R v C L P [2008] VSCA 113

Court of Appeal (Vic)|2008-06-19|Before: NEAVE and KELLAM JJA and OSBORN AJA

CRIMINAL LAW - Appeal against sentence - Father subjected four of his teenage daughters to regular sexual abuse between 1975 and 1984 - Voluntary confession to police 22 years later when appellant was 70 - Pleaded guilty to 14 counts including incest and indecent assault - Conviction on three of four incest counts solely based on admissions - Sentenced to total effective sentence of seven years and two months' imprisonment with non-parole period of three years and six months - Whether sentence manifestly excessive when regard had to admissions, attitude of victims to imprisonment of appellant, guilty plea, delay, remorse, age and ill health - Appeal dismissed.

1 The appellant, CLP, pleaded guilty to sexual offences committed against his four teenage daughters, between 23 and 33 years ago. The 14 counts to which he pleaded guilty comprised four counts of incest, seven counts of indecent assault of a girl under 16, two counts of indecent assault of a woman and one count of attempted indecent assault. The appellant was sentenced by a County Court judge to a total effective sentence of imprisonment of seven years and two months' imprisonment, with a non-parole period of three years and six months. Details of the sentences imposed on the individual counts are set out below. This is an appeal against these sentences, the total effective sentence and the non-parole period.

2 The offences occurred between 20 May 1975 and 3 October 1984. Their circumstances were as follows.

3 Counts 1 - 4 and count 9 relate to sexual acts affecting the appellant's oldest daughter, V. Count 2, the most serious offence, is a representative count of incest, which occurred when V was 13 years old. On that occasion the appellant removed V's clothing and began having sexual intercourse with her, in his bedroom in the family home. She pushed him off and ran out of the room.

4 Counts 1, 3, 4 and 9 are all counts of indecent assault of V. Count 1 is a rolled up count covering events which occurred at the Oakleigh drive-in when V was 13 years old. The appellant fondled V's breast and put his finger in her vagina, beneath a blanket. Counts 3 and 4 occurred when V was 15 years old. Count 3 related to an occasion when the appellant lay on top of V and simulated intercourse with her. Count 4 involved fondling her breasts. Count 9 involved fondling V's breasts when she was 18 years old.

5 Counts 5 - 7 and counts 10, 11 and 13 relate to the appellant's abuse of his daughter, L. Counts 5 and 6 were both indecent assaults which occurred when L was 14 years old. Count 5 involved fondling L's breasts. Count 6 involved the appellant inserting his penis in L's mouth. Count 7, an indecent assault, involved fondling L's breasts when she was 17 years old, while she was driving. Count 10, was a representative count of an act of incest which occurred in 1982, when L was 18 or 19 years old. Counts 13 and 14 are further representative counts of incest. These acts occurred in 1983 and 1984 respectively. Like count 10, they are based on the appellant's admissions. His Honour found that the appellant had had sexual intercourse with L over a number of years on a regular basis.

6 Count 11 relates to an attempted indecent assault of the appellant's daughter, D. Count 11 occurred between 1982 and 1984, when the appellant attempted to fondle her breast in the bathroom at their home. D was 16 or 17 years old at the time.

7 The final two offences, counts 8 and 12, are indecent assaults of another daughter, J. Count 8 occurred when the appellant caused J, who was then 13 years old, to stroke his penis. Count 12 occurred when the appellant touched J's breasts and thighs, and pushed his hand against her genital area, when she was in the back seat of L's car. She was 14 or 15 at the time.

8 In imposing sentence for these offences, the learned judge said that he would treat count 2 as the base sentence. His Honour then noted that the appellant fell to be sentenced as a serious sexual offender for count 3 and the following counts other than count 11. Under s 6E of the Sentencing Act 1991, the terms of imprisonment imposed on these counts must be served cumulatively, unless an order is made to the contrary. Accordingly, he made orders for cumulation in respect of count 1 and orders for concurrency in respect of counts 3 to 14.

