R v A M P [2010] VSCA 48

1 The applicant pleaded guilty to 20 sexual offences against children, and to one charge of possessing child pornography. The sexual offences against children occurred over a period of about 50 years. There were 13 victims of the offences including his daughters, grandchildren, nephews and nieces, the child of family friends and Sudanese children whom he met through his involvement with the Church of Nazarene.

2 The nature of the offences, the maximum penalties which applied at the time when they were committed and the sentences imposed by the learned sentencing judge are set out in the table below. The sentence imposed on count 19 was the base sentence.

3 This amounted to a total effective sentence of 14 years' imprisonment. Her Honour ordered that the applicant serve a non-parole period of 9 years' imprisonment before being eligible for release on parole. The applicant was sentenced as a serious sexual offender on all counts except for count 1, under Part 2A of the Sentencing Act 1991.

4 Under s 6AAA of the Sentencing Act 1991 her Honour declared that, if the applicant had not pleaded guilty, she would have imposed a total effective sentence of 18 years' imprisonment with a non parole period of 13 years.

Circumstances of the offending and the offender

5 The circumstances of the offending are set out in her Honour's reasons as follows:

Count 1 is the first offence in time, a representative charge of indecently assaulting [WD] in 1958 when you were about 21, and the victim was 11 or 12. You had become friends with [WD's] family and when alone with [WD] you fondled his penis. This occurred many times over about 18 months.

The victims of Count 2 and 3 were two brothers, [TD] and {TB], who were your wife's nephews. These two assaults consisted of masturbating the boys, then aged about 10 or 11 and they occurred between 1971 and 1975.

[UL] and [UA] were your niece and nephew and were the victims of Counts 4, 5 6 and 11, which were all representative counts of offences which occurred between 1975 and 1979. Counts 4 and 6 relate to repeated occasions when you assaulted [UL] as she lay in bed by rubbing her vagina. Count 5 relates to several occasions when you woke [UA], then aged about eight, and sucked on his penis. Count 11 occurred when he was aged 12. You went to his bedroom and put your hand under the blanket and masturbated him.

Counts 7, 8, 9, 10 and 13 relate to your daughter [SLK]. These are all counts of indecent assault. Count 7 and 9 are both representative counts dealing with occasions when you got [SLK] to touch your penis when she was aged between four and six years. Counts 8 and 13 are also representative counts when you would touch her vagina with your fingers. This occurred between the ages of four and eight. You would do this in various locations, such as in bed or when she sat on your knee playing on the computer. Count 10 relates to a specific occasion when you came into her room at night and pushed your finger in and out of her vagina in such a way as to hurt her.

Count 12 is a charge of indecent assault upon your daughter [AS]. From when she was four years old until she was about seven, you would go into her bedroom at night and rub your fingers around her vagina. That is a representative count.

Count 14 is a count of indecent assault against [WT], who is the son of [WD], the victim of Count 1. In 1983, when [WT] was 12 or 13, you took him camping with your daughters and on two occasions you put your hand in his pants. On one occasion you fondled his groin area and on another occasion you fondled his penis.

The next offence occurred about 23 years later in 2006. By this time your daughter ... was the mother of three children, including [DAM] and [DIZ]. In 2006, you took [DAM] with some Sudanese children to an airport to look at the planes there. You then took the children to the beach and on returning home you put [DAM], aged six, in the bath where you washed him and squeezed his penis. This is Count 15.

Around this time, you and your wife were attending the Church of Nazarene in Wantirna and although you were not a formal member of the church, you assisted by reading lessons from time to time and by driving Sudanese families to and from church. After becoming friendly with their parents, you took their children on excursions, sometimes with your grandchildren as well. In the July school holidays of 2006, you took some of these children to a church picnic and afterwards to your house. One child, [GL], aged five, spilt milk on his clothes so you asked him to take off his clothes and have a bath and after he got out of the bath you touched his penis and shook it. This is Count 16.

In March 2007, you took two other Sudanese boys, aged 7 and 10, to a park during the school holidays and afterwards to your house where you gave them a bath and washed them. Whilst doing so, you fondled the penis and testicles of each boy. These offences are counts 17 and 18.

