R v Bellerby [2009] VSCA 59

Court of Appeal (Vic)|2009-04-28|Before: KELLAM and DODDS-STREETON JJA and VICKERY AJA

Criminal Law - Sentencing - Indecent act with child under 16 - Incest - Procuring child for child pornography - Sexual penetration of child under 16 - Possession of child pornography - Sentence manifestly excessive - Insufficient weight given to plea of guilty - Sentence manifestly disparate with co-offenders - Appeal dismissed.

1 On 16 November 2006 the appellant, who is now aged 49 years, pleaded guilty before a judge of the County Court to one count of buggery (count 1), seven counts of incest (counts 2, 3, 6 to 9 and 12), one count of committing an indecent act with a child under 16 years of age (count 4), one count of procuring a child for child pornography (count 5), four counts of sexual penetration of a child under 16 years (counts 10, 11, 13 and 14) and one count of possession of child pornography (count 15). Counts 2, 3, 4, 6, 7, 9, 10, 11, 13 and 14 were representative counts.

2 On 13 December 2006 the judge sentenced the appellant as follows:

Count 10 - sexual penetration of a child under 16 years

Count 11 - sexual penetration of a child under 16 years

Count 13 - sexual penetration of a child under 16 years

Count 14 - sexual penetration of a child under 16 years

His Honour directed that one year of each of the terms of imprisonment imposed on counts 2, 3, 4, 5, 6, 10, 11, 13 and 14 be served cumulatively upon each other and upon the sentence of six years' imprisonment imposed on count 9. Thus, the total effective sentence imposed was 15 years' imprisonment. The sentencing judge fixed a period of 11 years' imprisonment before the appellant was eligible for release on parole. The appellant was sentenced as a serious sexual offender on counts 3 to 15 inclusive pursuant to Part 2A of the Sentencing Act 1991.

3 Count 1 was a specific count of buggery committed by the appellant against an intellectually disabled male child ['B'] aged under the age of 14 years at a time when the appellant was approximately 15 years of age. Counts 2 to 14 related to offences committed against the appellant's daughter to whom I shall refer as 'BB', between 1 January 2004 and 31 December 2005.

4 The appellant was born on 25 May 1959. For many years he lived with his wife and three children in Nyah West. However, in the course of his employment as a truck driver he also met and established a sexual relationship with a woman who lived in Swan Hill, to whom I shall refer as 'AB'. She was born on 26 July 1971 and was aged approximately 22 years when the appellant, who was then aged approximately 35 years, commenced the relationship with her. As a result of this relationship AB gave birth to a daughter, BB, in October 1994. The appellant had two nephews living in the Swan Hill area. They were Michael Hitchins who was born on 4 August 1965 and Gregory Glare who was born on 7 June 1963.

5 The abuse of BB commenced when she was aged nine years and living with her mother, AB, in Swan Hill. At first, both the appellant and the mother of BB sexually penetrated BB. However within six months of the commencement of the abuse Glare was introduced into the 'circle' of abuse. Hitchins was introduced approximately six months later. The sentencing judge described the usual pattern of conduct in the following terms:

The usual pattern of conduct was for you [the appellant] to send an SMS to [AB] or telephone her to inform her that you were on your way to her house after finishing work. After Glare and Hitchins were introduced to the regime you, [the appellant], organised their attendance at [AB's] house. Your practice, ... on arriving at the house was to have a bath and while you were in the bath [AB] woke [BB] and sent her into the bathroom. She then removed her clothes and got into the bath where you required her to stroke your penis and then engage in oral sex. You then took [BB] into the main bedroom. [AB] joined you and [BB] and, after Glare and Hitchins later became involved, one or other of them also at times participated in the abuse. At no time were Glare and Hitchins together when [BB] was sexually abused. All participants were naked and performed a variety of different sexual acts on each other. [BB] was included in those acts. Those sexual acts involved all who were present including you [AB] performing oral sex on [BB]. You [the appellant] ... inserting your penis into [AB's] vagina. [BB] inserting a finger or fingers into [AB's] vagina and [BB] performing oral sex on you, ... and on occasion on Glare or Hitchins. [BB] was present while all adults performed heterosexual and homosexual acts on each other on the same bed. Many of these acts were photographed.

6 As can be observed from the above summary, the abuse of BB was pre-meditated and planned by the appellant. Furthermore it was he who instigated the abuse and he who invited and organised the attendance of his two adult nephews who subsequently, but separately, joined with him in the abuse of his daughter.

