical terms meant that, on its face, the presentment made it appear that the appellant had pleaded guilty to the same offence twice, and twice been punished for that offence. He submitted that the appropriate course was to extend time within which to seek leave to appeal against conviction, grant that leave, allow the appeal, and quash the conviction on count 1.

15 Senior Counsel for the Crown took issue with that submission. He submitted that the irregularity was of an entirely technical nature, and that it could be cured by granting leave, even at this stage, to amend count 2. He further submitted that the plea had proceeded upon the basis that counts 1 and 2 involved separate offences, clearly differentiated in the Crown Summary, and that any procedural error of the kind identified had not given rise to any miscarriage of justice.

16 We consider that this Court has an inherent or, at the very least, an implied power to amend a presentment, even at the stage of an appeal, if the matter is of a formal nature only, and the amendment can be made without injustice.[1] It is well-established that a trial judge can grant leave to amend the wording of a count even after a verdict of guilty has been returned.[2] In one case, the amendment involved including a reference to the particular statute said to have been contravened in the count, though no one had been under any misapprehension as to the source of that offence throughout the trial, and prior to verdict.[3] Minor amendments of that nature should be able to be made at any stage of a proceeding. There are many examples of appellate courts having approached the question of amendment in this way, and having declined to quash convictions based upon errors of an entirely formal nature.[4]

17 In our view, the Crown's submission should be accepted. The appellant knew full well what the allegations against him were, and he nonetheless elected to plead guilty. It would be elevating form over substance to now pretend that there was some latent uncertainty in the case he had to meet, and that his conviction on one of the counts in question should be quashed. One might ask rhetorically, if there was a problem with count 1, why should not the same be said of count 2? And if counts 1 and 2 are bad, why is not the entire presentment flawed?

18 The short answer is that the power to amend exists precisely to meet such cases. Given, as will be seen, that the Crown has conceded sentencing error, and the need for the appellant to be re-sentenced, it is entirely appropriate that such re-sentencing take place in relation to a presentment that is properly worded and particularised.

19 For these reasons, we would grant leave to amend count 2. It goes without saying that we would refuse the application to extend time within which to seek leave to appeal against conviction.

20 When the sentencing judge came to sentence the appellant, he did so on the basis that count 2 was a 'representative count'. However, the only other incident involving 'tongue/vaginal penetration', within the specified period, was that which was the subject of count 1.

21 The Crown conceded before us that the description of count 2 as a 'representative count', in the Crown Summary, involved error. The prosecution was not entitled to rely on the subject matter of count 1, which related to a specific incident itself the subject of a charge, as forming the basis upon which count 2 could be described as a 'representative count'. The essence of a 'representative count' is that the relevant acts cannot be sufficiently particularised by the prosecution so as to legitimately frame specific individual counts.

22 The concession made on behalf of the Crown before this Court was appropriate. It was not open to treat count 2 as a 'representative count'.

23 In sentencing the appellant, the judge noted that counts 2 to 5 covered the various forms of sexual abuse to which the appellant had subjected his daughter over a period of 18 months. In one sense that was not strictly accurate. The relevant counts were confined as follows:

• count 2 - 1 July 2005 to 12 July 2005 (tongue/vaginal penetration);

• count 3 - 1 July 2005 to 12 July 2005 (sexual intercourse);

• count 4 - 1 July 2005 to 25 December 2006 (penile/oral penetration); and

• count 5 - 1 November 2006 to 25 December 2006 (sexual intercourse).

24 While it is true that the overall sexual abuse occurred over an 18 month period, it was only count 4 that was cast sufficiently broadly, in its terms, to encompass such a time span. Nonetheless, we are not persuaded that the sentencing judge erred in characterising the offending in this way. His Honour's comments should be understood as a reference to the totality of what the appellant did, over that lengthy period, and not as indicating a misconception of the duration of the specific offending.

25 It follows that ground 2, in this respect, is not made out.

26 However, the Crown conceded that ground 2 was made out in relation to count 3. It will be recalled that the Crown pleaded count 3, which was a count involving sexual intercourse said to have occurred between 1 July 2005 and 12 July 2005, as a 'representative count'. Yet it relied upon numerous acts of sexual intercourse which fell entirely outside that time frame as being offences of which count 3 was representative.

