R v Cleary [2004] VSCA 14

5. The first three counts on the presentment were representative in nature and arose from a florid but abbreviated sexual relationship between the applicant and B.W. in February and March 2002 when the applicant was 29 years of age and B.W. was 14 years of age. The applicant, at that time, was the captain of his local surf life saving club and B.W. a young member of the club. Fortunately, the offending was exposed when B.W.'s school teachers became aware of it and contacted her parents. The offences remain serious notwithstanding that B.W. appears to have been a willing participant in the sexual conduct. Although consent of the victim is, by law, irrelevant to the determination of guilt, it is pointed out by the authors of Fox & Freiberg on Sentencing (2nd Edition) 1999 at page 938:

"[Consent] is highly relevant to sentence. Sentences at the lowest end of the range will be appropriate for consensual acts of intercourse between persons whose age difference is not great."

The age difference in this case, of course, was significant; and it should be noted that the applicant accepted that, although his actions were not those of a predator, he was in breach of his position as a person who had authority and control over B.W.

10. The sentencing judge regarded the offending as serious, involving as it did - at least in some circumstances - the supply of alcoholic liquor to B.W., and the deceit by him of her parents. He also appears to have regarded it as an aggravating factor that, on one occasion of penile intercourse, he had "ejaculated inside her".

13. The offending apparently started on the evening of 9 February 2002 when the applicant and B.W. were in the "bunk house" of the club premises. They were sitting together watching a video recording when they started to kiss one another. B.W. then fondled the applicant's penis, and he then inserted his finger into the complainant's vagina; an act which he repeated more than one month later near the victim's parents' house in Sunshine. These acts were the subject of count 1 on the presentment. Thereafter, B.W. sent an E-mail to the applicant and a number of communications passed between them. The applicant and B.W. made an arrangement to spend the night of Friday 1 March 2002, and the following weekend, at the home of the applicant's parents near the beach where the surf club was located. The applicant picked B.W. up from the parents' home and drove her to the beach. It appears that the applicant lit the fire in the lounge room of the house and he provided her with some alcoholic liquor. During the evening they engaged in acts of intercourse on a mattress which the applicant had placed on the floor. The applicant had asked B.W. (in an earlier communication via the Internet) how far she "wanted to go"; to which B.W. had responded "all the way". B.W. then told the applicant that she was "not a virgin". As a prelude to the act of penile-vaginal intercourse the applicant had engaged in lingual penetration of B.W.'s vagina. Thereafter, they engaged in the acts of penile-vaginal intercourse. When they awoke on the following morning, each of these methods of intercourse was repeated. The penile-vaginal intercourse was the subject of count 2; and the lingual acts were the subject of count 3. When B.W. was asked by the police whether the applicant had ejaculated during the course of the penile-vaginal intercourse, she replied that she was not sure. When the applicant was asked the same question during the course of his interview with the police, he said that he had ejaculated on one occasion but not upon the other. On Sunday, 3 March 2002 the applicant took B.W. back to Melbourne in his car. On the way home they stopped on the side of the road; and an act of oral sex occurred. This was the subject of count 4.

16. At the time of sentence, the applicant was aged 30 years. He was a man of previous good character. When confronted, he made full admissions of his wrongdoing to the police. Although, no doubt, it was of little comfort to them, he made expressions of extreme regret to B.W.'s parents. I say it would have been of little comfort to them because, by his activities, the applicant had not only failed to resist the temptation to take advantage of his position, but had breached the trust which the girl's parents had reposed in him. However, as I have said, the applicant was otherwise of good character, and many people who knew him came forward to attest to that fact on the plea hearing before the judge.

19. The applicant's departure from his previous standards of good conduct have cost him dearly. The judge before whom he pleaded guilty sentenced him to four years in gaol; and directed that he serve one year and nine months of that sentence before becoming eligible for parole. He has already served nearly ten months of that sentence. His Honour's sentencing discretion was exercised as follows:

His Honour ordered that six months of the sentences imposed upon counts 3 and 4 were to be served cumulatively upon each other and upon the three years which his Honour had ordered should be served on count 2. This cumulation, no doubt, was designed to reflect the fact that, in respect of counts 3 and 4, the applicant was being sentenced as a serious sexual offender. In any event, the total effective sentence was four years' imprisonment.

27. It is against those sentences that the applicant now seeks leave to appeal; electing to do so after a single judge of this Court has refused leave pursuant to s.582 of the Crimes Act. There are a number of grounds for appeal which include:

(a) That the individual sentences and the total effective sentence are manifestly excessive; a ground which includes the assertion that the judge was in error in failing to find that the applicant was remorseful (grounds 1 and 4).