7 AB ended her relationship with the appellant in early February 2006. AB attended at the Swan Hill police station on 11 February 2006 in order to report the sexual abuse committed on BB by the appellant and Glare and Hitchins. In consequence of this report a search warrant was obtained and police found children's underwear and a large number of Polaroid photographs in a locked chest in the appellant's home. Amongst those photographs were images of BB performing sexual acts on all of the adults referred to above, and images of sexual acts which had been performed upon her. A search of the house of AB revealed computer discs which showed BB being sexually penetrated by all of the adults. We have not found it necessary to view the photographs nor did either counsel before us submit that we should do so. However, the index to the exhibits reveals in detail the depths of depravity and the extent of the humiliation of BB. Save to say that the exhibit referred to photographs of BB with the penis of Hitchins in her mouth and with the penis of the appellant in her other hand, photographs of semen on her vagina and photographs of the appellant with his penis in BB's vagina, no further description is necessary to establish that the crimes committed by the appellant were of the utmost depravity.

8 The appellant was interviewed by police on 13 February 2006, during which the appellant admitted in general the sexual abuse committed upon his daughter.

9 The sentencing judge described the offences to which the appellant pleaded guilty as follows:

Count 1 is a specific count of buggery which you committed on [B] between 1 January 1975 and 31 December 1976. [B] is now 37 years of age and he was under ten years when the offence occurred. He is ... apparently intellectually disabled and in receipt of a disability pension. Some six years ago he informed his mother of this incident. The police were not notified at this time. This count appears in the presentment because of admissions which you, [the appellant], made in your record of interview. You were either about 13 or 14 years of age when you committed this crime approximately 30 years ago when the victim was aged about six or seven. ...

Count 2 is a representative count of incest where the allegation is that you performed oral sex on [BB] by introducing your tongue into the child's vagina. In a record of interview you admitted that the child was about nine years old when you began to perform oral sex on her and you admitted licking her vagina on some ten separate occasions.

Count 3 is likewise a representative count of incest where it was alleged that you put your penis into the complainant's mouth. In your record of interview you admitted that this act of sexual penetration occurred in the bathroom and may have happened, on your account, six to eight times. You admitted that the complainant was about nine years old when the first such act occurred.

Count 4 is also a representative count alleging the commission of an indecent act on the complainant. You committed a variety of indecent acts which included the complainant holding your penis, licking your penis and you rubbing your penis up and down the complainant's vagina.

Count 5 is a count of procuring a minor for the making or producing of child pornography. This count relates to you procuring the complainant in order to take photographs of her in pornographic circumstances or situations. The complainant alleged that you made [AB] on occasions take photographs of her while you and Hitchins molested her.

Count 6 is a further representative count of incest which alleges that you were present and aided and abetted or encouraged the complainant to insert a finger into her mother's vagina. In your record of interview you admitted that on and off the complainant, at your instigation, inserted her finger into [AB's] vagina.

Count 7 is another representative count of incest which alleges that you were present and aided and abetted and encouraged [AB] to put her tongue into the complainant's vagina. The complainant in her police statement recalled that you made her mother lick the complainant's vagina more than once but not a lot of times.

Count 8 is a count of incest alleged as a specific incident where you put your penis into the complainant's mouth. The Crown allege that Glare was present on this occasion.

Count 9 is another count of incest which involves you putting your penis into the complainant's vagina. It is a representative count and in your record of interview you thought that you may have inserted your penis into the child's vagina six to eight times. Penetration, you said, was 'just a little bit'.

Count 10 involves the sexual penetration of a child under 16 years of age. It is a representative count where you were present and aided and abetted and encouraged Glare to put his tongue into the complainant's vagina. The complainant was under ten at the time of this offence. She celebrated her tenth birthday on 27 October 2004.

Count 11 is a count which also involves the sexual penetration of a child under 16. It is a representative count alleging that you aided and abetted or encouraged Glare to put his penis into the complainant's mouth. At the time this offence was committed the complainant was under ten years of age.

Count 12 alleges a specific act of incest when you put your tongue into the complainant's vagina. On this occasion Hitchins was present.

Count 13 is a count of sexual penetration of a child under 16. It is a representative count where you were present and aided and abetted and encouraged Hitchins to put his tongue into the complainant's vagina.

Count 14 is a further count of sexual penetration of a child under 16. It is a representative count where you were present and aided and abetted and encouraged Hitchins to put his penis into the complainant's mouth.