27 Having been led into error by the Crown, the sentencing judge sentenced the appellant upon a factual basis that was not open given the way in which count 3 was framed. It follows that ground 2, insofar as it affects count 3, is made out.

28 Having regard to the Crown's concessions regarding grounds 1 and 2, and the need to re-sentence the appellant, it is unnecessary to deal further with this ground.

29 Once again, having regard to the concessions made regarding grounds 1 and 2, and the need to re-sentence the appellant, it is unnecessary to deal further with this ground.

30 There is no doubt as to the gravity of these offences. The appellant's daughter was aged between 12 and 14 at the time of the offending, whereas he was a mature adult, in his mid 30's. As with any case of father/daughter incest involving a young child, the appellant's conduct must be regarded as utterly abhorrent. Necessarily, it involved a gross breach of trust.

31 The offending was, if anything, made worse by the fact that J, initially at least, though for a short time, resisted the appellant's advances. The appellant's criminality was heightened by the lengthy period over which the sexual abuse continued.

32 In addition, the gravity of the offending was aggravated by the appellant's having, on several occasions, taken J away from a DHS placement in order to continue the sexual abuse.

33 Importantly, the appellant's conduct led to J having fallen pregnant, and having undergone a termination. Moreover, as in many cases of this type, J suffered a number of debilitating and permanent consequences as a result of her father's offending.

34 Plainly, both general and specific deterrence loom large among the factors relevant when re-sentencing the appellant for these offences. It is also necessary to indicate, in the clearest possible terms, this Court's denunciation of his conduct. We note that he is to be sentenced as a 'serious sexual offender' in relation to counts 3 to 5.

35 There are some mitigating factors. The appellant is entitled to rely upon his plea of guilty, and in particular, the finding by the sentencing judge that this was indicative of remorse. He can also call in aid his previous good character, his excellent work record, and his prospects of rehabilitation.

36 The maximum penalty for the offence of incest is 25 years' imprisonment.[5] We note that the sentencing judge in this case was led into error by the Crown in that he was informed by the prosecutor below that the penalty for this offence was 20 years' imprisonment. In the context of this case, any error on the part of his Honour regarding the maximum penalty for incest could not have operated to the prejudice of the appellant.

37 Insofar as current sentencing practices for offences of this kind are concerned, these are usefully dealt with in Sentencing Snapshot Number 43.[6] The median total effective term of imprisonment for the offence of incest during the period 2002-3 to 2006-7 seems to have been of the order of six years, with a non-parole period of four years. Individual counts of incest have tended to draw sentences of about four years. The single heaviest total effective sentence for incest recorded in this Snapshot was 15 years' imprisonment, with a non-parole period of 11 years.

38 Some further assistance in determining current sentencing practices for this offence may be gained from a consideration of sentences imposed in other, not dissimilar cases.

39 In R v LFJ,[7] for example, the appellant committed a number of acts of incest with his son who was aged between 12 and 13 at the time. The abuse persisted over a period of two years, from January 2004 to December 2005. The appellant received a total effective sentence of seven years, with a non-parole period of five years.

40 In DPP v EB,[8] the respondent committed a number of acts of incest with his daughter, who was aged between five and seven at the time. The offending took place between 2005 and 2007. The Director's appeal having succeeded, the respondent was re-sentenced by this Court. He received a total effective sentence of 11 years' imprisonment, with a non-parole of seven years.

41 It is also helpful to have regard to the various Tables appended to the recent decision of this Court in DPP v CPD.[9] In particular, Table D sets out a series of incest cases, decided between 2002 and 2008, in which this Court gave consideration to the relevant sentencing principles for that offence.

42 The principles which govern sentencing for crimes of this nature committed against a child are well established. Such offending is viewed most seriously. The reason for that approach was explained by Hedigan AJA in R v Ware,[10] where his Honour said:

A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable damage to the victim.[11]

43 It is regrettable that the Crown Summary used in the present case for the purposes of the plea was put together in an altogether unsatisfactory form. The 'representative counts', those being counts 2, 3, 4 and 5, were, in the main, not capable of bearing that description. Certainly, counts 2, 3 and 4 were in no sense properly 'representative' of other offending.

