R v C J K [2009] VSCA 58

Court of Appeal (Vic)|2009-03-27|Before: Warren, CJ, Vincent and Neave JJA

CRIMINAL LAW - Sentence - Indecent act with child under age of 16 - Sexual penetration of a child under age of 16 - Assault - Threat to kill - Rape - Representative counts - Distinction between representative counts and single counts - Whether representative count an 'aggravating feature' for the purposes of sentencing - Meaning of 'aggravating feature'.

1 On 23 November 2006, the appellant, CJK, pleaded guilty to the following charges:

two counts of an indecent act with a child under 16 (counts 1 and 11);
three counts of common assault (counts 2, 9 and 10);
one count of making a threat to kill (count 3);
three counts of sexual penetration of a child under 16 (counts 4, 5 and 6);
one count of rape (count 7); and
one count of reckless conduct endangering persons (count 8).

2 With the exception of counts 8 and 11, all counts were representative. On 15 December 2006, the appellant was sentenced to a total effective sentence of 15 years and 9 months' imprisonment, with a non-parole period of 12 years.

3 The offences occurred against four children. The principal complainant, CL, was between 11 and 17 years of age during the appellant's offending conduct. CL is the daughter of one 'S' and her first husband. NM was between 11 and 14 years of age during the offending conduct against him. He is the son of S and her second de facto husband. AC and EC are the son and daughter of S and the appellant. AC was about 7 years old and EC was about 5 years old at the time of the offending.

4 S and the appellant were married from 1991 to 1995. In that period, AC and EC were born. Following the breakdown of the marriage, the four children lived with the appellant pursuant to a Family Court order. Each of the children alleged the appellant assaulted them during the period of 18 December 1995 to 9 August 2003.

5 Between 1 January 1996 and 1 February 1997, the appellant massaged CL's inner thighs and around her vagina. This conduct constitutes count 1 and is representative of many occasions that CL remembers when the same kind of thing happened.

6 Between 25 January 1998 and 1 May 1998, CL went with the appellant to the doctor. In the presence of the appellant, the doctor asked CL if she was sexually active and, for reasons unclear, sent her to a pregnancy clinic, which she did not attend. On returning home, the appellant beat CL because he assumed she must have been having sex with someone else if she was pregnant as the appellant had not ejaculated in her. He hit her about the head and assaulted her with a leather belt. This conduct constituted count 2 and is representative of a continuing course of conduct during the same period.

7 Between 31 March 1998 and 31 July 1998, CL received a phone call from a boy, following which the appellant beat her and said 'if you scream or make any noise I will beat you until you die.' This conduct constituted count 3 and is representative of a continuing course of similar conduct during the same period.

8 Between 31 March 1998 and 31 July 1998, the appellant pushed CL's legs over her head and penetrated her vagina with his penis causing her great pain. This conduct constituted count 4. It was the first time such conduct took place, occurred on the same occasion as the conduct under count 3, and is also representative of a continuing course of similar conduct during the same period.

9 On 30 December 1998, the appellant called CL into his bedroom and asked her for anal sex for the first time. She reluctantly agreed, not really understanding what would happen. It caused her great pain. The appellant ejaculated inside her. This conduct constituted count 5 which was the first time such conduct took place and is representative of a continuing course of similar conduct during the period until CL turned 16 years old.

10 Between 1 October and 12 October 1999, the appellant kissed CL with his tongue in her mouth. He then forced his penis into her mouth for the first time and told her if she bit him he would kill her. He ejaculated into her mouth and forced her to swallow it. This conduct constituted count 6. It was the first time she could remember it taking place and is also representative of something similar happening many times in his room.

11 Between 26 and 27 January 2001, the appellant entered CL's room, ripped off her underwear, told her to shut up and said he would do what he wanted. He then lay on top of her and penetrated her vagina with his penis. This conduct constituted count 7 and represents a course of conduct from the time she turned 16 years old until the time she and the children left the appellant.