Finally, count 15 is a count alleging possession of child pornography and this count relates to the children's pornographic material which police found on the occasion when a search warrant was executed at your house. As the Crown summary states this count includes, but is not limited to, photographs taken of children other than the complainant. These children are [K] 12 years of age, [S] ten years old and [T] nine years old.

10 The maximum penalty for buggery contrary to s 68 of the Crimes Act 1958 was 20 years' imprisonment at the time of offending. The maximum penalty for incest contrary to s 44(1) of the Crimes Act 1958 is 25 years' imprisonment. The maximum penalty for an indecent act with a child under 16 contrary to s 47(1) of the Crimes Act 1958 is ten years' imprisonment. The maximum penalty for procuring a child for child pornography contrary to s 69 of the Crimes Act 1958 is ten years' imprisonment. The maximum penalty for sexual penetration of a child under 16 contrary to s 45 of the Crimes Act is:

Where the child is under ten years of age, 25 years' imprisonment (counts 10 and 11 fit into this category);
Where the child is between ten and 16 years of age and is under the care, supervision or authority of the offender, 15 years' imprisonment; and
In all other cases ten years' imprisonment.

The maximum penalty for possession of child pornography contrary to s 70 of the Crimes Act is five years' imprisonment.

11 There were three co-offenders who were also sentenced by his Honour. The first of those was AB who pleaded guilty to four counts of incest, one count of procuring a child for child pornography, four counts of sexual penetration of a child under 16, one count of possession of child pornography. On 13 December 2006 she was sentenced as follows:

The total effective sentence imposed on AB was nine years' imprisonment. A non-parole period of five years was fixed.

12 Gregory Glare pleaded guilty to two counts of indecent assault, six counts of sexual penetration of a child under 16 and three counts of incest. He was sentenced on 26 June 2007 as follows: 12 months' imprisonment on each count of indecent assault, three years' imprisonment on each count of sexual penetration of a child under 16 and four years' imprisonment on each count of incest. The total effective sentence was eight years and ten months' imprisonment. A non-parole period of five years and six months was fixed.

13 Michael Hitchins pleaded guilty to eight counts of sexual penetration of a child under 16, one count of indecent act with a child under 16 and five counts of incest. He was sentenced as follows: three years' imprisonment on each count of sexual penetration of a child under 16, 18 months' imprisonment on the count of indecent act on a child under 16 and four years' imprisonment on each count of incest. The total effective sentence imposed was 11 years and three months. A non-parole period of seven years and nine months was fixed.

14 The appellant appeals the sentence on the following grounds:

The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
The sentences fail to reflect sufficient weight being attached to the appellant's plea of guilty.
The sentences are manifestly disparate with the sentences passed upon the co-offenders.

15 It is convenient to consider ground 3 first. The principal submission advanced on behalf of the appellant is that disparity between the non-parole period imposed on AB and the non-parole period imposed on the appellant goes well beyond that which can be justified. No argument was advanced before us that the sentence imposed on the appellant was unreasonably disparate from that imposed upon Glare and Hitchins. It is conceded by counsel for the appellant that there were matters which distinguished AB from the appellant, they being that AB had brought the matters to the attention of police, that the offending occurred at the instigation of the appellant, that the appellant was diagnosed as a paedophile, that AB was unlikely to re-offend and that whilst both had suffered abuse as children, it appeared that AB had been damaged more significantly. However, notwithstanding those matters it is argued on behalf of the appellant that in particular the cumulation ordered by the sentencing judge was unfair and resulted in unreasonably disparate sentences. In this regard it is submitted that the cumulation of one year in respect of nine counts imposed against the appellant as against six months in respect of eight counts imposed against AB was unfairly disparate having regard to the relative culpability in respect of the particular offence.