9 In effect, the sentences and the orders for cumulation were as follows:

10 The sole ground of appeal is that the individual sentences, total effective sentence and non-parole period were manifestly excessive. In support of that claim it is said that insufficient weight was given to:

• the circumstances in which the appellant's offending came to the notice of police;

• the fact that the appellant's admissions were the only evidence against him in relation to some of the incest counts;

11 Counsel for the appellant conceded that the offences were extremely grave, and that the sentences imposed on the individual counts and the total effective sentence must denounce CLP's conduct. However he submitted that the offender's confession to the police should have been given much greater weight by the learned sentencing judge.

12 The appellant's counsel submitted that it was very rare for a person who had committed sexual offences against his children to voluntarily confess the offences to the police. The appellant's admission that he had sexually penetrated his daughter L, and his guilty plea to counts 10, 13 and 14 were particularly significant, because he could not have been convicted of these acts of incest without his admissions. L had said in her first statement to the police that she 'just didn't know' if full penis/vagina penetration had occurred and in her second statement said that she 'honestly believed it did not happen'.

13 Counsel submitted that the appellant's voluntary confession was likely to be cathartic for the victims. This should be treated as a very significant mitigating factor in sentencing, in order to encourage sexual offenders to acknowledge to their victims the harm they had done.

14 Counsel for the appellant also submitted that his Honour had given insufficient weight to the fact that three of the appellant's daughters had said that they did not want him to go to gaol.

15 Counsel for the appellant drew attention to sentencing statistics which showed that the median sentence imposed for incest in the years 2002/2003 to 2005/2006 was 4 years.[1] Counsel said that the base sentence of 4 years imposed on count 2 (the representative count of incest with V) and on counts 10, 13 and 14, (representative counts of incest with L), were manifestly excessive, having regard to the appellant's age and ill-health, his voluntary disclosure of the offences, and the fact that the offences occurred many years ago.

16 Counsel conceded that the individual sentences imposed on the indecent assault counts were within the range of sentences that could be imposed for those offences, but submitted that the orders for cumulation made in relation to the incest and indecent assault counts had resulted in a total effective sentence which was manifestly excessive.

17 Counsel for the respondent said that his Honour's sentencing reasons showed that he had given considerable weight to the appellant's admissions and guilty pleas. The learned sentencing judge could not have made it plainer that he had taken account of the fact that the appellant's convictions on counts 11, 13 and 14 were based solely on his admissions of penetration.

18 Counsel submitted that the sentences of imprisonment imposed on counts 2, 11, 13 and 14 were well within the range of sentences imposed for incest. He said that although the appellant could not be punished for offences with which he was not charged, his Honour was required to take account of the fact that these were not isolated incidents, but representative counts. His Honour had ordered that only 9 months of the sentence imposed on each of these counts were to be served cumulatively on the base sentence. Having regard to the fact that the appellant had to be sentenced as a serious sexual offender on these counts his Honour had made very moderate orders for cumulation.

19 Counsel also submitted that his Honour had given appropriate weight to all relevant mitigating factors, including the age and ill-health of the appellant, the concern expressed by three of the victims about their father going to gaol and the fact that the offences occurred so long ago.

20 Finally, counsel for the respondent contended that the non-parole period of three years was a merciful disposition, having regard to the serious and sustained nature of the offending. The applicant's record of interview had disclosed that he had had intercourse with L on a weekly basis over the periods during which the representative counts occurred.

21 The appellant's confession to the police appears to have been prompted by events in his family. The deposition of C, who is L's partner, states that after she told him that her father had abused her, he phoned the appellant and told him to go to the police and tell them what he had done or 'that he would deal with me'.