12 Between 18 December 1995 and 1 June 1997, NM's asthma puffer ran out. The appellant made him run around the house to induce an asthma attack to punish him. His mother came to collect him during this incident and he used her puffer. This conduct constituted count 8.

13 Between 25 January and 24 December 1998, the appellant hit NM on the backside with his belt, 'nearly every night'. The first occasion he can remember constituted count 9 which is a representative count.

14 Between 6 April 1998 and 1 February 1999, the appellant belted AC and AC urinated in his pants. NM witnessed the incident and recalls this as the first such occasion. From then on, the appellant made AC go to the toilet before he started belting him. This conduct constituted count 10 and is a representative count.

15 Between 1 February 1999 and 1 December 2000, the appellant exposed his penis to EC, in circumstances where he spoke to her suggestively and was physically rough, shoving and pushing and picking her up and dropping her. This constituted count 11.

16 During the periods when the offences under counts 4, 5 and 6 occurred, CL was under the appellant's care, supervision or authority.

17 CL provided a lengthy statement and also participated in taped telephone conversations with the appellant in which the appellant made a number of admissions.

18 The appellant seeks leave to appeal against sentence on the basis that the sentence was manifestly excessive (ground 6). Further, that the sentencing judge erred:

In her treatment of the appellant's plea of guilty and indications of remorse (ground 1);
In her treatment of the evidence relating to the appellant's abusive upbringing (ground 2);
In failing to properly take into account the principle of totality (ground 3);
In treating the 'offending of a similar nature over a prolonged period' involved in the representative counts - as a 'particularly significant and aggravating feature' (ground 5).

19 Ground 4, failing to properly take into account the appellant's disturbed state of mind, was abandoned.

Ground 1 - The sentencing judge erred in her treatment of the appellant's guilty plea and the indications of remorse

20 It was submitted for the appellant that the sentencing judge erred in her treatment of the appellant's guilty plea and the indications of the appellant's remorse. This was demonstrated, it was submitted by her Honour's remarks that

such expression of remorse as may be implicit in [the appellant's] plea, comes at a time designed to facilitate [the] sentencing disposition rather than at a time which could have played a meaningful role in relieving the distress of [the] victims.

21 It was further submitted that these comments were contrary to the prosecutor's remarks on the plea.

22 On the plea, the prosecutor conceded that the plea of guilty was 'a very significant matter in this case'. The prosecutor acknowledged the admissions in the pretext conversations and the record of interview, and the consequential likelihood of a guilty plea. The prosecutor further remarked that the reality that a guilty plea was the likely course 'might have taken some time to come home to [the appellant]'. The prosecutor concluded that whilst the plea was a late plea it should still be given significant weight. The quotation relied on by counsel for the appellant, quoted above, must be read with the surrounding paragraphs, that is, in context. Her Honour observed that the guilty plea came late in the proceedings, acknowledged the admissions made, the prosecutor's concession of the significance of the plea, and the principal complainant's relief at not being required to undergo cross-examination. At the conclusion of the passage, her Honour expressly stated that she accepted the plea as a significant mitigating factor.

23 I do not accept that her Honour's remarks were inconsistent with the prosecutor's, nor that they demonstrated error in the treatment of the plea and indications of remorse. In fact, they specifically acknowledge and incorporate the prosecutor's remarks, including the significance of the plea and vindication felt by the principal complainant. It was open for her Honour to differentiate between a guilty plea at the first opportunity and a plea later in proceedings. It was also open for her to consider that a later plea has a less positive impact on the victims than an earlier plea. Her Honour's statement that the expression of remorse 'comes at a time designed to facilitate [the] sentencing disposition' was open to her Honour on the basis of the late plea and it was reasoned as one element in the weighing of the plea, which was ultimately concluded to be a 'significant mitigating factor'.

Ground 2 - The sentencing judge erred in her treatment of the evidence relating to the appellant's abusive upbringing

25 Counsel for the appellant submitted that her Honour's remarks disclosed a difficulty in accepting the appellant's history, as provided by the psychological report of Mr Crewdson, and that this difficulty was not raised during the plea. Further, it was submitted that, contrary to the law,[1] her Honour had no regard for the appellant's abusive upbringing.