16 In response, the respondent submits that there is no basis for any justifiable sense of grievance on behalf of the appellant as there are substantial and compelling reasons for the difference in the sentence imposed on the appellant as to that imposed on AB. First, the fact that the appellant pleaded guilty to 15 counts which included four more counts of incest than AB, and one count of buggery with a second victim specific to the appellant is contrasted with the fact that AB pleaded guilty to ten counts. Secondly, it is submitted that the role of the appellant was significantly greater. The Crown case against the appellant was that he was the instigator and the main offender. BB stated that the appellant made AB lick her vagina. Only two counts were preferred against AB in circumstances where she was the actual principal perpetrator. However in relation to each of those matters the appellant was the instigator. All other counts against AB were put on the basis of her being present as an aider and abettor. BB stated that the appellant would make AB take photographs of her whilst she was being molested by the appellant and by Hitchins. His Honour accepted that the appellant dictated 'what sexual acts were to occur and that [AB] followed those instructions'. Furthermore the evidence was that no offending occurred when the appellant was not present and when AB was in the house alone with her daughter. In terms of the nature and gravity of AB's offending that is a significant matter. The Crown case was that the appellant was the instigator, vis-à-vis the other co-offenders, his two nephews Glare and Hitchins. In his record of interview the appellant made admissions that it was approximately a year and a half before he 'invited' Glare to join in the abuse. On this basis it is submitted by the respondent that the culpability of the appellant was extremely high and considerably higher than that of AB. Furthermore it is submitted that the fact that AB brought about the investigation by going voluntarily to the police to report the abuse, and the fact that she made admissions as to her own involvement, was a matter of significance. His Honour accepted those actions entitled AB to an 'additional discount'. Counsel for the appellant conceded before us that that was palpably so. His Honour accepted that AB was unlikely to re-offend and stated that he did 'not have the same degree of optimism' in regard to the appellant.

17 His Honour considered that just punishment, general deterrence and denunciation were 'particularly important' principles in relation to the appellant. His Honour observed correctly that 'to introduce your nephews into the web of sexual abuse was yet another appalling act on your part'. On the other hand his Honour regarded general deterrence 'as of somewhat less importance' as far as AB was concerned.

18 The offending of the appellant was grave and deviant. Whilst it is true that the offending of AB was also grave and deviant it was generally at the instigation and instruction of the appellant. It is clear that the offending took place at a time and place decided by the appellant. Furthermore in terms of moral culpability, by all accounts AB was quite pathetic. She had been the subject of sexual abuse as a child. She was of low intelligence. Dr Walton, a psychiatrist, observed that she 'would attract the diagnostic labels of a chronic depressive disorder, which hardly captures the severity of victimisation, sexually and physically she has experienced over many years'. In my view the submission made by the respondent that there was such a material difference in role and personal circumstances between the appellant and AB that it was appropriate that the sentence reflect such distinction is correct. Taking into account those circumstances I do not conclude that the appellant is entitled to a justifiable sense of grievance in consequence of the difference in the total effective sentences imposed upon him and upon AB nor in relation to the differing non-parole periods.

19 Under ground 2 it is contended that the sentences imposed upon the appellant failed to reflect sufficient weight being attached to the appellant's plea of guilty. No written submission was advanced in support of this ground nor was any substantial oral argument advanced. In my view the contention is untenable. His Honour referred specifically to the pleas of guilty entered by the appellant and by AB in the following terms:

Your pleas of guilty in each instance have assisted to facilitate the administration of justice and have also saved court time and the expense of a trial. Far more importantly however your pleas of guilty have spared the complainant any further trauma by having to give evidence before a jury in open court. Those pleas of guilty entitle each of you to a discount on the sentences to be imposed and the sentence in each instance reflects that discount.

A consideration of the individual sentences imposed by his Honour does not suggest in any way that inadequate weight was attached to the appellant's plea of guilty.

20 On count 1 the appellant was sentenced to 12 month's imprisonment. That count carried a maximum penalty of 20 years' imprisonment.

21 The appellant was sentenced to four years' imprisonment on count 2, five years' imprisonment on count 3, three years' imprisonment on count 6, three years' imprisonment on count 7, four years' imprisonment on count 8, six years' imprisonment on count 9 and four years' imprisonment on count 12. Each of those counts were counts of incest that carried a maximum penalty of 25 years' imprisonment. Count 9, to which the appellant was sentenced to six years' imprisonment, was a count which involved the introduction of the appellant's penis into BB's vagina, she then being aged nine or ten years. It was a representative count, the appellant having admitted to the offence having occurred on six to eight occasions. This act was photographed either by the appellant or by BB's mother on at least one occasion. It is clear to me that in relation to both this particular count of incest and all other counts of incest his Honour did attach considerable weight to the appellant's plea of guilty. In argument before us, counsel for the appellant conceded that no complaint could be made about any individual sentence. Rather he argued that the total effective sentence was such that the trial judge could not have attached sufficient weight to the plea of guilty in consideration of the total effective sentence to be imposed. To this extent he conceded that effectively ground 2 is a particular of ground 1 to which I now turn.