22 Although the admissions were not entirely unprompted, his Honour was required to give considerable weight to the appellant's disclosure of the offences, his guilty plea and to his admissions of frequent acts of incest with L. Cases such as Ryan v R,[2] The Queen v Ellis,[3] R v Brazel[4] and R v Doran[5] indicate that admissions of offences which would not otherwise have been identified require an element of leniency additional to the mitigating effects of a guilty plea. As Kirby J remarked in R v Ryan:

Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is, likewise, one of the objects of criminal punishment and that of judicial sentencing.[6]

23 Further, as Buchanan JA pointed out in R v Doran, the fact that a person has fully admitted his guilt demonstrates genuine remorse and is relevant to the offender's prospects of rehabilitation.[7]

24 Weight should also be given to an admission of sexual offences because it may help the victims to recover from the harm caused to them, particularly where, as in this case, the abuse occurred within a family and was kept secret by each of the daughters for many years.

25 In my view, his Honour gave appropriate weight to these matters in sentencing the appellant. In his sentencing reasons, the learned judge recognised the serious and systematic nature of the appellant's abuse of his daughters and took account of the principles of denunciation and general deterrence. However his Honour acknowledged that:

An important mitigating factor in this case is the action taken by you when confronted by what appears to have been a growing sense of anguish, if not anger, by some of your children and their partners.[8]

26 The learned judge clearly recognised the significance of the appellant's admissions, commenting that:

Your action in going to the police and making the confession that you did is a very strong demonstration of remorse and of acceptance by you of responsibility for what had happened. It merits a substantial discount in a sentence which would otherwise have been imposed. It has saved your daughters from the trauma of a trial and the community from the expense and inconvenience of a trial.[9]

Other references were made to the weight to be given to the appellant's confession at three other points in his Honour's reasons.[10]

27 The learned judge also explicitly acknowledged that the appellant's admissions provided the only basis for the appellant's conviction on counts 11, 13 and 14. He said that

I note that in her first statement [L] said that she did not know whether there had been penetration of her vagina. In her second statement she said that she honestly believed that it did not happen. The foundation for the charge is the confession made by you to the police. You told the police that you had sexual intercourse with [L] over a number of years on a regular basis.[11]

28 The complainant V referred in her statement to the police to the 'big fight' she had had with her sister J 'because I didn't want her telling everyone what our dad had been up to'. She said that:

I don't feel anything toward my dad. I don't feel hate, I don't feel anger, I feel nothing toward him. I have still had contact with dad over the years because none of the other girls or myself ever came out and told anyone about what had happened.

She said that her father needed psychiatric help and that if he did not get it he should go to gaol because of the 'trauma, confusion and pain' he had caused his four daughters.

29 In her victim impact statement the complainant L said that she did not wish to see her father in gaol as she did not think it would help her to obtain 'closure'. She said she wanted the abuse to be over once and for all and that she could not continue moving forward until he was released from gaol. She considered it would be traumatic for her to see her father in gaol.

30 The statement of the complainant J also speaks of conflict she had with her sister V because she had told someone that her father had touched her. Like the appellant's daughter L, his daughter J said that 'I don't want dad to go to jail, I just want him to get help'.

31 The Sentencing Act 1991 requires a sentencing judge to take account of 'the impact of the offence on any victim of the offence' and the 'personal circumstances of any victim of the offence'.[12] In R v Skura[13] Smith AJA recognised that the fact that a victim has forgiven an offender may show that an offence has had a limited psychological effect on the victim and may also be relevant to the offender's prospects of rehabilitation.[14] However it is clear that the weight to be given to the victim's attitude varies according to the circumstances of the case.