(b) The alleged erroneous finding that the penile-vaginal penetration, the subject of count 2 was aggravated by the applicant's conduct of "ejaculating into the complainant's vagina" (ground 5).

33. The issue of the applicant's ejaculation appears to have pervaded the course of the plea in respect of count 2. The prosecutor first raised it; the judge "took it up" during the course of the plea; it became the centre of discussion at the end of the plea; and his Honour, in the course of his sentencing remarks, referred to the fact that:

"Before you engaged in penile-vaginal intercourse, you provided liquor to your victim and, on one occasion, you ejaculated inside her."

37. At the outset of the application in this Court, Mr. Boyce (who appeared for the applicant) sought leave to file an affidavit sworn by the applicant in which he deposed that the sentencing judge had incorrectly assumed from the evidence before him that he, the applicant, had "ejaculated inside" B.W. The ejaculation he swore, was not "inside B.W.", but "onto the bed". He had sought to "get the attention" of his barrister and solicitor when the matter was being broached on the plea, but was unsuccessful. After the plea, and whilst in the cells, he spoke to his barrister (who was not his counsel in this Court) and solicitor and informed them of the "true facts". He said that he was told that the issue "would be looked into and fixed up"; but it was apparent from the sentencing remarks that nothing had been done. After sentence, the applicant swore that he had spoken to his solicitor and told him that he wanted the judge hearing the "leave application" to be told that it had been wrong to assume that he had ejaculated "inside B.W.". He was "under the impression" that the matter would be raised on the "leave application". He was not present, but later discovered that it had not been raised.

40. Mr. Boyce foreshadowed that if the Court was prepared to accept the affidavit, he would seek leave to amend the grounds of the application to include a ground (5) that there had been a miscarriage of justice in that the judge had imposed sentence upon incorrect assumptions of fact. Mr. Elston, who appeared for the respondent in this Court, did not oppose the receipt of the affidavit material; nor the amendment of the grounds of application to include the proposed ground (5).

43. Having listened carefully to the arguments addressed on both sides of this application, I am satisfied that the exercise of his Honour's discretion has been infected by error; albeit - at least in one instance - an error not of his making. It is apparent from the structure of his sentences that his Honour regarded the penetrations which had occurred during the "sordid weekend" of 1 to 3 March as substantially more serious than the penetrations which were the subject of count 1. His Honour's reasons for imposing the sentences which he did are brief, to the point of being un-enlightening. However, it is tolerably clear that - apart from the breach of trust which accompanied the weekend events - his Honour regarded as influential in imposing sentences of three years for those events (as distinct from the two years imposed for the penetrations represented in count 1):

(i) the fact that, during the weekend events, the applicant had "ejaculated inside" B.W.; and

(ii) the fact that the applicant was not genuinely remorseful in respect of those events.

As I have said, the error in respect of the sentencing fact to which I have referred in (i) was no fault of his Honour; nor was it available to influence the single judge of this Court on the application for leave. However, I am prepared to accept the matters which have been deposed to in the applicant's affidavit. He has been full and frank in his admissions and concessions throughout the investigation of this affair. His frankness to the police in his Record of Interview is, I think, eloquent testimony to his truthfulness. In his answers he frankly conceded that during the sexual intercourse which he had had with B.W. during the night at the beach house, he had ejaculated on the one occasion but not on the other. These answers were ambiguous, but clearly took on a different "hue" during the course of the plea, when it became apparent that his Honour regarded the fact of ejaculating "inside B.W." as a dishonourable act bearing upon the applicant's moral culpability. To this extent, and in the light of the facts which I am now prepared to accept, his Honour's views were founded upon an incorrect appreciation of the true facts. Although it is not entirely clear what effect these false assumptions have had on the exercise of his Honour's sentencing discretion, it is - as I have earlier said - tolerably clear that they have played an influential part in producing the sentences imposed on counts 2, 3 and 4. I have reached that conclusion because of his Honour's concentration on the point during the plea hearing; and the reference which he made to it in his sentencing remarks.

49. Furthermore, it seems to me that his Honour was in error in concluding that he was "not satisfied that you [that is, the applicant] have expressed genuine moral contrition". This finding appears to have been based upon a psychological report by one Christopher Grace dated April 2003 which had been tendered to his Honour by counsel for the applicant. His Honour referred to a passage in that report which is in the following form:

"Jason had tended to minimise his behaviour by suggesting that the girl, by her actions, was some how to blame for causing him to have sex with her. In sessions, Jason has come to understand that his actions have amounted to a gross breach of trust with detrimental consequences and far reaching negative impacts on his ex-girlfriend and relatives of all those involved."