22 Ground 1 of the full statement of grounds of appeal is that the individual sentences, total effective sentence and the non-parole period imposed are manifestly excessive, although in argument counsel for the appellant conceded that no complaint could be made that the individual sentences were manifestly excessive. It is submitted, however, that the total effective sentence is outside the range of appropriate sentences for conduct involving offences over time, against a single victim. In this regard reliance is placed upon a number of previously decided cases.

23 The first such case upon which counsel for the appellant relies is R v MWH[1]. In that case a total effective sentence of 12 years' imprisonment with a non-parole period of nine years was held to be not manifestly excessive. The circumstances of that case were that the appellant who was aged 57 at the time of his appeal pleaded guilty to four counts of indecent assault on a girl aged under 16, eight counts of rape and six counts of assault occasioning actual bodily harm. The sexual offences were committed against three children, there being seven victims in total and involving violence. The offences took place over a period of nearly ten years. It is submitted by counsel for the appellant that there were features of 'gross aggravation' in MWH which were not present in the case under consideration. In particular, those features included the number of victims, evidence of violence and a period of offending far in excess of the present case. However as Callaway JA observed in MWH in relation to the circumstances both of the offences and of the offender:

The problem in this case is that there are powerful aggravating features attaching to the former and powerful mitigating features pertaining to the latter. As so often happens in sentencing, they are incommensurable.[2]

24 Thus whilst it is true, as submitted, that there were aggravating features in the case of MWH which were not present in the case under consideration there were also powerful mitigating features in MWH which are not present in the case now under consideration. Foremost amongst those factors is the fact that in MWH the offences had been committed between 1962 and 1972 at a time when the appellant had been a violent alcoholic. Callaway JA observed that since that time the appellant had 'completely reformed', stopped drinking and that there was 'no likelihood of re-offending'. Indeed Callaway JA said in respect of the offences: 'The appellant was a different person from the young man who had committed them.'[3] Furthermore, of course, the maximum penalties which were applicable at the time that the offences were committed by MWH were quite different from those applicable in the present case. The four counts of indecent assault to which MWH pleaded guilty carried a maximum penalty of three years' imprisonment and the eight counts of rape carried a maximum penalty of 20 years' imprisonment. By comparison the eight counts of incest to which the appellant in the present case pleaded guilty each carry a maximum sentence of 25 years' imprisonment and the maximum penalty for sexual penetration of a child under ten years is likewise 25 years. In my view the case of MWH is clearly distinguishable from the present case.

25 The next case upon which counsel for the appellant relies is DPP v DJS[4] in which case the DPP successfully appealed a sentence of 12 years' imprisonment and a non-parole period of nine years which had been imposed. That case involved offences of sexual penetration of a child under ten years, indecent acts, incest and the production of child pornography. The offences were committed against six victims aged between four and ten years of age. The total effective sentence was increased upon appeal to 16 years' imprisonment with a non-parole period of 13½ years. It is submitted by counsel for the appellant that the circumstances in DJS were such that the sentencing judge's description of the case as being 'the worst category of its type' was justified and distinguished DJS from the present case. True it is that the length of time, the fact of multiple victims and the their young ages were all aggravating factors in the case of DJS. On the other hand, the case of DJS was a Crown appeal and the principle of 'double jeopardy' was invoked by the Court of Appeal in re-sentencing. Furthermore there were aggravating factors in the current case, to which I will refer in more detail, which were not present in DJS.

26 A further case relied upon by counsel for the appellant is DPP v VH[5]. Once again this was an appeal by the DPP against a sentence of seven years' imprisonment with a non-parole period of five years which had been imposed. Upon appeal a total effective sentence of nine years' imprisonment with a non-parole period of seven years was substituted after making allowance for the principle of double jeopardy. That was a case in which the appellant had pleaded guilty to six counts of incest, two of which were representative counts and one count of being in possession of child pornography. The appellant had been sentenced at first instance to sentences of five years' imprisonment on the two representative counts of incest and three years on two counts of incest and four years on two further counts of incest. At the relevant time the maximum penalty for incest was 25 years' imprisonment. The offences of incest related to the appellant's 13 year old daughter. Count 1 related to a representative count of penile penetration of the appellant's daughter's vagina over a period of nearly eight months. The appellant was re-sentenced to seven years' imprisonment on this count. Count 2 related to a representative count of anal penetration on several occasions over the same period. The appellant was re-sentenced to six years' imprisonment on that count. Counts 3 and 4 were discrete counts of oral penile penetration for which the appellant was re-sentenced to four years' imprisonment on each count. Counts 5 and 6 were discrete counts of penile vaginal penetration for which the appellant was re-sentenced to six years' imprisonment. In the course of his judgment, with which Buchanan and Eames JJA agreed, Callaway JA said:

The respondent is entitled to a discount because, through no fault of his own, he is standing for sentence twice. Whether or not that is a desirable rule of law, it is a rule that is binding upon us, which only Parliament could change. I have not discounted the individual sentences for double jeopardy, but the total effective sentence must be so discounted. For that reason I propose that only 12 months of the sentence imposed on count 2 and six months of each of the sentences imposed on counts 3 and 7 be served cumulatively upon each other and upon the sentence imposed on count 1 and that otherwise all the sentences be served concurrently.[6]

27 However, as stated below there are a number of aggravating factors which relate to the sentence with which I am now concerned and which did not apply in VH. There were far fewer counts in VH, and the offending, vile as it was, took place over a lesser period of time and did not involve the aggravating factor of the introduction by the offender of other persons to engage in the abuse of the child in question. In my view the decision of the Court of Appeal in VH does not require a lower sentence to be imposed in the case under consideration.

28 Furthermore, in his oral submissions counsel relies upon DPP v BAB[7]. This was a Crown appeal against a total effective sentence of eight years with a non-parole period of four-and-a-half years which had been imposed upon the respondent. The respondent had pleaded guilty in the County Court to a presentment containing five counts of rape, one count of malicious wounding and nine counts of incest. The counts involved two female victims who were twins. The offences were committed at various times between 1 September 1977 and 31 December 1981 when the victims were aged between 11 and 15 years. At the time those offences were committed, the offences of rape and incest carried a maximum penalty of 20 years' imprisonment. Accordingly the maximum penalty which applied at that time to the offence of incest was lower than it is in the circumstances of this case. In the case of DPP v BAB the respondent pleaded guilty to nine counts of incest. At first instance sentences of five years' imprisonment were imposed on each count, save for one in respect of which a sentence of four years' imprisonment was imposed. There can be no doubt that BAB was a bad case. However, not only was the maximum sentence in relation to incest lower at the time, the Court was also constrained by the principle of double jeopardy. In particular O'Bryan AJA and Callaway JA both referred specifically to the issue of double jeopardy, O'Bryan AJA saying:

Had it not been for the principles of double jeopardy and totality to which I have already adverted, I should have proposed a greater measure of cumulation at this stage.[8]

29 In the course of argument on the appeal the Court referred counsel for the appellant to the judgment of the Court in DPP v OJA; DPP v WBA and DPP v EPD[9]. His Honour's sentence of 13 December 2006 had of course preceded the judgment in that case. Counsel for the appellant sought leave to make further submission in writing after he had the opportunity to consider the above case in detail. He was granted such leave and submissions in writing dated 17 March 2009 were provided to the Court. In response the respondent filed submissions in writing dated 19 March 2009. A reply to those submissions was provided by counsel for the appellant on 20 March 2009.

30 In DPP v OJA, WBA and EPD (to which I shall refer individually as 'OJA' or 'WBA' or 'EPD') the three offenders committed offences against five separate children over a period of nearly eight years. WBA and EPD were a married couple. Both of them had children from previous relationships and one child of their marriage. One child of a previous relationship was born to EPD in consequence of a sexual liaison with OJA. WBA and EPD committed a series of sexual offences against their children. In addition, OJA babysat the children on a regular basis and exploited the opportunity to commit the offences to which he pleaded guilty.

31 OJA pleaded guilty to 14 counts against a female child he had fathered to EPD. They were all representative counts, nine of which were incest, and five of which were counts of committing an indecent act with or in the presence of a child under the age of 16 years. The offences commenced when the child was aged four years and continued until she was aged approximately ten years. The incest counts included penetration of the child's vagina by penis, finger, tongue and penetration of her anus by penis and vibrator. Counts 15 to 23 related to a female child, the daughter of EPD and WBA and occurred on occasions when WBA and EPD were away from the home. Those counts included four counts of sexual penetration of a child under ten years and five counts of committing an indecent act with or in the presence of a child under ten years of age. Counts 24 to 35 involved sexual offences against WBA's son, spanning a period of approximately three-and-a-half years when the child was aged between eight and 11 years. They included six counts of sexual penetration and the other five counts involved indecent acts with the child. Counts 36 to 37 were counts of committing an indecent act in the presence of or with a female child aged under 16 years who was the daughter of EPD and WBA. Counts 38 to 41 included four counts of sexual penetration of EPD's son who was aged between 12 and 14 years at the relevant time. In addition he was convicted of counts of producing and possessing pornography arising from photographs and videos found in the possession of OJA of police searching his house after his arrest.

