R v CVP [2002] VSCA 193

7. I agree for the reasons advanced by Eames, J.A.

12. This is an appeal against sentence imposed by a judge of the County Court, sitting at Shepparton, on 21 December 2001. The appellant was sentenced upon his pleas of guilty with respect to a range of sexual offences committed against his two daughters. The first of the offences was alleged to have occurred between 1 June 1986 and 31 January 1988 and the last of the offences was alleged to have occurred between 1 January 1991 and 14 February 1991.

15. The nineteen counts on the presentment derived from the terms of the Crimes (Sexual Offences) Act 1980 which, by s.5, incorporated the relevant provisions into Division 1 of Part 1 of the Crimes Act 1958 ("the Act"). There were four counts of sexual penetration of a child under the age of 10 years, contrary to s.47 of the Act, 13 counts of indecent assault, contrary to s.44(1) of the Act, and two counts of incest, contrary to s.52(1) of the Act.

18. At the time of the offences the maximum penalty under s.47 was 20 years' imprisonment, five years' imprisonment under s.44(1) and 20 years' imprisonment under s.52(1).

21. The appellant admitted 14 convictions for dishonesty offences, driving offences and assault offences arising out of 5 court appearances between 1973 and 1989.

24. On the 19 counts the learned sentencing judge imposed the following sentences, as recorded in the Return of Prisoner Convicted.

27. The sentence on count 1 constituted the base sentence for purposes of orders as to cumulation. That count was an offence of sexual penetration of a child under 10 years, for which offence a sentence of 6 years was imposed. Counts 3, 5 and 10 were similar offences and on each count a sentence of 6 years was imposed and as to the sentences on each of those three counts a period of 12 months imprisonment was ordered to be served cumulatively with the sentence on count 1[4].

30. The sentence on count 2, a count of indecent assault, was eighteen months imprisonment and was ordered to be served wholly concurrently with the sentence on count 1. The sentences of eighteen months on counts 6 and 7 for indecent assault were ordered to be served wholly concurrently with the sentence on count 1[5]. For each of the remaining counts of indecent assault (counts 4, 8, 9, 11, 12, 13, 14, 16, 17, and 19) a sentence of 18 months' imprisonment was imposed and as to each such sentence a period of one month was ordered to be served cumulatively with the sentence on count 1.

33. On both of the counts of incest (counts 15 and 18) a sentence of 6 years was imposed, with 12 months to be cumulative on the sentence on count 1.

36. The sentences and the orders as to cumulation resulted in a total effective sentence of 11 years and 10 months' imprisonment and her Honour directed that the appellant serve a minimum term of imprisonment of 9 years and 9 months before becoming eligible for parole. Her Honour made a declaration under the Sentencing Act 1991 with respect to 4 days' custody prior to sentencing and pursuant to s.6F of the Sentencing Act declared that with respect to counts 4 to 19 the appellant was

sentenced as a "serious offender".[6] An order was made under s.464ZF for the provision of a saliva sample.

40. On 7 June 2002 a judge of this Court granted leave to appeal against sentence and at the time of so doing noted that counsel for the appellant (who was not counsel who appeared before her Honour) had advised the appellant's intention to apply to amend the grounds of appeal in order to add three additional grounds, which his Honour set out. His Honour said in his reasons that that amendment to the grounds of appeal should be sought promptly and noted that counsel had advised that would be done. Notwithstanding that advice, it was not until 23 October 2002 that the appellant applied to amend the grounds of appeal by adding grounds 7 to 9. Counsel could offer no explanation for the delay by his solicitor in applying for amendment of the grounds of appeal. The six grounds of appeal and the three additional grounds on which leave is sought are as follows:

"1. The sentencing judge erred in that she failed to give any, or any sufficient, weight to the applicant's pleas of guilty. 2. The sentencing judge erred in that she failed to give any, or any sufficient, weight to the lack of relevant criminal history. 3. The sentencing judge erred in that she failed to give sufficient weight to the delay between the commission of the offences, the disclosure of the matters to Victoria Police and the subsequent prosecution initiated by the making of a statement to New South Wales Police. 4. The sentencing judge erred in that she failed to give any, or any sufficient, weight to factors personal to the applicant and, in particular, to the applicant's rehabilitation. 5. The sentencing judge erred in that she gave too much weight to the principle of general deterrence. 6. In all the circumstances the overall sentence passed is manifestly excessive and crushing. 7. The learned sentencing judge held that aggravating features included the very tender ages of the children, the lack of intellectual disability on the part of the appellant, secrecy and the appellant's understanding of the consequences of his actions. 8. The sentencing judge erred in that she imposed cumulation and ordered concurrency inconsistently. 9. The learned sentencing judge erred in that she imposed total sentences in relation to each complainant that were significantly different although the agreed facts in each case were similar."