26 As evidenced by the psychologist's report, the appellant claimed that he had 'an unstable and violently abusive childhood, with a progression through sexual abuse, later psychological domination in a homosexual relationship and two unstable marriages involving three blended families.' He claimed physical abuse by both his mother and his father and a volatile relationship between his parents. He also claimed sexual abuse around the time of puberty by the caretaker of the local caravan park.

27 The appellant's parents each provided a statement. His mother stated that she was the main disciplinarian and she did hit the appellant but 'never caused serious injury' and 'was not over board'. She said she had had a 'great relationship' with the children, the siblings got on well and although there were occasions when they fought, she considered it normal. She recounted behavioural traits of the appellant as a child and that as an adult he had told his parents he had been raped as a child and had had sex with his brothers. She also recounted details of the appellant's relationships with his partners and his children.

28 There was no mention in the father's statement of the appellant's upbringing, though he did recount that the appellant had told him he had been raped and had had sex with his brothers. He also recounted details of the appellant's relationships with his partners and his children.

29 The reasons for sentence disclose that her Honour had regard to the appellant's upbringing demonstrated by the following:

Her Honour acknowledged the report of the psychologist and the appellant's account of his family, education, employment and social history, including the description of his mother being unstable and violent towards him;
Her Honour acknowledged the statements made by the appellant's parents;
Her Honour had regard to all three statements to the effect that she considered the parents to contradict the appellant's account;
Her Honour acknowledged the psychologist's observation that the appellant presented a complex psychological profile and provided 'bizarre explanations' for his conduct; acknowledged the psychologist's conclusion that the appellant is 'not without potential', observing its relevance to the appellant's rehabilitation; and acknowledged the psychologist's recommendation that the appellant be subject to long term scrutiny and assessment.

30 Each of these matters demonstrates the judge's regard to the evidence of the appellant's history and upbringing and its inclusion in her Honour's reasoning process.

31 Having closely considered the reasons for sentence, here, unlike in R v AWF,[2] her Honour did not disregard the appellant's background on the ground that it was irrelevant, but may be seen to have incorporated it into the sentencing synthesis. As expressed by Ormiston JA in AWF,

such evidence [of childhood sexual abuse] is relevant, but its relevance and persuasiveness will vary greatly from case to case, especially where the charges are of the most serious kind. [3]

32 In my view, no appellable error is made out on this ground.

Ground 3 - The sentencing judge erred in failing to properly take into account the principle of totality

33 The appellant fell to be sentenced as a serious sexual offender on counts 5, 6, 7 and 11. Her Honour acknowledged s 6E of the Sentencing Act 1991 which directs that, unless otherwise directed by the court, sentences should be served cumulatively. Counsel for the appellant challenged the following remark of the learned judge:

Ordinarily in cases such as this there would be no reason not to allow section 6E to have full effect, particularly having regard to the circumstances which I have already detailed, the number and age of the complainants at the time of your offending and the fact that you were in that very special position of trust and responsibility as a parent. However, given the number of counts and the maximum penalties provided by Parliament, in order to avoid a sentence which would be crushing in the terms discussed in the case of R v Yates,[4] it is appropriate to make orders otherwise and permit a substantial degree of concurrency.

34 Counsel submitted that the first sentence revealed a misapplication of the totality principle and failed to recognise that the provision should be applied with the principle of totality 'very much in mind'. For this argument to succeed, her Honour's remarks would have to be interpreted as implying that 'normally the principle of totality does not apply'. I do not consider that this is what her Honour said or indeed what was implied. To give 'full effect' to a legislative provision does not mean to ignore all or any other applicable principle. In my view her Honour says no more than in the particular circumstances of this case the principle of totality requires a degree of concurrency. In my view, no error arises.

