R v Crozier [2005] VSCA 188

1 I will call on Vincent, J.A. to give the first judgment.

2 The appellant, Richard Ivan Crozier, pleaded guilty in the County Court, at Melbourne, to four counts of the commission of an indecent act with a child under the age of 16 years (counts 1, 2, 7 and 8), two counts of incest (counts 3 and 4), seven counts of the sexual penetration of a child under the age of 16 years (counts 5, 6, 9, 10, 11, 12 and 13), two counts of being a non-prohibited person in possession of an unregistered firearm (counts 14 and 15) and two summary charges, namely, the possession of a firearm (Charge 20) and the possession of ammunition (Charge 21).

3 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 4 November 2004, imposed the following sentences of imprisonment for these offences:

Count 1 - 6 months;

Count 2 - 9 months;

Count 3 - 4 years;

Count 4 - 5 years;

Count 5 - 3 years and 6 months;

Count 6 - 3 years;

Count 7 - 2 years;

Count 8 - 3 months;

Count 9 - 3 years;

Count 10 - 3 years and 6 months;

Count 11 - 4 years and 6 months;

Count 12 - 6 years;

Count 13 - 5 years;

Count 14 - 6 months;

Count 15 - 6 months; and

Charge 20 - 2 months.

Her Honour directed that one year of the sentence imposed on count 4 and 6 months of the sentence imposed on each of counts 5, 10, 11 and 13 be served cumulatively upon each other and upon the sentence imposed on count 12. This created a total effective sentence of 9 years' imprisonment, in respect of which she fixed a non-parole period of 7 years and 6 months. On the remaining summary charge (Charge 21) her Honour imposed a fine of $150. She directed that it be noted in the records of the court that the offences encompassed by counts 1, 2, 7 and 8 were Class 2 registrable offences under the Sexual Offenders Registration Act and that the offences encompassed by counts 3, 4, 5, 6, 9, 10, 11, 12 and 13 were Class 1 registrable offences under that Act. She also directed that it be noted in the records that, in respect of counts 3 to 13, the appellant had been sentenced as a serious sexual offender. Her Honour made further orders with respect to the obtaining of a forensic sample and the forfeiture of the firearms and ammunition.

4 Having been granted leave to do so, the appellant seeks to overturn those sentences on two grounds:

"1. that the head sentence, the non-parole period and the individual sentences are manifestly excessive; and

2. that the learned sentencing judge erred in fixing the non-parole period."

5 However, at the commencement of the hearing this morning, Mr McArdle, who appears on behalf of the Crown, indicated that it was conceded that the non-parole period fixed by the sentencing judge was unusually high, and that why this was so was unexplained in her sentencing remarks. He accepted that the position could not be distinguished for relevant purposes from that considered by the Court in R. v. VZ[1], and that accordingly the sentencing discretion should be regarded as re-opened. The matter has therefore proceeded on that basis.

6 I now turn to the circumstances surrounding the commission of the appellant's offences. One afternoon during the Christmas school holiday period of 1997-1998, the appellant was at home with his 12-year-old daughter "A" while the child's mother was absent shopping. The appellant told "A" that he wanted to speak to her in his bedroom. On entering the bedroom, he placed her on a bed and told her to remove her pants. When she did so, he stroked her vagina and surrounding areas with the fingers of one or both hands (count 1).

7 During an afternoon of the Christmas 1997-1998 holiday period, the child was again home alone with the appellant and he again told her that he needed to speak to her in his bedroom. Once more he placed her on his bed and told her to remove her pants. He said that she would "enjoy this one day" and that she would "want a boy to do it to her". As she lay back, he positioned himself between her legs and licked her vagina. She requested him to stop, but he responded that she would enjoy it, and continued. As he walked out of the room following this incident, "A" told him that she would inform her mother about what had occurred. He replied that if she did that he would not be able to drive her to netball or to do anything for her (count 2).

8 Shortly after the 13th birthday of "A" on 30 June 1998, when she was at home alone with the appellant, he repeated his request to speak to her in his bedroom. On this occasion, he inserted his fingers into her vagina and moved them about. She stated that he digitally penetrated her in the same general fashion and circumstances on at least two further occasions between 30 June and 31 December 1998 (count 3 - this is a representative count.)

