P D A v The Queen [2010] VSCA 94

1 This is an appeal against sentence imposed in the County Court on 29 September 2008. The appellant pleaded guilty to six counts and was sentenced as follows:

2 All six counts were 'rolled-up' counts. Each count is constituted by a number of particular acts which occurred during one or more of seven 'episodes' in the period October 2006 to April 2007. A summary of what occurred during each episode, adapted from the Crown opening, appears as an appendix to these reasons.

3 The following table was helpfully provided by the prosecutor to the sentencing judge. It identified the particular acts making up each of the counts, and the episode(s) in which these particular acts occurred.

PARTICULAR ACT(S) AND EPISODE(S) IN WHICH ACT(S) OCCURRED

Indecent acts with or in the presence of a child under 16, between 1 October 2006 and 30 June 2007 at various places

Episode 1 - Touching breasts and rubbing penis on complainant's back

Indecent acts with or in the presence of a child under 16, between 3 December 2006 and 30 June 2007 at various places

Episode 3 - Masturbating himself in complainant's presence

Sexual penetration of a child under 16 (finger/vagina) between 3 December 2006 and 30 June 2007 at various places

Sexual penetration of a child under 16 (tongue/vagina) between 3 December 2006 and 30 June 2007 at various places

Sexual penetration of a child under 16 (penis/mouth) between 10 December 2006 and 30 June 2007 at various places

Sexual penetration of a child under 16 (penis/vagina) between 10 December 2006 and 30 June 2007 at various places

4 As senior counsel for the Crown said, it is unusual for this Court to be dealing with rolled-up counts. The correct approach to sentencing in such a case is clear, however.[1] Rolled-up counts can only be used by agreement, and only for the purposes of a plea of guilty. The Court is required to impose a sentence on each such count which reflects each of the individual offences incorporated within that count. It follows that single count sentences in other cases are of much more limited utility than usual as a basis for comparison.

5 As Table B indicates, counts 3, 4, 5 and 6 concerned four different types of penetration. Count 3 is constituted by five separate acts of penetration; count 4 by two; count 5 by 10; and count 6 by six separate occasions and/or acts of penetration.

6 I will deal first with grounds 2 and 3, which concern a reference in the sentencing reasons to 'grooming'. The complaint relates to the following passage:

Of concern, Mr Ball reports your lack of insight into your offending but notes that your offending would otherwise, given your other traits, be extremely out of character for you. Mr Ball could find no evidence of deviant arousal. You regarded your offending as part of being a supportive partner, as opposed to that of a grooming exploitative predator.

As I discussed with Mr Sexton, I am concerned in particular because of the vulnerability of the victim in relation to your offending. Although I accept, based on the material before me, the numerous mutual text messages between the two of you of a sexually explicit nature that developed over time. It seems to me there is an element of grooming and exploitation. However, it needs to be seen in the context of the age of the victim, 15 nearly 16, and also her involvement in it. In saying this, I am in no way suggesting your offending is excusable - it is not.[2]

7 Ground 2 argues that it was not open to the judge to sentence the appellant on the basis that he had groomed the victim. Ground 3 argues that there was a denial of natural justice in the judge having done so without sufficiently warning the defence of this possibility.

8 In my opinion there is no substance in either of these grounds. As Buchanan JA pointed out in argument, 'grooming' is not a term of art but connotes something along the lines of steps taken by the offender to persuade, or prepare, or encourage, the object of sexual attention to participate in sexual activity. This language is consistent with what was suggested by counsel on both sides in R v Walker.[3]

9 As senior counsel for the Crown pointed out, the undisputed chronology of this sexual relationship was one of progression - over time - from limited sexual contact at first to a full range of penetrative activity, of all available kinds and in a variety of places. There were numerous text messages passing both ways, a number of which were - on the appellant's own admission - quite explicit. It seems to me to be an unexceptionable description of these facts to say that the older man approached the object of his sexual interest in such a way as to encourage her to participate in sexual activity with him. This conclusion is unaffected by the fact that the victim herself (R) was a participant in the sexually explicit exchanges by text message and that there was no coercive element at all to the sexual activity.

10 Unsurprisingly, in my view, her Honour raised concerns on the plea about R's vulnerability and about there having apparently been some exploitation. Her Honour said to defence counsel:

I guess as a bit of a concern too is that he knew, as I understand his answers in the record of interview ... that she was, in a sense, vulnerable in that she was suffering depression, she was complaining about ... how Mum was treating her at home.

...

I guess, you know, it was something, if he wanted to, he could play on as the sympathetic ear.[4]

...

... [W]e are talking here about a young girl who was vulnerable, may well have gone along with it all in the end but saw him as someone it seems on the material to help her get away from the home situation.

...