It is a particularly significant and aggravating feature of your offending that in the case of nine counts they represent offending of a similar nature over a prolonged period.

37 It is the reference to 'aggravating feature' that was challenged on appeal. It was submitted that the fact that a count is a representative one cannot be taken into account as an aggravating factor or, at a minimum, the law is not settled on this point and the court should decisively indicate the position.

38 A representative count is achieved by the accused agreeing with the prosecution that in order to reduce the number of charges faced, there will be a plea of guilty to a count which is representative of other uncharged acts.[5] The consent to the representative count must be express and unequivocal.[6]

39 At the time of sentencing an offender, a trial judge may sometimes refer to the 'aggravating features' of the offender's conduct. This reference is sometimes misunderstood to mean something it is not. Such references, as explained by the High Court in Siganto v the Queen, are usually intended at denying the existence of circumstances of mitigation:

To some, it may appear a matter of semantics to distinguish between denying the existence of circumstances of mitigation and asserting the existence of circumstances of aggravation; and judicial statements intended as the former may sometimes be misunderstood as intending the latter. However the distinction can be important. [7]

40 The court went on to say that it is proper for a sentencing judge to observe that circumstances which might otherwise attract leniency are absent, and that a trial judge's reference to the absence of a matter of mitigation does not mean that the judge is indicating the presence of a circumstance of aggravation.

41 It follows then that the present case is an example of the type of misunderstanding referred to in Siganto. At the root of the misunderstanding is the reference by the trial judge to 'aggravating feature', which may appear to be asserting the existence of aggravating circumstances, but in actual fact goes to the absence of circumstances of mitigation, so as to exclude leniency in sentencing. There is an important distinction[8] between 'refraining from taking something off and adding something on'.[9] While the distinction has been referred to as 'approaching the metaphysical'[10] it forms part of the well established law in Victoria applying to the sentencing of representative counts.[11]

42 Turning then to the application of this distinction to representative counts, we are assisted by observations made by Batt JA in R v SBL:

Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may [...] be had to the [...] whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone. [12]

43 To the same effect, the statement of Nettle JA in DPP v EB[13] demonstrates that an offender sentenced for a representative count may be denied any leniency that might have been permitted on the basis that the offence was an isolated event, or likely to be repeated:

the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context. [14]

44 It is on this basis that a distinction can be recognised between representative counts (expressly agreed to by the offender as such) and single counts that have been tested at trial as single counts. Representative counts indicate an agreement between the prosecution and the accused that a particular count is representative of a course of conduct. Their use is an established practice in Victoria and an effective bargaining tool, with benefits for the prosecution and the accused and, indeed, for the administration of criminal justice. Disputed counts are tested at trial as a single count, often with other counts, and a sentencing judge will consider which counts have been proved and weigh up the effect on the sentencing synthesis having regard to the circumstances relating to each count and the subjective elements of the case. The distinction is slight but nonetheless important.

45 In R v Godfrey,[15] the South Australian Court of Criminal Appeal confirmed that a court

cannot increase the sentence by reason of a finding on a disputed facts hearing that offences not admitted or asked to be taken into account have in fact been committed (emphasis added).[16]

46 In contrast, representative counts may form the basis for a higher sentence than that which would have been imposed for a single charge:

Conduct amounting to the commission of the other offences can only provide a basis for increasing the sentence if the accused is found guilty of those [offences] at trial, pleads guilty to them, asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative counts (emphasis added).[17]

47 The representative nature of a representative count enables regard to be had to, and sentencing to occur in, the 'full circumstantial context', as expressed by Nettle JA in DPP v EB:

[The relevant counts] were representative counts which made it appropriate to impose a higher sentence in relation to those counts than would be the case in relation to an isolated count. Admittedly, that notion is not without its conceptual difficulties because of the principle that a prisoner is not to be punished for uncharged acts. But as Batt JA explained in R v SBL, the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context. Thus a representative offence is likely to attract a greater sentence than an isolated offence. [18]