This paragraph in the report appears to me to have been little more than an historical fact leading up to the psychologist's final conclusion, which was in the following terms:

"Jason has said from the outset that it is wrong to have sexual encounters with a person under the age of 16 years. In sessions, Jason has accepted greater responsibility for his actions by acknowledging that he was minimising his behaviour by ascribing motives to the girl's actions. He has also expressed remorse for taking advantage of this young adolescent girl and rupturing a fundamental trust in men for this young girl, his ex-girlfriend, relatives, and the community in general who had afforded a great deal of respect to him and the role he was performing in the surf club."

In short, the thrust of the report was that, by the end of the counselling sessions, the applicant had come to recognize the enormity of what he had done, and was remorseful for it. Indeed that fact seems to have been reflected in the expressions of regret that he had made to B.W.'s parents and the statements which he had made to the police during the course of his interview. The remorse which had been demonstrated by the offender at the time of sentence is the factor which is relevant to the sentencing process. There is little doubt that, at the time he stood for sentence, the applicant was extremely remorseful for his conduct - a fact that was amplified by the considerable amount of character evidence which was given to his Honour on the plea.

57. For the reasons which I have given, it is my view that the sentencing discretion has miscarried; and that the sentences which the judge imposed ought to he set aside. In lieu thereof, I would impose sentences of two years on each of the four counts preferred against the applicant. I would cumulate four months of the sentence imposed on each of counts 3 and 4 upon each other and upon the sentence imposed on count 2. I would do so to reflect the fact that, in respect of counts 3 and 4, the applicant is being sentenced as a serious sexual offender. The total effective sentence is therefore two years and eight months. I would direct that the applicant serve 15 months of that sentence before becoming eligible for parole. I would fix that minimum sentence to maintain the ratio between head sentence and minimum term fixed by the sentencing judge, and to reflect the fact that the applicant has never before committed a criminal offence, has never before served a term of imprisonment, and is a person of otherwise good character. Pursuant to s.6F of the Sentencing Act 1991 I would cause to be entered in the records of this Court the fact that, in respect of the sentences imposed on counts 3 and 4, the applicant has been sentenced as a serious sexual offender.

61. For the reasons stated by the President I agree that this appeal should be

allowed. I further agree with the re-sentencing proposed by his Honour.

65. I also subscribe to the comments of Bongiorno, A.J.A.

69. I have had the benefit of reading the judgment of the President in this case. I concur in the result which his Honour has reached.

72. I accept, for the reasons advanced by the President, that the sentencing judge was in error, through no fault of his, in reaching the conclusion that the applicant had ejaculated inside B.W. on one occasion during penile vaginal penetration. This finding clearly exacerbated the moral culpability of the applicant in the mind of the sentencing judge. Although not enunciated in his Honour's reasons, it might be inferred that he took the view that the ejaculation inside the victim demonstrated a disregard for her welfare over and above that necessarily implied from the commission of the offence itself. It demonstrates a disregard for the risk of pregnancy and perhaps other adverse consequences for her health and wellbeing. On this basis the heavier sentence imposed by the sentencing judge can be readily understood. The undisputed fact that the applicant had unprotected intercourse with B.W. should perhaps have been expressed by his Honour as bearing upon the applicant's moral culpability.

75. The care and concern for B.W. exhibited by the applicant in saying "they would both have to be 110% sure" before going "all the way" was put as a matter to the applicant's credit. But the disregard for the wellbeing of B.W. inherent in the act of exposing her to a risk of pregnancy and/or disease must be weighed against any benefit to which he is entitled as a result of his expression of concern. The applicant's having ejaculated on the bed, as is now accepted by this Court to have been the fact, must have somewhat reduced the risk to B.W. but it certainly did not eliminate it. The applicant's embarking upon a course of action involving, inter alia,

premeditated sexual intercourse with a child under 16 was a serious offence. Doing so without taking any realistic precautions must put an even more serious complexion on his moral culpability for such an offence.

79. Notwithstanding these comments, the sentencing discretion in this Court having been enlivened by the factual error made by the sentencing judge, I consider, for the reasons expressed by the President, that the sentence now proposed by him is appropriate, particularly having regard to the applicant's previous good character and his excellent prospects of rehabilitation.

[1] See R.v. Nguyen [2001] VSCA 139; (2001) 124 A.Crim.R. 477.