9 On an afternoon during the Christmas holiday period of 1998, the appellant called "A" into his bedroom. He asked her whether she was having her period and she informed him that it had just finished. He told her to remove her clothes and to kneel on the floor with her face towards the bed. He then inserted his penis into her vagina. He pushed her head down on to the bed whilst holding her shoulders. She started to cry and asked him to stop. However, he did not do so. When he withdrew his penis, he told her to clean herself. She subsequently sat on the bed crying before she went and had a shower. On the following day, her vagina was sore and bleeding (count 4).

10 "R" (a friend of "A's" sister) played in a netball team coached by the appellant. In May 2002, "R" was staying overnight at the appellant's home. She was asleep on the couch after everyone had gone to bed, except the appellant, who was sitting on the same couch watching television. She woke when she felt the appellant's hand inside her pants. He proceeded to penetrate her vagina with his finger, causing her some pain. Two weeks later, a similar incident occurred when she was sleeping on the couch (count 5 - this count is also a representative count).

11 On a day in the winter of 2002, the appellant was driving "R" home from netball training when he pulled his vehicle over and commenced to kiss her on the neck, lips and cheek. She responded by kissing him. He then moved to the back seat and requested her to get into the back seat with him. He unzipped his trousers and asked "R" to give him "a head job". He inserted his penis into her mouth and forced her head up and down with his hands. He did not ejaculate. After this incident, he dressed and drove her home (count 6).

12 "R" recalled that during the winter of 2002, the appellant drove her from his house a number of times. On such occasions he sometimes pulled his vehicle to the side of the road and "R" and he would get into the back seat and kiss. He would lift "R's" top, undo her bra and suck on her breasts. This occurred on approximately 30 occasions (count 7 - a representative count.)

13 During the same period, when the appellant was driving "R" home he commenced kissing her before undoing her bra and kissing her chest and sucking her breasts (count 8). He pulled her pants down to her ankles, laid her down and placed his tongue inside her vagina (count 9). He then proceeded to kiss her, undid his pants and placed "R" on his lap facing him. He then put his erect penis inside her vagina. He placed his hands on her sides and moved her up and down. "R", who was a virgin prior to this incident, found it uncomfortable and a source of pain (count 10).

14 "R" stayed overnight at the appellant's home on a Saturday night soon after her 14th birthday. On the following morning, the appellant's wife and "A" left the house, leaving the appellant and "R" alone. The appellant woke "R" and told her to go to a downstairs toilet that was connected as an en suite to his bedroom. He then took her into the bedroom and told her to undress. She did not want to do this, but complied with his request. He then told her to sit on the edge of the bed. He spread her legs and placed his penis inside her vagina, causing her immense pain. He proceeded to thrust his penis in and out of the young girl for approximately five minutes. This caused "R" to bleed, and he subsequently drove her to pick up his wife and daughter. Whilst in the car, he asked "R" if she was all right and whether he had hurt her. She told him that it had really hurt (count 11 - this is a representative count).

15 "R" stayed overnight at the appellant's home approximately three weeks after this incident. During one afternoon he again told her to undress in the en suite toilet and then took her into the bedroom. He told her that he wanted to try something different, as it had hurt her so much on the previous occasion. He then asked "R" to get on all fours on the bed and proceeded to penetrate her vagina from behind. "R" again stayed on another Saturday night after her birthday. On this occasion the appellant told "R" to go to the kitchen. She complied and whilst there he pulled down her boxer shorts and underwear to her ankles and lifted her on to the kitchen bench. He then unzipped his own pants and pulled her towards him while she was on the edge of the bench. He placed his penis in her vagina and thrust it in and out progressively for about five minutes. Between this occasion and the following Christmas the appellant placed his penis in "R's" vagina while she was on the kitchen bench about four or five times (count 12 - a representative count).

16 After netball training on a week night in February 2003, the appellant drove "R" to his home and then to the netball club rooms, which he opened with his key. He ensured that all the curtains and blinds to the premises were closed and told "R" that he wanted to have sex with her again. He proceeded to kiss her on the mouth and told her to lie down. He undressed and removed her clothing. He lay on top of the young girl and placed his penis inside her vagina. She told him that it hurt, so he told her to get on to all fours and he penetrated her from behind. She asked him to stop, and said that it hurt. He withdrew his penis after she had twice made this request. They dressed and the appellant drove her home. This occurrence was repeated soon afterwards (count 13 - a representative count).