Counts 19 and 20 occurred when you were minding your three year old grandson, [DIZ], on 30 March 2007. Count 20 relates to the act of masturbation you committed upon [DIZ] and Count 19 is the count of incest which you committed when you placed [DIZ's] penis into your mouth. Several days earlier you had been minding [DIZ] and when his father ... arrived to collect him he was suspicious of your behaviour. He bought a video surveillance system which he set up in the house and your assaults upon [DIZ] were captured on film.

On 4 April 2007, police went to your home and seized your computer. On it were located three images of naked young males and six video movies displaying young naked males performing sexual activities. This is Count 21 on the presentment. When interviewed about this by the police you did not admit that this material was yours but you took responsibility for it because it was on your computer.[1]

6 The applicant was an illegitimate child who never met his father. He came to Australia as a refugee from Germany with his mother and stepfather in 1950 when he was about 13 years old, having endured the privations of the Second World War. He was aged 71 at the time he was sentenced and while in custody before the trial was diagnosed with bladder and prostate cancer. As a result his bladder was removed and he now passes urine through a bag in his abdominal wall. His cancer is said to be in remission, but he is confined to a wheel chair.

7 Ms Pamela Matthews, a forensic psychologist, provided a pre-sentencing report which noted that there were three discrete periods of offending, occurring between 1957 and 1958, between 1975 and 1985, and between 2006 and 2007. She said that:

The age range of the children involved would indicate a diagnosis of Paedophilia in that the children male and female have been pre-pubertal, and the behaviour has involved acting on intense sexual urges.

In regard to psychopathy and personality disorder [the applicant] would not meet the key diagnostic criteria for either psychopathy or antisocial personality disorder. There was however a histrionic self enhancing, self serving flavour to his presentation which in conjunction with limitations in empathy towards the victims and specific remorse would suggest narcissistic features.

He is currently presenting with reactive depression to his circumstances both legal and medical.

In regard to [the applicant's] propensity to commit the relevant offences in the future. Structured risk appraisal would suggest that [the applicant] is a high risk for re-offending. It is the writer's recommendation that a medical opinion is sought as to what impact his current medical state would have on his physical capacity to re-offend. The writer notes that sexuality and sexual behaviour is not limited to the region of the groin, however the emotional and fatigue effects of chronic serious or mortal illness can have a significant effect on sexual interest and desire, potentially reducing risk to insignificant.

In regard to the pattern, progression and nature of [the applicant's] sexual offending, this is described earlier in the report. Whilst psychosocial stress appears to play at least some part in the onset of [the applicant's] offence behaviours, the most common characteristic to all three periods of [the applicant's] offending appears to be ready access to children.

In regard to [the applicant's] efforts to address the cause of his offending, including active participation in rehabilitation, this appears to have been minimal and whatever rehabilitation may have occurred appears to have not been effective. The level of minimisation and denial of risk within [the applicant's] family context is of great concern to the writer and must be taken into account in any plan to return [the applicant] to the family home. That [the applicant] has accepted responsibility for his behaviour, is able to express guilt and general remorse and can acknowledge that he should not have future access to or contact with children, indicates some insight and is a good basis from which to built upon in treatment.

In regard to developmental factors, it is the writer's view it is difficult to know what to what extent the relationships and events of [the applicant's] childhood may have played in the development of his pathology. From [the applicant's] account his circumcision at the age of 5-6 years was experienced as a painful, humiliating traumatic experience with sexual overtones. That this experience may have had a developmental impact similar to child sexual abuse cannot be excluded. It is further the writer's view, the absence of male attachment figures in his early life, a failed relationship with his stepfather in adolescence and adulthood, in conjunction with being the only child in a female dominated household in his early years, is likely to have played a part in his attachment formation and personality development. Exposure to severe trauma such as the events he described in world war two, are also known to produce deficits in empathy through psychological numbing.

In regard to risk reduction, obviously involvement in an intensive treatment program and the containment of access to children will assist in reducing further risk. The most significant exacerbating risk factors are likely to be increases in psychosocial stress, a factor which can be unpredictable; in conjunction with access to children.

It is further the writer's recommendation that when [the applicant] is eventually released from custody that he remains under supervision for a lengthy period of time.

8 In addition to the matters mentioned above, her Honour referred to the applicant's age and ill-health and noted that, because of the nature of the cancer from which he suffered, his time in custody would be more difficult for him. She took account of the fact that he had been hospitalised after being assaulted in prison about a year before he was sentenced and that he was being held in protective custody.