44. The appellant and his wife had three children, one of whom was a son. The offences were committed against the two daughters of the appellant. The elder daughter, whom I will call "N" was born on 15 February 1978 and the abuse against her commenced when she was aged 4 or 5 years and when they were living in New South Wales. Those offences were not part of the presentment but her Honour noted them only for the purposes of giving a history, which was not disputed. The offences against the younger daughter, whom I will call "K", commenced when she was about 6 years of age. She was born on 9 September 1981. Although the behaviour against the children continued until its exposure in 1993 her Honour noted that the Crown, for reasons which were not explained, only charged the appellant with offences with respect to conduct up to 1 January 1991.

47. At the time of sentencing the appellant was aged 47 years, having been born on 6 July 1954, and, as her Honour noted, the period of the offences was at a time when the appellant was aged between 32 and 37 years.

50. Counts 1 and 2 relate to offences against the child "N" and occurred, on the same occasion, in a shed at the home in Shepparton. The child was of an age somewhere between 8 and 10 years. The appellant pushed the child's head on to his penis and forced her to suck his penis and he then licked the child's vagina.

53. Counts 3 and 4, which took place on the same day, occurred on a later occasion to counts 1 and 2. They were committed in the same house as counts 1 and 2. Count 3 involved requiring the child "N" to watch pornographic movies and to suck the appellant's penis.

56. Count 4 arose in the bathroom when the appellant placed his fingers into the child's vagina.

59. Counts 5, 6 and 7 occurred in the appellant's bedroom when the child was forced to suck the appellant's penis. The appellant then sucked her vagina and placed his fingers in her vagina.

62. When the child "N" was about 10 the family moved to another address in Shepparton and on those premises count 14 arose. The appellant placed his fingers into the child's vagina.

65. Counts 15 and 16 occurred in the appellant's bedroom when he required the child "N" to suck his penis and he sucked her vagina. The child was aged between about 10 and 12 years.

68. Counts 18 and 19 occurred when the family had moved to Numurkah, just before the child "N" turned 13. The child was taken into a garden shed and required to suck the penis of the appellant, who then sucked her vagina.

71. When the child "N" was of about age 13, and had commenced menstruating, the appellant stopped forcing her to perform these acts.

74. With respect to the child "K" the offences were said to be representative counts because the child could not recall specific incidents at specific times. The conduct against her commenced when she was aged 6 and the offences from counts 8 to 13, inclusive, occurred over a period when she was aged between 6 and 9 years.

77. Count 8 related to the appellant rubbing "K"s vagina. Count 9 involved the insertion of his fingers into her vagina. Count 10 was placing his penis in her mouth and forcing her to suck it. Count 11 involved holding her hand and forcing her to masturbate him. Count 12 involved him licking her vagina and count 13 to ejaculating on her face. Count 17 relates to indecent assaults against the child when she was aged about 8 and when she was sitting on the appellant's knee in the family lounge-room. Under the cover of a blanket, and notwithstanding the fact that other members of the family were present, the appellant inserted his fingers into the vagina of the child.

80. In 1993 the conduct of the appellant towards his daughters was exposed after a heated argument occurred between him and the elder daughter. The two girls, who until then had each thought they were the only child to have been a victim of such conduct from their father, told their mother what had been occurring. The appellant's wife ordered him out of the home and the allegations were reported to the Shepparton Community Policing Squad. Officers of the Department of Health and Community Services visited the home and interviewed the daughters. It seems that the appellant was not himself interviewed by police at that time. The complainants and their mother told police that they did not want police action taken concerning the allegations, and nothing further was done by relevant authorities. For several years thereafter the three children and their mother moved together from place to place in Australia and then moved to New Zealand, where they resided for three years. In September 1999, after returning to Australia, the daughters (who were then aged 21 and 18 years respectively) decided to reactivate their complaints, and reported the appellant's conduct to New South Wales police. It is not clear what triggered the decision to take action at that time, but it was not provoked by any misbehaviour or threat from the appellant.