17 On 4 February 2004, the police executed a search warrant on the appellant's premises and seized his computer equipment, which was found to contain e-mail messages that had been sent between the appellant and "R". They also found a single-barrel shotgun and a Marlin .22 calibre rifle (counts 14 and 15). These firearms were stored in the ceiling of the house in breach of the Firearms Regulations (Charge 20). They also located ammunition in the form of a number of shotgun cartridges (Charge 21). The appellant was interviewed by police, on 4 February 2004, and admitted that he had offended in the fashion that I have outlined, although he was unable to remember all of the specific details.

18 In support of the initial contention made, that the individual sentences imposed upon the appellant were manifestly excessive in the circumstances, the attention of the Court was drawn, in written submissions filed on the appellant's behalf, to a number of factors which, it was asserted, militated powerfully in favour of mitigation of penalty. I have had regard to those matters and to a number of other considerations which might be perceived as operating in mitigation of penalty, which emerged from the plea and from the judge's sentencing remarks. The specific matters to which our attention has been drawn include:

1. The making of full and frank admissions to the police in relation to the appellant's offending. This, it was said, was particularly significant with respect to the offences committed against "R", as his admissions preceded the making of any complaint by her;

2. The entry by the appellant, at an early stage, of pleas of guilty to these various offences;

3. The expression by him of genuine remorse for his conduct;

4. The voluntary undertaking by the appellant of treatment through a psychologist and participation in the adult sex offender program whilst in custody;

5. The appellant's good prospects of rehabilitation and, correspondingly, the low risk that he would re-offend; and

6. The absence of any prior convictions and the appellant's history of significant community service.

19 It is to be noted that all of these matters were the subject of specific reference by the sentencing judge and were taken into account by her. They were indeed, and must be, given appropriate weight. Nevertheless, as her Honour remarked, the conduct of the appellant was wanton and predatory. He committed 15 separate crimes, on separate dates, against two victims, over each of whom he possessed a measure of authority, and in relation to each of whom he repeatedly breached the trust reposed in him. Some of the offences were the subject of representative counts. What that means, in effect, is that the culpability and criminality involved in their commission is to be assessed against a background of other abuse in which the appellant had engaged. Each of the victims was subjected to repeated acts of abuse, and it is hardly surprising that each has sustained the physical and emotional distress evident in their victim impact statements.

20 There is no need to set out in this judgment any of the numerous powerful expressions by judges of this Court of the seriousness and disgust with which the conduct of the kind in which the appellant engaged is viewed. Nor is there any need to repeat the values and reasons underlying the adoption of this approach, which I would suggest are obvious. All that need be stated is that perpetrators who engage in this type of offending must anticipate the imposition of substantial terms of imprisonment.

21 Having considered the matters raised in this appeal, I am far from persuaded that any of the individual sentences imposed on the appellant, the orders for cumulation or the total effective sentence handed down in the court below were inappropriate in the circumstances, and I would propose that they be re-imposed.

22 A somewhat different position exists, however, with respect to the non-parole period. A non-parole period of 7 years and 6 months in relation to a total effective sentence of 9 years, without any explanation or the presence of circumstances which would justify such a limited opportunity for release on parole, is the subject of legitimate concern, in my view. I have already referred to a number of matters which might have been expected to result in the fixing of a lower non-parole period in this case. In view of the matters in mitigation to which I have earlier referred, I would propose that a non-parole period of six years be fixed. Otherwise I would re-impose the individual sentences and the orders for cumulation, and thereby create the same effective sentence. I would also make the same declarations that her Honour made with respect to the nature of the offences under the Sexual Offenders Registration Act, that the appellant had been sentenced as a serious sexual offender on the respective counts 3 to 13, and I would re-impose the orders with respect to the obtaining of a forensic sample and the forfeiture of the firearms and ammunition.

25 The appeal is allowed.

The Court sets aside the non-parole period fixed on 4 November 2004, re-imposing each of the individual sentences, orders for cumulation and total effective sentence of 9 years' imprisonment, and making the same declarations and orders as were made on 4 November 2004.

In lieu of the previous non-parole period fixed, the Court fixes a new non-parole period of 6 years.

The Court declares that, as at this day, the period of 295 days be reckoned as already served under the sentence and directs that the fact of the making of this declaration and its details be noted in the records of the Court.

[1] [1998] VSCA 32; (1998) 7 V.R. 693.