9 The learned judge also took account of the fact that the applicant had not sought bail, intending this to assist his family and that his admission of his offending meant that the victims were relieved of the trauma of having to give evidence in court.

10 Her Honour referred to a reference from a friend of the applicant, who had known him for many years. He said that he had observed the applicant's difficulties in taking responsibility for his own actions. He had volunteered to assist the applicant if and when he was released. Another friend, who had known the applicant for a shorter time, also provided a reference and said that he was prepared to visit the applicant in prison.

11 The judge also referred to a letter written by the applicant to the victims expressing deep regret and sorrow for his actions. Her Honour noted that in 2003 the applicant attempted suicide following prosecution for indecent assault on a male person, but he had continued to act on his paedophiliac urges.

12 Her Honour referred to the effect of the offending upon the victims, five of whom provided victim impact statements. One of the applicant's daughters described the effect on her of knowing that her sister's young sons had been victims of the sexual abuse. Another of the applicant's daughters suffers from a number of health problems as a direct result of his offences and has required hospitalisation as well as long term counselling and medication. Another victim, a nephew, who was aged about 10 when he was first assaulted, and is now in his mid 40s, said that he had become aggressive to those around him and resorted to the abuse of alcohol and medication. Although he now copes better as a result of extensive counselling he was still affected by the abuse. Another nephew said that his sexual abuse had damaged his relationships in his teenage years and later in life.

13 Her Honour noted that the applicant had three court appearances. In 1960 he was placed on a two year good behaviour bond without a conviction being recorded for one charge of indecent assault of a male and one charge of indecent assault of a female under 16 years of age. In 1985 he was convicted in the Magistrates' Court of three charges of indecent assault and sentenced to 4 months' imprisonment to be served at an attendance centre. In 2004 he was convicted in the County Court of a count of indecent assault on a male person and sentenced to 3 months' imprisonment which was wholly suspended for one year. Her Honour took account of the convictions in 1985 and 2004 and of the 1960 matters as an indication of his predisposition to abusing children.

14 Having referred to the appalling and protracted nature of the offending, and to relevant mitigating factors, her Honour sentenced the applicant in the manner set out above.

15 The sole ground of appeal was that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive.

16 In support of this ground counsel for the applicant submitted that:

• the individual sentences imposed on counts 1 to 14 (particularly count 1) and on counts 19 and 20 were manifestly excessive;
• the orders for cumulation were excessive and did not adequately differentiate between representative counts and counts that were not representative of other offending;
• the total effective sentence imposed by her Honour was such as to indicate that she had failed to give adequate weight to the applicant's advanced age or ill health; and
• her Honour had not given appropriate weight to submissions as to sentencing range.

17 We now discuss each of these complaints in turn.

Were the sentences imposed on individual counts manifestly excessive?

18 Counsel for the applicant submitted that his client's culpability on count 1 was not as great as his culpability in relation to the later offences and that the sentence of 2 years' imprisonment imposed on that count was manifestly excessive. It was submitted that count 1 was a first offence committed 50 years previously when the applicant was about 21 years old. It was not a penetrative offence, and was not at the upper range for the offence of indecent assault, since it involved only the fondling of the victim's penis. Having regard to these matters counsel submitted that her Honour should not have imposed the same sentence of two years' imprisonment on count 1, as for counts 2 and 3 (also counts of indecent assault of a male) and for the similar offences covered by counts 4 to 14.

19 Counsel further submitted that although indecent assault of a male under 16 carried a maximum penalty of 10 years when count 1 was committed, s 114(2) of the Sentencing Act 1991 required the judge to sentence the applicant on that count on the basis that the later reduction of the maximum penalty for equivalent offences to 5 years' imprisonment should apply.

20 In addition to the submission relating to the maximum penalty for the offence, counsel said that R v MJR[2] was authority for the proposition that the judge was required to take account of the sentencing range for that offence at the time when it was committed, rather than at the time of sentencing. It was submitted that the sentence of 2 years' imprisonment did not reflect sentencing practice at the time of the offence, when a much shorter term of imprisonment would have been imposed for that offence. In the written submissions made on behalf of the applicant it was also contended that the expression 'current sentencing practices' in s 5(2)(b) of the Sentencing Act 1991 referred to sentencing standards at the time of the offence, rather than at the time of the sentencing.