44 At the same time, and given the fact that count 5 could be regarded as a 'representative count', it is important to bear in mind the principles which apply when sentencing an offender upon such a basis.

45 In R v SLB,[12] Batt JA stated those principles. His Honour said:

Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone. The evidence of the effect of the respondent's conduct upon the victims in this case is illuminating and extremely disquieting: besides the traumatic effect of the conduct upon them, it has confused them as to the boundaries of their bodies and as to questions of decency and propriety.[13]

46 When sentencing an offender as a 'serious sexual offender', pursuant to s 6D of the Sentencing Act 1991, the Court is to regard the protection of the community as the principal purpose for which the sentence is imposed. The Court may also 'impose a sentence longer than that which is proportionate to the gravity of the offence'. The sentencing judge was not persuaded that a disproportionate sentence was appropriate in this case. Nor are we.

47 In relation to cumulation, s 6E of the Sentencing Act 1991 provides as follows:

Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

48 Nevertheless, it is important to understand that this provision should not result in the Court imposing a sentence which can properly be characterised as 'crushing'.[14]

49 All of these matters must be taken into account, and synthesised, in re-sentencing the appellant.

50 The appeal should be allowed. The sentences imposed below on each of counts 1 to 5 will be set aside. In lieu thereof, the appellant should be sentenced as follows. On count 1, two years' imprisonment. Count 2, which involves virtually identical offending, and is in no sense a 'representative count', also warrants two years' imprisonment. On count 3, in relation to which the appellant is to be regarded as a 'serious sexual offender', but which is not a 'representative count', four years' imprisonment. On count 4, in relation to which the appellant is to be regarded as a 'serious sexual offender', and which is not a 'representative count', three years' imprisonment. On count 5, in relation to which the appellant is to be regarded as a 'serious sexual offender', and which is the only count which is to be regarded as a 'representative count', five years' imprisonment.

51 It is appropriate that there be a measure of cumulation. The base sentence is that of five years on count 5. On that base sentence, we would cumulate one year of the sentence on count 1, and three years of the sentence on count 3.

52 This gives a total effective sentence of nine years' imprisonment. We fix a non-parole period of six years and six months. Pursuant to s 6AAA of the Sentencing Act 1991, we indicate that, but for the appellant's plea of guilty, we would have imposed a total effective sentence of 12 years' imprisonment, with a non-parole period of nine years.

53 For the avoidance of doubt, we confirm the order requiring the appellant to be registered for life under the Sex Offenders Registration Act 2004.

[1] Section 372 of the Crimes Act 1958, which continues to apply to this appeal, provides specifically for such a power of amendment though it is expressed in terms to apply 'before trial or at any stage of a trial'. It would be an undue extension of that language, we consider, to treat this appeal as relevantly a 'stage of the trial'. However, the matter was not argued before us, and we express no final view about it.

[2] Nelson v R (1977) 65 Cr App R 119.

[4] See for example, R v Power [1960] VicRp 60; [1960] VR 373; R v Street [1960] VicRp 103; [1960] VR 669; and R v Hoser [1998] 2 VR 535. In some of these cases, the matter was dealt with by the simple expedient of invoking the proviso. If necessary, we would do the same in response to any argument that this Court did not have the power to grant leave to amend.

[5] Section 44(1) of the Crimes Act 1958.

[7] [2009] VSCA 134.

[8] [2008] VSCA 127.

[9] [2009] VSCA 114; (2009) 22 VR 533.

[10] [1997] 1 VR 647.

[11] Ibid, 653. This passage was cited with approval in R v Bellerby [2009] VSCA 59, [41].

[12] [1998] VSCA 144; [1999] 1 VR 706.

[13] Ibid, 726. This passage was cited with approval in R v GJN [2005] VSCA 183, [6]; R v GLH [2008] VSCA 88, [19]. See also DPP v CDP [2009] VSCA 114; (2009) 22 VR 533, 542-4. Of course, the very fact that an offender is dealt with for multiple counts is of itself sufficient to negate any suggestion that the offending is an isolated event. In that sense, characterising a particular count as 'representative' may be of limited significance in such cases. See also R v CJK [2009] VSCA 58; (2009) 22 VR 104, 113-4.

[14] R v Yates [1985] VicRp 3; [1985] VR 41, 48.