And yes, it may well have been that ultimately it was agreed to, consensual conduct, but we are still dealing with a young girl who was looking for attention, looking for affection and got it but was very much the wrong sort.[5]

11 As the appellant admitted in interview, he asked R at one point about the extent of her sexual experience. That seems to me to have demonstrated his interest in progressing the sexual relationship. It is also significant that when, at the beginning of December 2006, R told the appellant she thought she was being 'used' by him - there had been at that stage no penetrative sex - he told her for the first time that he thought of her as his girlfriend. That was evidently intended to give R the reassurance needed for her to allow the sexual relationship to continue to develop.

12 I turn to the natural justice point. On behalf of the appellant it is submitted that the Crown did not argue below that the seriousness of the offending was aggravated by anything described as 'grooming'. In my view, that is nothing to the point. What matters is that the judge herself (who, of course, had to make the sentencing decision) squarely raised the issue. Moreover, it was an issue which plainly arose on the face of the materials before the Court.

13 The answer given by defence counsel on the plea, and again by counsel for the appellant this morning, was that the expert psychologist retained by the defence had expressed the opinion that there was 'no evidence of deviant arousal'. As it seems to me, that was no answer at all to the judge's question about exploitation of vulnerability. The issue of deviance concerned the separate issue of whether the appellant met the diagnostic criteria for paedophilia. (He did not.)

14 What the expert did say was that the appellant 'relates to the offences as a supportive partner, as opposed to a grooming and exploitative predator'. As her Honour's reasons make clear, however, she formed a different view, as she had clearly foreshadowed on the plea that she might. The question of whether there was exploitation had to be decided objectively, as her Honour did. Plainly enough, the appellant's self-perception could not be determinative.

15 In my opinion there is no natural justice point. What natural justice required was that a point potentially adverse to the appellant be raised by the judge so that it could be addressed by his counsel. That is exactly what her Honour did. Natural justice does not require a judge to identify in advance what her findings on any particular matter might be.

16 The Court would only interfere on the ground of manifest excess if it were demonstrated that no reasonable judge in the position of this sentencing judge could have imposed this sentence on this offender for this offending.[6] In my opinion the sentences imposed were well open to the judge. They were moderate in the circumstances.

17 This was objectively exploitative conduct. It was perfectly clear to the appellant, as he acknowledged, that R was a young girl in great distress. As he said several times in the course of his interview, she was suicidal. This was unarguably a circumstance where his obligation of care, as an adult dealing with a young girl in distress, compelled him to put out of his mind altogether any sexual interest he might otherwise have had.

18 His response to the situation strains credulity. For example, he received a call from R at nearly midnight. She was crying. She said she was running away from home. He told police, 'It played on my soft spots, played on my sympathy that she was going through that'. But, when he met up with her, they had sex in the back seat of his car. On another occasion, R 'was adamant she was going to commit suicide'. The appellant told police 'I just felt so sorry for her, and then - I went down, and these things [sexual intercourse] happened'.

19 As this Court said in DPP v DDJ,[7] it is a very serious matter when an older man takes advantage, as this appellant did, of a vulnerable younger girl who is crying out for help. It is close to unthinkable, in my view, that a man of 37 with daughters of his own could convince himself that the right way to respond to a plea for help from a girl threatening suicide was to have sex with her.

20 The repetition of the sexual abuse only made it worse. This was a man who, by his own admission, knew that what he was doing was wrong. Yet he kept going back for more sexual encounters. When interviewed, he seemed wholly unable to acknowledge that it was his own sexual interest which made him keep returning. When asked why he kept going back for sex, he said ' I tried to get out of it but the messages kept coming in ... And a lot of it was sympathy'. When asked at the end of the interview to state his reason for sexually penetrating a child under 16, he replied: 'She consented to do it, and she wanted to do it'.

21 As the prosecutor pointed out on the plea, the appellant admitted in the interview that he should have known better but he told himself he would not get caught. That, it seems to me, was a very revealing answer. It showed that the appellant was perfectly well aware that this was illicit sexual activity. He went ahead knowing that it was unlawful and wrong, hoping that he would not be found out.

22 Senior counsel for the Crown has drawn attention to the Sentencing Snapshot for the offence of sexual penetration of a child aged between 10 and 16.[8] It is unnecessary for present purposes to set out the details of single count sentencing for this offence. Suffice it to say that, given the number of individual acts of penetration involved in the various rolled-up counts of sexual penetration, these sentences appear moderate in the circumstances. It is clear that her Honour was careful in imposing sentence on each count to have regard to the number of individual acts rolled-up in that count.