48 Put another way, it enables the court to have regard to 'the whole picture' as observed in R v Wright:

Where an accused is committed for trial upon, or is admitted to have committed a large number of similar offences, it is not uncommon for him to be presented only upon a selected number of such offences. When that course is adopted with the consent of the accused, there is nothing objectionable in the Court having regard to the whole picture presented by the accused's conduct in determining the sentence appropriate to be passed upon the counts to which he pleads guilty. [19]

49 In SBL, Batt JA went further and expressly held that 'the fact that a count is agreed to be a representative, specimen or sample count is an aggravating circumstance'.[20]

50 His Honour reasoned that even though Wright (i.e. regard to 'the whole picture') antedated the key authorities which held that only proved or admitted offences could be incorporated into sentencing,[21] the two principles were not inconsistent because representative counts involve a 'consensual element'.

51 In SBL, Phillips CJ and Ormiston JA in separate judgments did not expressly accept or reject this proposition. Phillips CJ disposed of the issue by acknowledging counsel for the appellant's argument that:

Wright stands for the proposition that with agreed representative counts the judge is entitled to have regard to the whole of the circumstances.

I did not understand counsel for the respondent to dispute this or the preceding propositions. [22]

52 Phillips CJ went no further in articulating the position, which , in DM,[23] has been interpreted as 'not unequivocally' accepting that agreed representative counts can be used as an aggravating feature. In that case, on appeal, the appellant argued that whilst he had pleaded guilty to several counts, they were not agreed to be representative. The issue was whether the sentencing judge had treated them as such. In this light, the court in DM referred to sections of SBL which relate to representative counts and the use to be made of uncharged acts in sentencing.[24]

53 In SBL, Ormiston JA clearly distinguished the cases in which sentence was imposed after a contested trial and observed interstate cases to be of relatively little assistance given variation in the practice of using representative counts across different jurisdictions.[25] His Honour cited Wright (as quoted above) and observed that:

Nelson J was one of the most experienced criminal judges sitting on the court at that time and there cannot be the slightest doubt that the practice which he described was applied regularly and thought appropriate to deal with the kind of cases he was discussing. [26]

Having regard to the fact that counsel for the respondent did not dispute the director's submissions as to the manner in which representative counts should in general be dealt with on sentence, it would perhaps be unwise to go further than to say that the whole of the circumstances relating to each count must be given proper effect and recognition for the purposes of imposing a just sentence, paying due regard to recognised principles of proportionality and totality.[27]

55 It is clear that, at a minimum, a sentencing judge may look to the whole picture in determining the appropriate sentence and the representative nature of the representative counts is likely to lead to a greater sentence than otherwise would be imposed.[28] The question then becomes - does that equate to an 'aggravating' feature?

56 The Oxford English Dictionary defines aggravating as 'make (a problem, injury, or offence) worse or more serious'; and aggravated as '(of an offence) made more serious by attendant circumstances'.[29] The Australian Legal Dictionary defines aggravating circumstance in criminal law as

a circumstance surrounding the commission of an offence that renders an offence more serious and, therefore, subjects an accused to a greater penalty than for the same offence without aggravation.[30]

57 In Corbett,[31] the use of the term 'aggravating' was challenged on the ground that it was used in conjunction with facts that purportedly indicated the judge had had regard to offences that were not the subject of the charges. The court drew a distinction between a 'technical' use of the term aggravating and a 'colloquial' use. The court determined that, notwithstanding the use of the term, the judge below had reasoned in accordance with proper principles and read the use of 'aggravating' in a colloquial sense.[32]

58 In my view, it is appropriate to be cautious about the use of terms such as aggravating in sentencing. I do not consider that representative counts should be seen as aggravating per se; nor should the representative nature lead to an inappropriate sentence. However, a sentencing judge is permitted to look to the whole picture, including the conduct which is represented in the count. In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances. If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representation, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only 'colloquially'. However, it would be desirable to avoid the expression in the context of sentencing on a representative count.