21 The submission on the appropriate range was made in relation to the sentences imposed on counts 2 to 14, as well as on count 1. We note that no submissions on this matter were made to the learned sentencing judge, who simply took account of the maximum sentence applicable to the various offences at the time of the offending.

22 Counsel for the applicant also contended that the sentences of 6 years' imprisonment imposed on count 19 (incest) and of 4 years' imprisonment imposed on count 20 (indecent assault of a child under 16) were manifestly excessive, having regard to the nature of the offending and to the fact that these offences occurred as part of the same incident.

23 Although the maximum penalty for the offending behaviour covered by count 1 was reduced to 5 years' imprisonment in 1967, it was increased to 10 years' imprisonment in 1991. As the maximum term applied both at the time of the offence and at the time of sentencing it was submitted for the Crown that s 114(2) of the Sentencing Act 1991 did not apply to count 1.

24 Counsel did not refer to the specific offences in the repealed legislation upon which he placed reliance as equivalent offences. It is therefore presumed that the applicant's counsel was referring to the insertion of s 68(3A) into the Crimes Act 1958,[3] which stipulated that the maximum term of imprisonment for indecently assaulting a male was 5 years. Prior to this, that offence carried a maximum term of imprisonment of 10 years.[4] Sections 68(3) and (3A) were both repealed in 1981 pursuant to s 6 of the Crimes (Sexual Offences) Act 1980, which also introduced a similar offence of indecent assault (see s 44(1)). That offence carried a maximum term of imprisonment of 5 years. The then newly introduced offences which related to sexual offences were not relevant to count 1 as they all required sexual penetration or an attempt to do so. In 1991, the offence of committing an indecent act with a child under 16 was introduced, carrying with it the current maximum sentence of 10 years' imprisonment.[5]

25 Counsel for the Crown submitted that the sentence imposed on count 1 was appropriate, regardless of whether the offender had been sentenced shortly after the offence occurred or at the time when he was actually sentenced. The count was a representative one, the victim of that count was aged between 11 and 12 years, the offending involved a serious breach of trust by the applicant and the applicant had been diagnosed as a paedophile with a high risk of re-offending.

26 Counsel for the Crown further submitted that the sentences imposed on counts 19 and 20 were not manifestly excessive. Count 19 occurred when the applicant was baby-sitting his three year old grandchild and involved a gross breach of trust. In 1960, 1985 and 2004 the applicant was found to have committed sexual offences. His 2004 conviction was only three years before the offending against his grandson and demonstrated the applicant's lack of remorse and poor prospects of rehabilitation. In such circumstances her Honour was required to place considerable weight on both specific and general deterrence and on the protection of the community.

27 Section 114 of the Sentencing Act 1991 provides that:

(1) If an Act (including this Act) or subordinate instrument increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.

(2) If an Act (including this Act) or subordinate instrument reduces the penalty or the maximum or minimum penalty for an offence, the reduction extends to offences committed before the commencement of the provision effecting the reduction for which no penalty had been imposed at that commencement.

28 We do not consider that s 114(2) applies to the sentence for count 1. The purpose of the section is to give an offender the benefit of any reduction in the maximum penalty for an offence, despite the common law presumption that legislation does not operate retrospectively. Section 27(2) of the Charter of Human Rights and Responsibilities Act 2006 ('Charter') expresses a similar policy. It provides that:

A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.

29 In our opinion neither provision required the sentencing judge to sentence the applicant on the basis that the five year maximum penalty which existed between 1967 and 1991 was relevant. The maximum penalty at the time of the offence was the same as that applicable to the equivalent offence at the time of sentencing. It was therefore appropriate for her Honour to impose a sentence reflecting the ten year maximum.

30 The applicant's written submission on the relevant sentencing range also raises a different, but related question. In this Court, different views have been expressed as to whether the words 'current sentencing practices' in s 5(2)(b) of the Sentencing Act 1991 refer to the sentencing standards applicable at the date of sentence (a view tentatively expressed by Eames JA in Director of Public Prosecutions v BGJ)[6] or to the sentencing standards which applied when the offence was committed, as Nettle JA suggested in R v RL.[7]

31 It is arguable that s 27(2) of the Charter requires the words 'current sentencing practices' to be read as referring to both the maximum penalty and the sentencing range which applied when the offence was committed.