32 In R v Sa,[15] the victim of offences of aggravated burglary and intentionally causing serious injury gave evidence at the sentencing hearing that he had forgiven the offender and did not want him to be sent to jail. Eames JA said that the sentencing judge's statement, that the attitude of the victim could not 'govern' the sentencing approach, was consistent with the principles laid down by the Court of Appeal in R v Skura.[16] In evaluating the weight to be given to such a statement it was necessary to take account of the fact that there may be multiple victims to the crime, that some people may have been indirectly affected by the offence, and that external factors may have led a victim to support a lenient sentence.[17] Eames JA also recognised that it is not always possible for a victim to assess what is in his or her best interests. He said:

One reason why courts do not allow the wishes of the victim to determine the sentence to be imposed is that the victim might not always be able to assess what is in his or her own best interest. For example, when considering what weight to give to factors of general and specific deterrence in a case of a woman assaulted by her partner a sentencing judge would be minded to have regard to the imperatives which might motivate a battered wife to plead for leniency towards her attacker. In such circumstances the sentencing judge might be cautious about giving undue weight to such a plea for leniency.[18]

33 The appellant's daughters' concern about their father's imprisonment does not indicate that they have recovered from his abuse. It is apparent from their statements that their sexual exploitation has had long-lasting effects upon them. As well as the mental anguish arising from their knowledge that they were sexually exploited by the father they should have been able to trust, their relationships as sisters were affected, particularly the relationship between V and J.

34 The psychological effects of intra-familial sexual abuse are extremely complex. It is not surprising that three of the four complainants were concerned about their elderly father going to jail, despite their recognition of the harm he had caused them.

35 The learned sentencing judge referred to the fact that the appellant's daughters L and J had said that they wanted their father to acknowledge what he had done to them, but did not want him to go to gaol, and that D had said that it would be traumatic for her to see her father in gaol. He said that:

The attitude of your daughters is an important matter. It is, however, not the only matter to be considered or the one to which most weight must be given. These are criminal offences. The community also requires you to take responsibility for what you have done. It is necessary to clearly denounce the sexual exploitation by a father of his children and to seek to deter others from committing similar offences.[19]

36 As this passage shows, his Honour took careful account of the offender's daughters' attitudes to his imprisonment. In my opinion the learned sentencing judge dealt with the statements made by the offender's daughters in an entirely appropriate manner.

37 Counsel for the appellant submitted that the long delay between the commission of the offences and the appellant's confession to the police, should have been given greater weight as a mitigating factor. He said that the effects of the delay included the fact that the appellant had to be sentenced for the offences at the age of 70, that he had not been convicted of any offences in the intervening period and that he had a low likelihood of re-offending.

38 It is common for child victims of sexual assault to delay reporting offences for many years. In this case the offences came to light because the offender confessed to them.

39 In R v MWH[20] Callaway JA said that a delay between the commission of an offence and the time of sentencing might be relevant to sentencing in a number of ways. He said that:[21]

It is the effects of delay that are important for sentencing. ... [T]he prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution[22] or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light.[23] There may be practical considerations that require a marked degree of leniency to be extended.[24] The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation.[25] The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life.[26] He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.

40 Although his Honour did not explicitly refer to delay, in my opinion he took account of all of the matters to which Callaway JA referred. The learned sentencing judge said that the appellant was 'a man of advanced years' which meant that his period of worthwhile life after release from gaol would be reduced.[27] He recognised that the appellant's age and cardiac disorder would make the experience of imprisonment harder for him than for a younger man. He gave weight to the appellant's remorse and referred to the psychological report by Mr Crewdson which indicated that there was no risk that the appellant would re-offend. His Honour referred to the appellant's advanced years, his ill health, his rehabilitation and vastly different personal circumstances from those which were present at the time of the offending.

41 His Honour also said that in imposing a non-parole period of three years and six months he had 'had particular regard' to the appellant's confession, to the responsibility he had taken for his actions many years ago, to his remorse, age and poor health and to the attitudes of his daughters.[28]

42 In this case the learned judge had to make a difficult sentencing decision. On the one hand his Honour had to sentence the appellant for persistent and appalling acts of sexual abuse, occurring over a lengthy period. As his Honour said, the appellant

opportunistically used [his] daughters as sex objects, apparently largely unaware of the reprehensible character of [his] behaviour and the harm that [he] was doing to [his] family.[29]

In these circumstances his Honour had to impose a sentence which took adequate account of the principles of denunciation and general deterrence.