59 In R v JCW[33], Spigelman CJ considered SBL, among others, and concluded that for representative counts to be a circumstance of aggravation there must be sufficient particularisation of the representative nature and that an admission 'must be referrable to a precise and properly particularised incident or incidents.'[34] Furthermore,

an admission [of a general, unparticularised nature] is appropriate to be taken into account for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence. It is not however, in my opinion, appropriate to be taken into account as a circumstance of aggravation, if that be permissible at all.[35]

60 In my view, the above statement does not accord with the law in Victoria as held in SBL and the authorities adopted therein. By virtue of Victorian authority, representative counts may be considered in their full context. The Victorian Court of Appeal has recently held that detailed particularisation is not required:

When a sentence is imposed on a representative count it is appropriate and necessary for a sentencing judge to identify some level of detail of the conduct represented by the count on which sentence is to be passed so that the 'whole picture' can be seen.[36]

61 Furthermore, to restrict the sentencing use to a rejection of mitigation, in the absence of precise particularisation, would reduce the effectiveness of this plea mechanism, putting its sentencing use on a par with disputed counts. Hence there are sound policy reasons that underlie the Victorian position.

62 There is an additional factor that arises in the sentencing of representative counts. Due to their representative nature, the impact of the offending upon the victim of the representative count is highly likely to be greater than for the victim of a single but comparable count. Each case will turn on its own facts. That said, there are sound policy reasons for a judge when sentencing to look at the 'whole picture' of the offending represented in the representative count to ensure the impact on the victim of that count is adequately reflected in the sentence imposed.

63 The sentencing judge in this case had proper regard to the appropriate sentencing principles. Her Honour referred to SBL and correctly stated the principle therein that

the sentencing judge is entitled to have regard to the whole picture presented by the offender's conduct in determining the sentence appropriate to be passed upon the counts to which the offender pleads guilty.

64 Her Honour also referred to the application of that principle in R v GJN[37] quoting from the judgment:

Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. [38]

65 Her Honour acknowledged she was guided by the principles in that case. She proceeded, correctly, to outline the relevant facts and apply them to the necessary sentencing considerations.

66 In the context of the reasons for sentence, reading them as a whole, the use of the word 'aggravating' did no more than articulate the broader circumstances, the 'whole picture'. I do not consider that the sentences imposed individually on the representative counts, or in totality, offended sentencing principles. Ground 5 is not made out.

67 It was submitted that, whilst a stern sentence was appropriate, there were significant matters in mitigation and that the manifest excess of the sentence was grounded in the specific sentencing errors alleged in grounds 1 to 5. As none of these grounds is made out, this ground fails.

69 I have read the judgment of Warren CJ and I agree that the appeal should be dismissed for the reasons given by her Honour.

70 I have had the considerable advantage of reading in draft the reasons of Warren CJ. I agree that the appeal against sentence should be dismissed, for the reasons given by her Honour.

[5] R v DM [2007] VSCA 155 ('DM').

[6] Kingswell v R [1985] HCA 72; (1985) 159 CLR 264, 288.

[9] The Queen v Reiner (1974) 8 SASR 102, 105.

[11] R v SBL [1998] VSCA 144; [1999] 1 VR 706 ('SBL'), R v JCW [2000] NSWCCA 209, [52].

[16] R v Godfrey (1993) 69 A Crim R 318, 322; cited with approval in SBL [1998] VSCA 144; [1999] 1 VR 706 and R v Holyoak (1995) 82 A Crim R 502.

[18] DPP v EB [2008] VSCA 127, [15].

[19] R v Wright (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 13 May 1974, Gowans, Nelson and Anderson JJ), 9 ('Wright').

[28] DPP v EB [2008] VSCA 127, [15].

[29] Oxford University Press, Oxford Dictionary of English (2nd ed, revised, 2006), 31.

[30] LexisNexis Butterworths, Butterworths Australian Legal Dictionary (1997), 39.

[32] Note, the permissible sentencing use of representative counts in this case was for 'leniency which would not have been accorded if they were isolated instances'.

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