32 Section 114 is reflective of the common law position. Its purpose is to ensure that the punishment for an offence does not exceed that which was applicable at the time the offence was committed. To construe the term 'current sentencing practices' in section 5(2)(b) as referring to the sentencing practices which prevailed at the time of the commission of the offence is consistent with the purpose of s 114 and the Charter. It is however unnecessary to reach a concluded view on that question. If the term referred to practices as at the time of sentence, we would give 'current sentencing practices' no weight where a different sentencing practice prevailed at the time of the commission of the offence. Hence the maximum sentence and the range at the time the applicant committed each offence become the pertinent considerations.

33 There are difficulties in ascertaining the precise range in relation to some of the earliest offences but the court must do the best it can in the circumstances. As Smart A-J said in R v PLV:[8]

There are practical difficulties in trying to recapture the situation which existed 25 years ago. Reference to the odd decided case may not be helpful in trying to obtain an overall picture. Whilst it is not perhaps the best source, there are judges who have reasonably good recollection of the practice in the courts and the sentences imposed in the period 1965-1980. There are judges who do not have such knowledge. If there is no substantial evidence as to that practice and the sentences and the judge is not aware of them then they obviously cannot be taken into account.[9]

34 It was conceded by counsel for the applicant that the Court was unlikely to obtain much assistance in ascertaining sentencing practices which applied 50 years ago. The best that a sentencing judge could do in these circumstances would be to have regard to the fact that the range of sentences imposed for this offence were generally lower than the present range of sentences for the same or similar offences. We have assessed the appropriateness of the relevant sentences in that way.[10]

35 The victim impact statements show that the victims of the offences have been seriously harmed by the abuse they suffered as children. These effects must be taken into account under sub-ss 5(2)(daa) and (da) of the Sentencing Act 1991.

36 In Director of Public Prosecutions v Toomey[11] Vincent JA said that the sexual abuse of children was extremely serious:

not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally. I need only refer to the changes which have been made to the law and the structures that have been put in place to reduce the risks to children to make this point. The exposure over recent years of the extent of the incidence of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them.

The second comment that I wish to make addresses a different aspect. On occasions, when imposing sentence I have made mention of the notion of social rehabilitation. In DPP v. DJK[12], for example, I remarked:

'This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.'

It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.

Although much has been done in recent years to encourage young persons who have been subjected to inappropriate behaviours to report what has happened, by reason of the presence of a variety of factors it must be anticipated that often the commission of such offences will not be revealed for years and that their eventual disclosure will be both extremely difficult and painful for those offended against, their families and others associated with them.

If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences.[13]

37 In this case the fact that the offender was not sentenced until 2008, for offending extending back to 1957, must necessarily have delayed the 'social rehabilitation' of the victims, many of whom are now adults in middle-age. In her victim impact statement, one of the applicant's daughters, SLK, spoke of her ongoing fear of the applicant and his implied threats against her 'if I was to dob him in to authorities'. SLK also spoke of her sorrow and regret at not telling the authorities because of her fear it would break up her family and her terrible shock at discovering that the applicant had subsequently abused her nephew. Having regard to these and other statements made by victims, the sentencing judge had to give considerable weight to the long term psychological effects of the offending on victims who, as young children, would have had great difficulty in telling others about what the applicant was doing to them.

38 The applicant was only about 20[14] when he committed the offence covered by count 1. However, unlike the offender in R v PJB,[15] the applicant has not lead an upright life in the 50 years which have passed since count 1 occurred, but has continued to offend against young children whenever he has had an opportunity to do so. In such circumstances the sentencing judge was bound to give considerable weight to general and specific deterrence and to the applicant's exceedingly poor prospects of rehabilitation. Having regard to the fact that count 1 was representative of offending occurring over a two year period, to the age of the victim at that time (11 to 12 years), and to the breach of trust involved in the offence, we do not consider that the sentence imposed on count 1 was manifestly excessive.

39 Nor were the sentences imposed on counts 2 to 14 manifestly excessive, having regard to the matters set out above. The victims of these offences were the applicant's daughters, three of his nephews and a niece, and the son of a previous victim, whose ages ranged from 4 to 13 years. The applicant had relevant prior convictions and his offending against those children spanned about 12 years.[16] The persistence of the offending would have added to the fear of these children that they would be abused again. Most of the offences involved gross breaches of trust and the statements of the victims indicate that they have been profoundly affected by their abuse.