43 On the other hand his Honour also had to give considerable weight to the appellant's confession. As well as saving the cost of a criminal trial and relieving the appellant's daughters from having to testify against him, the appellant's acknowledgement of responsibility may, in the future, help his daughters to come to terms with what he did to them.

44 The learned judge was also required to have regard to other mitigating circumstances, including the appellant's age, ill-health and the likelihood that he will not offend in the future.

45 At the time the acts of incest occurred, the maximum sentence for incest was 20 years. The highest sentence imposed by his Honour was four years for count 2, the representative act of incest, with V, who was only 13 years old when her father had intercourse with her. I do not consider that this sentence was manifestly excessive.

46 The learned judge sentenced the appellant as a serious sexual offender to three years' imprisonment on each of counts 11, 13 and 14, all of which were representative counts. These sentences were 15% of the maximum term and fell well within the range of sentences which could be imposed for this offence.

47 Under s 6E of the Sentencing Act 1991 such terms of imprisonment must be served cumulatively on any uncompleted term of imprisonment sentence imposed on that offender, unless the Court makes a contrary order. I agree with the submission made by counsel for the Crown that his Honour's orders for cumulation were moderate, having regard to the gravity of the offences.

48 The maximum term of imprisonment for the indecent assaults on V (counts 1, 3, 4 and 9), on L (counts 5, 6 and 7), and on J (counts 8 and 12) was five years. As counsel for the appellant conceded, the sentences imposed on these counts and for the attempted indecent assault of DC (count 11) were lenient.

49 The appellant had to be sentenced as a serious sexual offender for the indecent assault counts, other than count 1 (indecent assault of V) and count 11 (an attempt). I consider that the orders for cumulation relating to the sentences on these counts were very moderate.

50 The non-parole period of three years and six months fixed by his Honour was a merciful disposition, which reflected the appellant's advanced years and the impact of imprisonment upon him.

51 In my opinion, his Honour exercised his sentencing discretion with great care. The individual sentences and total effective sentence were well within that discretion.

53 I have read the draft judgment of Neave JA and for the reasons expressed by her I agree that the appeal should be dismissed.

54 I have read the draft judgment of Neave JA and for the reasons expressed by her I also agree that the appeal should be dismissed.

[1] Sentencing Advisory Council, Sentencing Snapshot No. 43: Sentencing trends for incest in the higher courts of Victoria, 2002-03 to 2006-07 (February 2008) 3.

[2] (2001) 206 CLR 267, 272 (McHugh J), 295-296 (Kirby J).

[3] [1986] 6 NSW LR 603, 604 (Street CJ).

[4] [2005] VSCA 56; (2005) 153 A Crim R 152, 159 [21] (Callaway JA).

[10] Reasons for sentence [11],[12],[34].

[12] Section 5 (2)(daa) and (da) respectively.

[17] In R v Sa the offender and the victim were members of the Samoan community. His Honour suggested that the victim's forgiveness of the offender might have been motivated by that fact.

[18] R v Sa [2004] VSCA 182, [39].

[21] Ibid [18] (citations in original).

[22] See, for example, R v Schwabeggar [1998] 4 VR 649 and R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303. As to three of the possible effects of delay, see the latter case at [16].

[23] See, generally, R v Kane [1974] VicRp 90; [1974] VR 759, 767; R v Quinlivan (Unreported, Court of Criminal Appeal, 23rd May 1995), 4-6; R v Law (1995) 78 A Crim R 486, 66 and R v King (1998) 99 A Crim R 288, 294.

[24] See, for example, R v Todd [1982] 2 NSWLR 517, 519-520. Neither R v Harrison (1990) 48 A Crim R 197 nor the context in which the observations in Todd were cited with approval in Mill v R (1988) 166 CLR 59 at 64 means that those observations bear only on totality. That is not their natural meaning and not how they were understood by Tadgell, JA in R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591.

[25] Sometimes I shall use the word 'reformation'. I intend no difference in meaning.

[26] See R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591.

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