83. Although new investigations into the allegations commenced in September 1999 the appellant was not interviewed until 5 January 2001. He was then living in Darwin. The appellant admitted the allegations made against him.

86. The primary complaint on appeal was that raised by ground 6, namely that the sentence was manifestly excessive. Although quite discrete errors in the sentencing discretion have been alleged by Mr Cosgriff, most of the grounds of appeal amount to particulars of the general complaint of manifest excess. Two primary factors are identified as explaining why the sentences were manifestly excessive. Mr Cosgriff submitted that her Honour failed to give adequate weight to the pleas of guilty, and failed to give adequate weight to the factor of delay. Although counsel contended that the individual sentences were severe, it was the impact of the orders as to cumulation upon the total effective sentence and the non-parole period which was the main focus of complaint.

89. Whilst the appellant's pleas of guilty of themselves entitled him to credit as reflecting remorse, there were a number of additional factors which demonstrated that the appellant's remorse was genuine, and was not merely invoked for the purpose of obtaining a more lenient sentence. The admission of guilt during the police interview in 2001 had been preceded by letters sent by the appellant to his daughters years before the New South Wales police investigation commenced in 1999. In those letters he not only expressed a profound sense of guilt for his conduct and for the impact of it on their lives, but he encouraged his daughters to seek counselling about any matters which troubled them concerning his abusive conduct. At the time when he wrote those letters no police investigation was being pursued against the appellant.

92. A further factor which reflected remorse was the appellant's willingness to accept and admit the allegations without requiring them to be particularised. In the case of "N" the complainant was able to particularise a number of incidents so that specific charges could be laid, but the child "K" was unable to do likewise, and in her case all of the counts were agreed to be representative counts, representing the type of conduct which occurred to her during the period of the appellant's abuse. However, as her Honour noted, even in the case of "N" the complainant was unable to provide particulars of all of the conduct to which she was subjected. As counsel for the appellant pointed out, in those circumstances the appellant, through his lawyers, might well have argued that it was appropriate that he be asked to plead guilty to a lesser number of charges than that to which he did plead guilty. It was not disputed that the appellant had adopted a compliant position with respect to the charges and did not oblige the prosecutors to press his daughters for more detail on charges to which he was prepared to plead guilty. The attitude adopted by the appellant meant that no committal was necessary and the complainants did not give evidence at any time.

95. In her sentencing remarks her Honour said she took into account the pleas of guilty, and the fact that the appellant intimated at an early stage that he would so plead. Her Honour said that she accepted that the pleas of guilty reflected true remorse on the part of the appellant, and that the letters to his daughters also reflected true remorse. Mr Cosgriff submitted that, notwithstanding those words, having regard to the total effective sentence and non-parole period her Honour could not have given appropriate weight to the pleas of guilty in this case.

98. Mr Cosgriff submitted that her Honour also failed to give adequate weight to the factor of delay. In this case the complainants' allegations were made to police and welfare authorities in November 1993 but upon the complainants and their mother stating that they did not want to have the complaints taken further the matter was not pursued until the complainants re-activated their complaints in September 1999. Even then, there was significant delay in prosecuting the appellant, who was first interviewed by police in January 2001. Unlike the situation in many cases where there was significant delay in bringing proceedings the delay in this case was not primarily due to delay in the making of complaints.

101. Her Honour said that she took into account the fact that there had been significant delay in bringing the matters to court, and that the appellant was not the cause of the delay. Her Honour accepted that for eight years the appellant had lived with the prospect hanging over his head that he might be charged at any time. Mr Cosgriff submitted that that factor, although acknowledged, was given insufficient weight by her Honour.

104. Delay was relevant in other ways, too. In particular, delay meant that the appellant's prospects of rehabilitation could be examined against the backdrop of eight years non-offending. Her Honour did, in part, have regard to that factor, as attested by her statement that she had not sentenced the appellant on the basis that he was a continuing threat to the general public, and her finding that his paedophilia was restricted to his own daughters. However, apart from mentioning that rehabilitation was an important consideration in sentencing, her Honour made no further reference to that question. The tenor of the sentencing remarks suggests that her Honour must have regarded the prospects of rehabilitation as poor, even though she concluded that the appellant presented a low risk of offending against children other than his own.