40 We would also reject the applicant's submission that the sentences imposed on counts 19 (incest) and 20 (indecent assault), the victim of which was the offender's 3 year old grandson, were manifestly excessive. These offences involved gross exploitation and subordination of a very small child, who is likely to have been confused and upset by the abuse, and to have faced considerable difficulty in complaining about the abuse by his grandfather.

Were the orders for cumulation inappropriate?

41 Counsel for the applicant also submitted that orders for cumulation made by her Honour were manifestly excessive. It was submitted that count 4 was essentially a particular of count 6, that both counts involved offending against BML and that cumulation was not required to reflect the totality of the offending. The same was said to apply to counts 7, 8, 9 and 13 involving the victim, SLK.

42 It was also submitted that her Honour had erred in imposing similar or more substantial orders for cumulation in relation to counts 15, 16, 17 and 18, which were individual acts, as the orders for cumulation made in relation to the representative counts. Her Honour was also said to have erred by ordering a cumulation of 6 months in respect of count 20 which occurred in the same incident as count 19.

43 Counsel for the Crown submitted that count 4 was a representative count covering offences in 1975 and 1976 and count 6 was representative of offending in the years 1977, 1978 and 1979. The sentences were structured in a way which reflected the applicant's total criminality in respect of offences against his niece, the repetitive nature of his offending and the fact that it occurred over a period of years. The same could be said of the orders for cumulation in relation to counts 7, 8, 9 and 13.

44 Although count 10 was a representative count it was a serious offence, involving digital penetration causing pain to the child. From count 15 onwards, the applicant's conduct occurred in the context of two relevant prior convictions for which he had been sentenced to imprisonment. As to counts 19 and 20, the applicant had masturbated his three year old grandson and then performed an act of incest upon him. Each act constituted a separate offence and the combined sentence of six and a half years was not outside the range.

45 We accept the submission of counsel for the Crown relating to the orders for cumulation made in respect of counts 4, 6, 7, 8, 9, 10 and 13.

46 Although we accept that the orders might have been differently structured, we do not consider that the orders for cumulation made in respect of the non-representative counts (counts 15 to 18) were inappropriate, having regard to the very young age of the children, the principles of general and specific deterrence and the applicant's poor prospects of rehabilitation. If we had been re-sentencing the applicant, we might have ordered less cumulation of the sentences on counts 15 to 18, but made higher orders for cumulation on some of the representative counts.

47 It will often be appropriate to cumulate a greater proportion of the sentence imposed on a representative count than the proportion cumulated for a count which is not representative. However in this case her Honour did not err by failing to draw fine distinctions between the orders for cumulation to be made in circumstances where the offending was against multiple victims over a 50 year period. As Callaway JA commented in R v Belhaj 'overworked trial judges cannot be expected to fine-tune every sentence. Care is one thing but pedantry is another'.[17]

48 Her Honour was required to sentence the applicant as a serious sexual offender on counts 2 to 21 inclusive. The presumption of cumulation applied in sentencing the offender on these counts under s 6E of the Sentencing Act 1991. As Mc Hugh, Gummow and Hayne JJ said in their joint reasons in R H McL v The Queen:[18]

The need for judges not to compress sentences is especially important where the accused person is a 'serious sexual offender' within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[19]

49 As we have said, the sentence might have been structured differently with a greater degree of cumulation being ordered on the representative counts and a lower degree of cumulation on some of the individual counts. In particular, the 6 months for cumulation on counts 7, 8, 9, 12 and 13 are quite lenient. Her Honour gave appropriate weight to the principle of totality and the orders for cumulation did not result in a manifestly excessive total effective sentence.

Did her Honour give insufficient weight to the applicant's ill-health and age?

50 Counsel for the applicant submitted that the total effective sentence of 14 years' imprisonment indicated that her Honour must have given insufficient weight to the ill health of the applicant and the hardship that he would experience in prison.

51 Counsel for the Crown submitted that these matters were referred to in her Honour's sentencing reasons and the total effective sentence was not such as to suggest that she had given insufficient weight to them. The applicant was clear of cancer at the time of sentence and his diabetes was under control. No evidence was called as to his life expectancy.

