R v Bowdler [2005] VSCA 246

Court of Appeal (Vic)|2005-10-13|Before: CHARLES, BUCHANAN and VINCENT, JJ.A.

CRIMINAL LAW - Sentence - Sexual offences - Appellant sentenced on one count to a term of imprisonment in excess of maximum sentence - Sentencing discretion vitiated - Appellant re-sentenced to a term of seven-and-a-half years' imprisonment with a minimum term of five-and-a-half years.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 I will invite Buchanan, J.A. to give the first judgment.

2 The appellant was granted leave by a single judge of this Court to appeal against a total effective sentence of eight years' imprisonment with a minimum term of six years when he pleaded guilty to a presentment containing one count of gross indecency with a person under 16 years, one count of sexual penetration with a child under ten years, four counts of an indecent act with a child under 16 years, one count of incest, one count of common law assault and one count of attempted indecent act with a child under 16 years.

3 The appellant is now 38 years old. The victims of the offences were his daughter, who was between the ages of six and eight years when the offences were committed, a stepdaughter, who was 12 years old when the offences were committed, and the daughter of a woman with whom the appellant had formed a de facto relationship, who was 12 years old when the offences were committed. The offences spanned the period from 1989 to January 2001.

4 The first two counts concerned the appellant's daughter. Count 1, which was one of gross indecency, occurred when the appellant took his daughter from the bedroom, while her mother was in the bath, to the lounge room and laid her on a couch. She was wearing her nightdress and underpants. The appellant pulled down her underpants and positioned his head between her legs and licked her vagina, and did so for several minutes. Count 2, alleging an act of sexual penetration, occurred when the appellant's daughter came to say goodnight to him when he was in the bath. The appellant lifted her bodily into the bath and placed her so that her head was near his penis and introduced his penis into her mouth, using his hand beside her head to move it up and down on his erect penis, an activity which lasted for several minutes.

5 Counts 3, 4, 5, 6 and 7 concerned the appellant's stepdaughter. Count 3, which was said to be a representative count, was constituted by the appellant touching his stepdaughter on the breast while watching television with her after the rest of the family had gone to bed. Count 4, another representative count, was constituted by the appellant placing his hand under his stepdaughter's clothing, touching her on the vagina, over and underneath her underwear. Count 5 took place when the appellant requested his stepdaughter to sleep in his bed. She was reluctant to do so, but the appellant compelled her. When she was in bed the appellant took her hand and placed it on his erect penis. His stepdaughter pleaded with the appellant to stop and began to scream. Count 6 occurred shortly after count 5 when the appellant penetrated his stepdaughter's vagina with his finger, causing her to jump and move away. The appellant attempted to get on top of his stepdaughter but she screamed and leapt out of bed. Count 7 took place when the appellant pressed his stepdaughter to accompany him, but she refused. The appellant slapped her on the face.

6 The remaining count 8 concerned the daughter of the appellant's de facto wife and occurred when the appellant was visiting his brother accompanied by the victim. The accommodation consisted of two single beds in one room. When the appellant and the victim were in the room, the appellant asked the girl to either suck or rub his penis, an attempt to commit an indecent act with her.

7 On count 1 the appellant was sentenced to be imprisoned for a term of four years and six months. When the offence was committed the maximum sentence was two years' imprisonment. The sentence on that count formed the base sentence upon which other sentences were cumulated. The error vitiates the entire sentence. The appellant is to be re-sentenced by this Court.

8 The appellant was born in the United Kingdom. He came to Australia with his family when he was 13 years old. On leaving school the appellant was apprenticed as a fitter and turner. He then commenced an apprenticeship as a motor mechanic. His apprenticeship ended when he was seriously injured in a motor car accident in 1987 and he commenced driving trucks, which has been his principal occupation. The appellant has been married three times and has formed other relationships. The appellant has described himself as an alcoholic, often drinking all day. He also smoked cannabis regularly and as a result of his truck driving became addicted to amphetamine. A psychologist, whose report was tendered in the course of the plea, stated:

"In many ways the offences involve a context and that context is related to his limited sophistication, limited social skills, alcohol abuse, instability and obviously sexual gratification."

9 The appellant has some 31 prior convictions from 13 court appearances, principally for offences of dishonesty, driving offences and assault. He has no prior convictions for sexual offences.

10 The appellant is entitled to a discount for his plea of guilty. While he initially denied the offences and referred to his victims in slighting terms in his interview by the police, his plea did save them the trauma of a trial. The appellant could also rely upon the delay between the offending and being charged, his lack of prior convictions for sexual offences, his prospects of rehabilitation, which will be influenced by the success of his attempt to beat his addiction to alcohol, his good work history and the fact that he was a protected prisoner for some time. The appellant is now isolated. He has no visitors in prison and his parents are in poor health. According to a report by Dr Tuck dated 3 August 2005, the appellant suffers from a variety of ailments, including degenerative changes to his spine, pain as a result of the 1987 motor car accident and diabetes.

11 Nevertheless, the crimes were serious indeed. The victims were young and defenceless. They may well bear mental scars from the abuse for the rest of their lives. The appellant stood in a position of responsibility and care to each of them. He betrayed his responsibilities and used the power of his position to exploit the victims. A significant factor in sentencing offenders such as the appellant is that of general deterrence. The courts must protect those vulnerable to abuse.

12 The appellant was to be sentenced as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991, although I do not consider it is necessary to impose a disproportionate sentence in order to protect the community.

13 I would re-sentence the appellant to be imprisoned for a term of 18 months on count 1, for a term of four years on count 2, for a term of six months on count 3, for a term of two years on count 4, for a term of two years and six months on count 5, for a term of three years and six months on count 6, for a term of three months on count 7 and for a term of 12 months on count 8. I would direct that six months of the sentence on count 1, six months of the sentence imposed on count 4, one year of the sentence imposed on count 5 and one year and six months of the sentence imposed on count 6 be served cumulatively with each other and with the sentence imposed on count 2, creating a total effective sentence of seven-and-a-half years' imprisonment. I would direct that the appellant serve a minimum term of five-and-a-half years before he is to be eligible for parole.

16 The order of the Court is as follows -

The appeal is allowed.

The sentence imposed in the County Court on 26 November 2004 is set aside.

In lieu thereof the Court declares that the appellant is sentenced as a serious sexual offender in respect of counts 3, 4, 5, 6 and 8.

The appellant is sentenced on count 1 to 18 months' imprisonment, on count 2 to four years, on count 3 to six months, on count 4 to two years, on count 5 to two years and six months, on count 6 to three years and six months, on count 7 to three months and on count 8 to 12 months' imprisonment respectively.

As to cumulation, the Court fixes count 2 as the base sentence and orders that six months of the sentence imposed on count 1, six months of the sentence imposed on count 4, 12 months of the sentence imposed on count 5 and 18 months of the sentence imposed on count 6 be served cumulatively upon each other and upon count 2, making a total effective sentence of 71/2 years' imprisonment.

The Court fixes a non-parole period of 51/2 years.

The Court declares that, as at this day, the period to be reckoned as already served under the sentence is 705 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.

The Court declares pursuant to the Sex Offenders Registration Act that the appellant is a registrable offender and the Court declares that the reporting period for the appellant is life.

The Court orders pursuant to s.464ZF(2) of the Crimes Act 1958 that the appellant undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958.

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