32 OJA was sentenced on each of the six counts of incest to six years' imprisonment; on each of the counts of indecent acts with a child under 16 years of age to four years' imprisonment; on each of the counts of taking part in an act of sexual penetration with a child under 16 years of age, to five years' imprisonment; on a count of producing child pornography, to two years' imprisonment; and on the count of possessing child pornography, to one year's imprisonment. The judge ordered that one year of each of the sentences imposed on counts 7, 13, 15, 23, 26, 28, 29 and 41 and six months of each of the sentences imposed on counts 36 and 42 be served cumulatively on the sentence imposed on count 1, making a total effective sentence of 15 years' imprisonment and further ordered that OJA serve not less than 11 years' imprisonment before being eligible for parole. Upon appeal by the DPP, the Court held that the sentences imposed at first instance were within the bounds of the sound exercise of sentencing discretion. It is now contended by the appellant that there are more features of aggravation shown in the case of OJA than in the case of the appellant. In particular it is argued that OJA's offending occurred over a longer period of time, the offending involved a wider range of sexual offences, the offending consisted of more offences against the victims, the offending involved victims who were younger in age and there were multiple victims. In addition, it is submitted that OJA had a relevant criminal history. By contrast the appellant has no prior convictions.

33 However in the present appeal, as is submitted by the respondent, there are a number of points of distinction. The first, and in my view the most egregious, of those matters is the fact that the appellant introduced two other adult male persons into the offending. The child, the victim of the appellant, was treated by him as a play thing which could be shared with his two nephews. The humiliation and degradation of the child in question in this manner is deplorable and to my mind is a most substantial and relevant aggravation in terms of the culpability of the appellant. Furthermore the appellant committed many of his offences in the company of either the mother of his female victim or in the company of Hitchins and/or Glare. This is a further aggravatory factor adding to the humiliation and degradation of the child. In contrast, as unspeakably awful as the behaviour of OJA was, it did not involve others in the offending. In addition the Court of Appeal in OJA observed

... that the judge paid close regard to a range of significant mitigatory factors which included that OJA had made admissions to a treating psychiatrist (suggesting that he was motivated towards rehabilitation for his longstanding pædophilia and giving at least some reason to conclude that he could be successful); that he had consented to his medical file being made available to the police; that he had made "full and frank admissions" to the police during the course of interview; that he entered a plea of guilty at the earliest possible stage (thus saving the time, cost and ordeal of a trial and suggesting remorse); that he recognised that he needed treatment for desires which had plagued him since he was aged 14; that he had himself been a victim of sexual abuse at the hands of his elder brother from the age of six and a half until he was seven; that he had a history of psychotic episodes; and that he would serve his sentence in protective custody, ...[10]

34 Furthermore the Court noted that OJA's disclosures had brought to light offences which otherwise might not have been discovered. The Court stated that he was entitled to a significant added element of leniency for the fact that the offences which he disclosed were otherwise unknown to authorities. Finally the Court observed that the sentencing judge accepted that OJA was genuinely remorseful. Neither of these factors was present in the case of the appellant.

35 However in addition it is argued that the decision of the Court of Appeal in WBA also supports the contention that the total effective sentence imposed on the appellant is manifestly excessive. WBA's offending involved 20 counts of incest, which in turn included eight occasions in which WBA sodomised his stepson who was then aged between 13 and 14 years of age and numerous counts of oral sexual intercourse with the boy during the same period. In addition, WBA encouraged penile vaginal intercourse between his stepson and his natural mother, EBD, on two occasions. Furthermore, he pleaded guilty to 15 counts of sexual offences with or involving his stepdaughter who was aged between nine and ten years including counts of penile, vaginal and anal penetration whilst she was being filmed. As Nettle JA observed WBA's offending was 'very serious indeed'.[11]

