R v Better [2003] VSCA 71

9. The appellant was sentenced to a term of two years' imprisonment on each of the counts of indecent assault and gross indecency, and to a term of four years' imprisonment on each of the counts of carnal knowledge, except for count 4, on which a sentence of two years' imprisonment was imposed. The sentencing judge directed that the sentences imposed on counts 1, 2, 4, 5, 6, 7, 8, 9, 10 and 11 be served concurrently with the sentence imposed on count 3 and that three years of the sentence imposed on count 12 be served concurrently with the sentence imposed on count 3, producing a total effective sentence of five years' imprisonment. The sentencing judge fixed a term of 18 months before the appellant was to be eligible for parole. The appellant was declared and sentenced as a serious sexual offender in respect of counts 3 to 12.

12. The appellant has appealed against the sentence on a number of grounds. It is not necessary to consider more than one of them, for there was clearly an error that vitiated the exercise of the sentencing discretion.

15. The sentencing judge was informed by the prosecutor that the maximum sentence for the crime of gross indecency was three years' imprisonment. The information was incorrect. The maximum sentence was two years' imprisonment. The sentencing judge imposed a sentence of two years' imprisonment on each of the three counts of gross indecency. Those sentences were clearly wrong. From the imposition of the maximum sentence it is evident that no mitigating factor had any effect. There were several mitigating factors which were significant: the appellant's age at the time the offences were committed, his lack of prior convictions, the delay and the appellant's rehabilitation since the offending, his admissions, remorse and early pleas of guilty.

18. When the error was pointed out to the sentencing judge, he responded that the error was immaterial as each of the sentences was to be served concurrently with the sentences imposed in respect of other counts. In my opinion, his Honour erred. He was required to impose appropriate sentences in respect of each offence, not merely to arrive at a total effective sentence which was appropriate. I consider that the error was material and the sentencing discretion has been reopened. Counsel for the Crown agreed that the error meant that the appellant was to be re-sentenced.

21. The appellant is now 42 years old. The offences were committed when he was between the ages of 14 and about 17 or 18 years. The victims of the offences were the appellant's twin sisters, who were aged between six and nine years when the offences occurred. The twins were the youngest in a family of eight children. The appellant was the elder of their two brothers.

24. Counts 1, 2, 3, 8, 9, 11 and 12 were relied upon by the prosecution as representative of a large number of offences. Over the period covered by the presentment the appellant repeatedly and consistently sexually abused his sisters. According to the opening of the case by the prosecutor, the offences commenced when the appellant lured the twins into his bedroom by asking them if they wanted to watch television or by telling them he had something to show them. Once in his bedroom the appellant would masturbate himself and insert his fingers into the vaginas of both the twins. One of the twins described an incident when the appellant placed her hand on his erect penis in order for her to masturbate him. The complainants described occasions when the appellant inserted his penis into the mouth or vagina of each of his sisters. Those events usually occurred in the appellant's bedroom. On other occasions, in the bathroom or loungeroom, the appellant would expose his sisters and masturbate himself. Both sisters described the abuse as a regular part of their lives over the period covered by the presentment.

27. The appellant left school at the end of Form 4 and began an apprenticeship as a chef. The appellant left his apprenticeship after two years and worked in a service station and then worked for his brother for seven years constructing swimming pools. The appellant also worked as a mechanic. In 1998, the appellant commenced working for a plumbing supply business and was promoted to the rank of supervisor. In the early 1990s, the appellant commenced a de facto relationship. The appellant has had no children.

30. 10 A report by a forensic psychologist was tendered in the course of the plea. The psychologist came to the conclusion that the appellant was not a paedophile. The psychologist considered that the onset of the offences related to an inappropriate response to sexual awakening on the part of the appellant, with exploration and experimentation because the girls were there, and the offences continued because the appellant derived sexual gratification from them. He said:

"It is important to indicate that this does not seem to be the situation now and has not been basically since the cessation of these offences."

The psychologist did not think that the appellant needed any attention for any sexual deviation.

35. The offences constituted a gross invasion of the minds and bodies of children, and were bound to have a significant, blighting effect upon their later lives. The appellant persisted in his sexual exploitation of his sisters for years. As the psychologist said, while early offences may be characterised as youthful exploration and experimentation, the continuation of the offences represents nothing but sexual gratification at the expense of victims who were on hand and whom the appellant could exploit by reason of his age and position in the family.

38. On the other hand, the appellant was very young at the time the offences were committed, and a very long period of time has elapsed since the offences were committed without the commission of any further offences of a like nature. It is now some 25 years since the last offence was committed. The fact that the appellant was immature when the offending commenced and was still youthful when it ended is of some significance. Had the appellant been sentenced shortly after the commission of the offences he would have been sentenced as a young offender. He is now before the Court to be sentenced as an adult for the acts of his youth, and, in the meantime, he has effected a substantial rehabilitation.[1]

41. The serious sexual offender provisions are applicable to many of the counts to which the appellant pleaded guilty. The lapse of time since the commission of the offences and the rehabilitation effected by the appellant, in my opinion, militate against the imposition of a sentence longer than that which is proportionate to the gravity of the offences in order to protect the community from the appellant.

44. Mr Croucher, counsel for the appellant, urged that the appellant should be released from prison immediately, by suspending all of any new sentence of imprisonment save for the time which the appellant has spent in custody, a period in excess of seven months. In the light of the time that has elapsed since the commission of the offences and the altered course of the appellant's life, I agree with the submission.

47. I would re-sentence the appellant to be imprisoned for a term of two-and-a-half years on each of counts 3, 4, 5 and 12 and to a term of 18 months on each of counts 1, 2, 6, 7, 8, 9, 10 and 11. I would order that two years of the sentence imposed on count 12 be served concurrently with the sentence imposed on count 3, and that all the remaining sentences be served concurrently with the sentence imposed in respect of count 3, producing a total effective sentence of three years' imprisonment. I would order that the entire sentence, save for 223 days, be suspended for a period of two years.

The sentence imposed on 25 October 2002 is set aside.

In lieu thereof the appellant is sentenced on each of counts 3, 4, 5 and 12 to be imprisoned for a term of two-and-a-half years and on each of counts 1, 2, 6, 7, 8, 9, 10 and 11 to be imprisoned for 18 months.

The Court orders that two years of the sentence imposed on count 12 be served concurrently with the sentence imposed on count 3 and that all the remaining sentences be served concurrently with the sentence imposed in respect of count 3, producing a total effective sentence of three years' imprisonment.

The Court orders that the entire sentence, save for 223 days, be suspended for a period of two years.

The Court confirms the declaration that the appellant was sentenced as a serious sexual offender.

The Court declares that the appellant has, at this day, served the period of 223 days under this sentence and directs that the fact of the making of this declaration and its details be entered in the records of the Court.

71. Mr Better, I am required by the Act to explain some things to you. You appreciate that the effect of the Court's order is that you will be released today?

76. The order of the Court, however, is that you have a sentence of three years and that is suspended for a period of two years. In the event of you offending in that time, you may be required to serve the remainder of the sentence, and only in exceptional circumstances would that order not be made.

[1] Cf. R. v. Nutter, unreported, Court of Appeal, 8 November 1995; R. v. Ward, unreported, Court of Appeal, 11 September 1996.