52 In her sentencing reasons her Honour acknowledged that:

The state of your health and age are matters I take into account as mitigating factors in determining the length of the sentence I impose. Although you are being given appropriate treatment in the prison hospital, in view of the serious and life threatening nature of the cancer from which you suffer, I accept that your time in custody will be more difficult for you. Indeed you were assaulted in prison about a year ago and spent some time in hospital then and you remain fearful. You are held in protective custody where you will remain. Initially, you spent a month in the Custody Centre in the difficult circumstances imposed by that facility and that was your first experience of prison. These are all matters I take into account as mitigating circumstances.[20]

53 As this court said in the recent decision of RLP,[21] the conjunction of the appellant's advanced years and ill health are to be approached with these propositions in mind:

1. The age and health of an offender are relevant to the exercise of the sentencing discretion.
2. Old age or ill health are not determinative of the quantum of sentence.
3. Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4. It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5. Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender's ill health will make his or her period of incarceration particularly onerous.
6. Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7. Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[22]

54 It was necessary for her Honour to give weight to the fact that the applicant's ill-health[23] would make prison more burdensome to him than to a healthy person without his disabilities. Her Honour was also required to have regard to the fact that the offender was aged 71 at the time of the sentencing and might not survive a lengthy prison sentence.[24] However, as has been said on many occasions, age alone 'cannot be permitted to justify the imposition of an unacceptably inappropriate sentence'.[25]

55 Her Honour was required to impose a substantial total effective sentence to take account of the gravity of the offending, its effects on the victims and the weight to be given to general and specific deterrence. In our opinion the total effective term of 14 years' imprisonment does not indicate that her Honour gave insufficient weight to the applicant's age and ill-health.

56 We are fortified in our approach by recent decisions of this Court. In RLP the offender was sentenced on 30 counts of sexual offences spanning a 37 year period against eight victims, all of whom were family members. He was 77 years of age at the time of sentence and was in poor health. Following a Director's appeal and after allowance for double jeopardy, he was re-sentenced to 15 years and 7 months' imprisonment with a minimum term of 10 years and 6 months. The court said in RLP:

It is of little assistance to speak of a 'worst case'. That said, it was not in issue that this case involved such serious and sustained offending over such a protracted period as to warrant its placement in the range reserved for the worst category of this type of offence. The appellant over most of his life has breached the trust placed in him by generations of his family. The appellant's sustained and repetitious offending is an aggravating feature of the case. The repetition of the sexual abuse was likely to heighten each victim's fear that the abuse would occur again, and to increase the damage which she suffered. Equally, the repetition was likely to make the appellant progressively more aware of the effect the abuse was having on the victims. The victims were young and vulnerable. Often there was a degree of persuasion and in some instances coercion of the victims. They have suffered profound trauma with long term, if not permanent, harm. The continuity of the appellant's offending and the nature of his offences is objectively appalling and has brought untold misery to the entire family. Had the applicant not pleaded guilty, and allowing for the other mitigating circumstances we have mentioned, we declare, as required by s 6AAA that we would have sentenced the applicant to a total effective sentence of 18 years with a minimum of 12 years before he was eligible for parole.

The duty of the courts must be to emphasise to the community that such crimes will not be tolerated. As Winneke P stated in R v WEF:

'It must be understood by the community and, in particular, those who stand in a position of trust and responsibility towards young children that if they wish to enjoy the benefits which derive from a relationship with young children, they will pay a heavy price if they abuse such trust and responsibility by resorting to their own sexual gratification at the expense of those whom they have in their charge.'[26]

57 In R v AP[27] the offender was aged 77 at the time of sentence and was convicted of 13 sexual offence counts, including indecent assault, carnal knowledge and incest. The victim of those offences was AP's daughter and the offending occurred over approximately 20 years. Like the applicant in this case, AP was in poor health, although the judgment does not indicate the nature of his health condition. AP was older than this applicant when sentenced and his offending, though appalling, affected only one victim. By contrast, the applicant in this case has abused 13 different children, many of whom were members of his family.

58 In their joint judgment Maxwell P and Buchanan JA said that having regard to the very serious and protracted nature of the offending 'it would have been very difficult for the appellant to show that the sentence of 14 years imposed below was outside the range reasonably open to the judge'.[28] Having found that a sentencing error had occurred the Court re-sentenced the offender to a term of 12 years' imprisonment.