107. Ground 9 complained that her Honour had produced very different effective total sentences with respect to the sentences concerning "N" as opposed to those concerning "K". Mr Cosgriff acknowledged that the offences against "N" occurred over a period which was two years longer than that of the abuse of her sister, and, therefore, one would expect the different time-frames to be reflected in sentence. He submitted, however, that, the nature of the offending was not significantly different as to each child. Whilst there were seven counts concerning "K" and twelve concerning "N", the frequency of offending was much the same for both of them, although in the case of "N" continuing over a longer period. Despite the similarity in the offending conduct the twelve sentences concerning "N" produced a total effective sentence of 10 years and 4 months whereas the seven offences against "K" produced a total effective sentence of 6 years and 6 months.

110. Mr Cosgriff submitted that the significant differences in the total effective sentences imposed with respect to each child is unexplained. The fact that the charges concerning "K" were representative counts could not provide the explanation, he submitted. That was so because the fact that they were agreed representative counts did not entitle the judge to increase sentence by reference to uncharged offences. The relevance of the counts being representative ones in the present context was primarily that the judge was entitled to treat the agreed representative counts concerning "K" as precluding a contention that the offences were isolated ones, and was also entitled to have regard to the impact upon the complainant of the offending conduct generally, without being obliged to relate the emotional consequences for the complainant to the events identified by the specific charges[7].

113. Although it was contended that the difference in the respective individual sentences with respect to each child, as a component of the total effective sentence, reflects error in the sentencing discretion, not only was there a longer period of offending in the case of "N" there were also some differences in the nature of the offending conduct. Five counts of a penetration offence, or incest, were alleged with respect to "N" and only one such offence in the case of "K". It may, of course, be merely fortuitous that because "N" could recall details as to five such offences, that five counts were alleged, whereas only one representative count concerning such conduct was brought with respect to "K". There may well have been more than one instance of an offence involving penetration with respect to "K", but it was not expressly agreed that that was the case. Precisely what frequency of conduct involving penetration was intended to be embraced by the one representative count concerning "K" was never made clear. The judge was entitled to have concluded, therefore, that the extent of such acts against "K" was less than was the case for "N", and I am not persuaded that error has been shown merely by reference to the different effective sentences imposed as to each child. I do not believe that ground 9 has been made out.

116. An additional discrete complaint was that identified by ground 8. In her remarks on sentence her Honour said that she intended to order that one year of every sentence involving an offence of sexual penetration would be made cumulative on other sentences and that one month of each sentence for indecent assault would be ordered to be served cumulatively. Her Honour added the rider, however, that she would order cumulation of one month of sentences for counts of indecent assault "except for those I find were part and parcel of the sexual penetration". Mr Cosgriff noted that her Honour made orders as to cumulation for four of the seven counts of indecent assault concerning "N" and on all of the six counts concerning "K". He submitted that in some instances orders were made for cumulation when the acts of indecent assault really were part and parcel of an event of sexual penetration. Counsel submitted that the sentences on counts 15 and 16 should have been wholly concurrent, so too on counts 18 and 19, and on all of the sentences on counts 8 to 13, if her Honour's expressed intention was to be reflected in the sentences.

119. Given the vagueness of the statements of the complainants as to times when offences occurred, and the similarity of the conduct of the appellant towards them on numerous occasions over many years, it was and is a difficult task to determine whether with respect to individual counts which alleged conduct on the same day any act of indecent assault should be regarded as a discrete offence or as an offence occurring as part and parcel of an act of penetration. Her Honour endeavoured to conduct that analysis, and I am not persuaded that the conclusions she reached as to this issue were wrong. I do not consider that ground 8 has been made out.

122. Ground 7 raised other discrete complaints of error, by reference to comments made by her Honour in one part of her remarks on sentence. Having discussed the impact of the conduct on the complainants, as disclosed in the Victim Impact Statements, her Honour said:

"Accordingly I find that your conduct over a very lengthy period of time was sickening and depraved with not one mitigatory aspect in respect of your actual conduct over the five year period for which I am sentencing you. The aggravating aspects include the gross breach of trust involved, the very tender years of the children as they were then and the suffering that they endured. You are not a person who is intellectually handicapped. It was behaviour that you ensured was hidden from your wife and anyone in authority and accordingly you clearly understood the probable consequences of your actions."