23 The appellant was sentenced on the basis that he was remorseful. In my opinion this was a somewhat generous finding. As I read the materials, the appellant's concern was almost exclusively for himself. He was certainly regretful at having been found out. He was certainly very embarrassed and ashamed, and did not want family or friends to know. But I can find no reference anywhere to his having expressed regret for the harm which he caused R. It is clear from her victim impact statement that she has suffered very considerable harm.

24 The question of remorse is relevant to the question we have to answer, which is whether these sentences were open to this judge in relation to this offending. For the reasons I have given, I am quite satisfied they were. I would dismiss the appeal.

1 At the time of the offending, the appellant was 37 years of age. The complainant was 15 years of age at the time of the offending.

2 In this period the appellant and the complainant met a number of times and often messaged each other by mobile phone and internet. In October or November 2006 the appellant and the complainant arranged to meet before she went to school. The appellant drove the complainant to [ ]. They talked and sat together. The appellant had his arms around the complainant and touched her breasts over her clothing (count 1).

3 Subsequently, the complainant and the appellant made further arrangements via mobile phone messaging and internet messaging to meet two days later. That meeting entailed the appellant driving the complainant to [ ], where they kissed. The appellant then drove to [ ] where both the appellant and the complainant got into the back seat of the appellant's car. The complainant agreed to the appellant taking his shorts off, following which she sat between the appellant's legs. The appellant's erect penis was against the complainant's back (count 1).

4 Further contact ensued between the appellant and the complainant. On 1 December 2006 the complainant sent the appellant a message saying she felt she was being used. The appellant responded to the effect that he thought of the complainant as his girlfriend. She says that from that time they had a boyfriend/girlfriend relationship.

5 On 2 December 2006, they arranged to meet after [a night event]. The appellant went to the complainant's bedroom window and the complainant came outside to meet him. They kissed each other and the appellant caressed her. The appellant put his hand inside her pants and inserted his finger into her vagina (count 3). The appellant also licked the complainant's vagina (count 2) and again put his finger in her vagina (count 3).

6 The appellant and the complainant arranged to meet again on 10 December 2006. The appellant drove to the complainant's home at around midnight. The complainant joined the appellant and they drove to [ ]. The appellant penetrated the complainant's vagina with his finger (count 3). The appellant also penetrated the complainant's vagina with his penis (count 6). The appellant masturbated himself (count 2) and then the complainant performed oral sex upon him (count 5) until the appellant ejaculated in her mouth.

7 Mobile phone text messages continued between the complainant and the appellant, becoming over time sexually explicit. The complainant's brother found messages on her phone and told her mother, who took the complainant to the police on 11 December 2006. The complainant refused to make a statement against the appellant.

8 In early February 2007 the appellant picked up the complainant from her home and drove to [ ]. The appellant digitally penetrated the complainant's vagina (count 3). The complainant performed oral sex on the appellant (count 5) and they then had penile/vaginal intercourse (count 6). The complainant again performed oral sex on the appellant (count 5).

9 On a night in late February 2007, the complainant performed oral sex on the appellant (count 5). The appellant digitally penetrated the complainant's vagina (count 3) and licked the complainant's vagina (count 4). There was also penile/vaginal intercourse (count 6). The complainant again performed oral sex on the appellant (count 5).

10 In March 2007, the appellant and the complainant again met late at night. The complainant performed oral sex on the appellant (count 5). Penile/vaginal intercourse followed (count 6). The complainant then performed oral sex on the appellant until the appellant ejaculated (count 5).

11 The appellant and the complainant then both went to [ ] where they had penile/vaginal intercourse (count 6). The complainant again performed oral sex on the appellant until he ejaculated (count 5).

12 The last episode occurred in April 2007. The appellant and the complainant went for a walk during which the complainant masturbated the appellant (count 2). They went for a drive together and the complainant performed oral sex on the appellant (count 5).

13 On arriving at [ ] the appellant penetrated the complainant's vagina with his finger (count 3) and licked her vagina (count 4). The appellant then penetrated the complainant's vagina with his penis (count 6) and the complainant performed oral sex on the appellant until he ejaculated (count 5).

[1] R v Jones [2004] VSCA 68.

[2] R v PDA (Reasons for Sentence) (Unreported, County Court of Victoria, Judge Pullen, 29 September 2008) [54]-[55] (emphasis added).

[3] [2005] VSCA 179.

[4] Transcript of plea hearing 22 September 2008, p15, lines 11-19 (emphasis added).

[5] Transcript of plea hearing 22 September 2008, p 23, lines 11-23.

[6] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306.

[7] [2009] VSCA 115, [51] ('DDJ').

[8] Sentencing Advisory Council, Sentencing Trends in the Higher Courts of Victoria 2003-04 to 2007-08: Sexual Penetration of a child aged between 10 and 16, Sentencing Snapshot No 88, June 2009.