Did her Honour take proper account of submission as to range?

59 The plea hearing occurred before the decision of this Court in R v MacNeil- Brown,[29] in which it was held that the prosecutor has a duty to assist the sentencing judge by making submissions as to the range of sentences that could be said to be appropriately open for the offending.

60 Counsel for the Crown did not make any submissions as to sentencing range but said the following at the plea hearing:

It is submitted that the most serious offence, the last, apart from the child pornography, the incest on [DIZ], has the very aggravating feature of the child being extremely young and, therefore, extremely vulnerable and it is submitted that that offence in itself - well, the only appropriate sentence in relation to that offence in itself would be somewhere in the vicinity of 4 or 5 years and then by the time you get accumulating over the years, and there would have to be a degree of accumulation, it is submitted, because there are different victims over different periods of time, it is submitted that a head sentence that involves double figures is appropriate in this case, Your Honour.

61 The written submissions made on behalf of the applicant contended that the judge had erred by failing to explain why, in light of the prosecutor's submission, she had imposed a sentence of six years' imprisonment on count 19. At the hearing of the appeal, counsel conceded that this submission was misconceived and that her Honour was not required to give reasons for imposing a sentence beyond the range of sentences suggested by the Crown.

62 That concession was clearly appropriate. In R v MacNeil-Brown Redlich JA said that:

No judge is bound to accept counsel's submission on any point, and a sentencing judge is entirely free to come to a different conclusion. Indeed, the judge is bound to do so if, in his/her judgment, a sentence outside the nominated range is called for and can lawfully be imposed. The weight to be given to a submission is to be judged according to the merits of the argument(s) which it advances. It would be wrong for a judge to accord weight to a Crown submission on sentence merely because it came from the Crown.[30]

63 For the above reasons we consider that the ground of manifest excess is not made out and that the application for leave to appeal against sentence should be refused.

[1] (Unreported, County Court of Victoria, Judge Wilmoth, 24 July 2008) ('Reasons'), [11]-[21].

[2] [2002] NSWCCA 129; (2002) 54 NSWLR 368.

[3] The section was inserted pursuant to s 3(b) of the Crimes (Amendment) Act 1967.

[4] See s 68(3) of the Crimes Act 1957 and Crimes Act 1958.

[5] Crimes (Sexual Offences) Act 1991, s 3.

[6] DPP (Vic) v BGJ [2007] VSCA 64; (2000) 171 A Crim R 74, 85. See also R v Meldrum (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Gillard and Anderson JJ, 2 September 1977); R v Stephenson (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillps JA, Southwell AJA, Hampel J, 5 September 1995); R v Flavall [2006] VSCA 32, [11].

[7] [2009] VSCA 95. See also R v MJR (2002) 54 NSWR 368; R v Kench [2005] SASC 85; (2005) 152 A Crim R 294; Green v R [2006] NTCCA 22; (2006) 19 NTLR 1.

[8] (2001) 51 NSWLR 736, 746.

[10] See R v RLP [2009] VSCA 271 ('RLP').

[11] [2006] VSCA 90.

[12] [2003] VSCA 109, [18].

[13] [2006] VSCA 90, [20]-[24]. See also the comments of Buchanan JA at [10].

[14] Count 1 was a representative count for offences committed between 1 January 1957 and 31 December 1958, when the applicant was aged 19 and 21, respectively.

[15] [2007] VSCA 242, [21] (Nettle JA).

[16] Counts 2 and 14 were between dates counts, said to have occurred between 1 January 1971 and 31 December 1972 and between 1 January 1983 and 31 January 1983, respectively.

[17] [2006] VSCA 153, [7].

[18] [2000] HCA 46; (2000) 203 CLR 452.

[21] [2009] VSCA 271.

[22] Ibid [39] (Neave, Redlich JJA and Hollingworth AJA) (citations omitted).

[23] R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258.

[24] R v Bazley (1993) 65 A Crim R 154, 158.

[25] R v Gregory [2000] VSCA 212, [21] (Winneke P); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 (Winneke P).

[26] Ibid [51]-[52] (citations omitted).

[27] [2009] VSCA 249.

[29] [2008] VSCA 190.