36 The sentencing judge imposed sentences on WBA of six years' imprisonment on each of the 20 counts of incest and four years' imprisonment on each of the counts of indecent act with or in the presence of a child under 16 years. On a count of attempted incest a sentence of four years' imprisonment was imposed and sentences of two years' and one year's imprisonment on counts of producing and possessing child pornography respectively were imposed. After cumulation, a sentence of 11 years' imprisonment with a non-parole period of seven years was imposed. The Court of Appeal concluded that the sentence imposed was so manifestly inadequate as to warrant appellate intervention. A sentence of 13 years' imprisonment with a non-parole period of nine years was substituted for the original sentence. In the course of his judgment (which Ashley and Redlich JJA agreed) Nettle JA stated that by reason of the principle of double jeopardy it was necessary to moderate the increase in sentence 'to a substantial degree'.[12]

37 Counsel for the appellant argues that but for the principle of double jeopardy it is likely that WBA would have received a sentence 'of about the same order as that passed upon the present appellant and OJA'. He submits that the offending in WBA's case as described above is worse than in the present case by reason of there being three complainants and by reason of the nature of the offending. He concedes that there are other similarities as to the length of time of offending and lack of prior criminality and the feature of the introduction of others into the sexual offending, but it is argued that a lesser sentence should be imposed to bring the sentencing of the appellant 'into line' with the sentences imposed upon OJA and WBA.

38 As stated above, the appellant's counsel does not contend that any individual sentence imposed upon the appellant was inadequate, nor could he do so sensibly. In particular, in relation to the counts of incest, the sentences imposed ranged from less than one quarter to one eighth of the maximum penalty which Parliament increased from 20 to 25 years as long ago as September 1997. Indeed, it might well be argued that current sentencing practices have not reflected Parliament's intention adequately, particularly when the offences have taken place, as in this case, with very young children. The complaint made by the appellant in this case, however, is that the level of cumulation which was applied by the sentencing judge resulted in a sentence which is manifestly excessive. I do not agree. In my view the total effective sentence imposed in this case is not so far beyond the appropriate range of sentences open to the sentencing judge as to warrant interference by this Court. Indeed it might be noted that the total effective sentence imposed after cumulation remained at a level of only somewhat more than 50 per cent of the maximum sentence for one count of incest.

39 The offences committed by the appellant against his young daughter were grave and repulsive. The child was degraded and abused by the appellant and by others invited by him to join in the humiliation of the child for no better reason than the personal sexual gratification of the appellant. The introduction of others into the abuse of the child by the appellant, and the photographing of his sexual penetration of her, and the planning and pre-meditation of the abuse were aggravating factors of a high order. A reading of the transcript of the interview of the appellant makes it clear that at that time the appellant had no remorse nor any insight whatsoever into the gravity of his offending. As the sentencing judge observed, the regime of sexual abuse to which the appellant's daughter was subjected was as 'demanding as it was unrelenting'. In my view his Honour did not overstate the position to say that the 'regular planned and calculated abuse of this child plumbed the depths of depravity'. The materials before us reveal that the abuse was carried out in a callous and calculating manner.

40 There was little evidence of remorse before his Honour, aside from an apparent assertion of such to a psychologist retained by the appellant's solicitor for the purposes of his plea, and from a plea of guilty, which plea, at least on many counts, was almost inevitable after the photographs of abuse of the child were recovered. The appellant was diagnosed by the psychologist retained by his solicitor as a paedophile and he was considered by the psychologist to be at the 'moderate end of the risk continuum' (as compared with other child sex offenders) in the medium to longer term. His Honour was entitled to consider that the prospects of rehabilitation were limited. He was entitled to regard the protection of the community and the sentencing principles of just punishment, general deterrence and denunciation as being important principles to be reflected in the sentence imposed

by him. He was entitled to consider that the psychological evidence before him that the victim is suffering both low self-esteem and depressive symptoms, was highly likely to be related to the abuse from which she suffered. In all of the circumstances of this case I am far from convinced that the sentence imposed by his Honour can be said to be manifestly excessive. In my view it is certainly not a sentence which in any way justifies the appellate intervention of this Court.

41 This Court has repeatedly emphasised that the crime of incest committed against young persons is viewed most seriously. The reason for this approach was explained clearly by Hedigan AJA in R v Ware[13] as follows:

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.

43 I have had the advantage of reading in draft the reasons for judgment of Kellam JA. I agree with the disposition proposed by his Honour for the reasons he gives.

44 I agree that the appeal should be dismissed for the reasons stated by Kellam JA.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Parties