Little argument was addressed to us as to this ground. Mr Cosgriff dealt with only one aspect of the ground, by his submission that it was, in effect, double punishment for her Honour to have regarded what she described as "the very tender years of the children" as being an aggravating factor for sentencing. Given that the age of the children is an element of every one of the offences then they are, by definition, offences against children of tender years, so it was submitted, and it cannot aggravate the offence to highlight that very fact. Whilst I initially thought there was some force in this contention by Mr Cosgriff, I am not persuaded that this ground is made out.

127. The offence of indecent assault required that the victim be a child under 16 years. The offence of penetration required that the child be under the age of 10 years. In this case the first offences of sexual penetration and indecent assault in the presentment concerning "N" arose when she was aged between 8 and 10 years. The first offences against "K" arose when she was between the ages of 6 and 9 years. Certainly, with respect to the indecent assault offences it would be quite appropriate to have regard to the very young age of the children when such acts first occurred. However, given that many of the acts of penetration occurred when the girls were closer to the age of 10 - that being the upper age limit constituting the offence - it would be inappropriate to increase sentence on account of their age when their age already constituted an element of the offence. Even so, in the sentence in which her Honour spoke of the tender years of the children (and even if she was not just referring to the indecent assaults) she may well have had in mind the age when the first penetration offences occurred, rather than the later offences. That would explain why her Honour spoke of the "very" tender years.

130. As I later discuss, I have concluded that the sentences, overall, were manifestly excessive, and it is unnecessary to finally determine whether her Honour's remark as to the tender years of the children, of itself, manifested sentencing error. If that was a discrete error then its identification added nothing to the conclusion which I have otherwise reached as to the outcome of this appeal. It is to be borne in mind that the severity of the maximum penalty for such penetration and incest offences against children related to the tender years of the victims, and the individual sentences were bound to be severe.

133. As to the other matters addressed by ground 7, her Honour's sentencing remarks were quite long and involved matters of considerable breadth and complexity. It seems to me to be unreasonable to require that they be delivered with the precision of a parliamentary draftsperson. I can see no error in her Honour's observation about the appellant engaging in secrecy to hide his conduct from his wife, nor about the absence of any intellectual disability on his part and his understanding of the probable consequences of his conduct. As to the last point, her Honour was entitled to make the finding of fact that the appellant knew at the time of the probable consequences of his conduct. Having so found, it was an aggravating factor because it demonstrated that the appellant had an insight into the seriousness of his conduct, and therefore reflected upon his level of culpability. The reference to the understanding of the probable consequences of his actions may well have been a reference to the appellant's contention that he had himself been a victim of sexual abuse as a child. In an open letter to his daughters, which was tendered by his counsel, the appellant attributed his offences, in part, to that early abuse which he said he had suffered. Her Honour was entitled, therefore, to conclude that he was aware of the probable consequences of childhood sexual abuse. The fact that the offender kept matters secret from his wife would not be an aggravating factor but, in my view, it is probable that what her Honour was concerned with was the fact that he enlisted the children to support his secrecy and that he committed some of the offences, with stealth, in the same room in which his wife was present, but unaware of his conduct.

139. Having concluded that the discrete errors identified by counsel in grounds 7, 8 and 9 either did not occur or were not, of themselves, sufficient to vitiate the sentencing process, I return to the existing grounds, in particular the complaint that the sentences were manifestly excessive. In effect, all of the grounds 1 to 5 constitute particulars of the general complaint in addition to identifying specific grounds of complaint.

142. I have dealt in some detail with the specific complaints which together were identified as leading to a total effective sentence and non-parole period which were manifestly excessive. After considering those factors individually and together I am persuaded that the complaint as to manifest excess has been made out. As appalling as the conduct of the appellant was, it seems to me that the effective total sentence and non-parole period are so high as to mean that proper weight was not given to the pleas of guilty, to the other indications of remorse, to the very significant delay in this case, and to what I consider to be the appellant's reasonable prospects of rehabilitation. In consequence, the sentence is manifestly excessive.

145. Having reached that conclusion it is now necessary to propose an appropriate sentence for the appellant. In my opinion, it is appropriate, in the circumstances of this case, that upon re-sentencing the appellant the sentences on counts 1 to 3 should be less than those imposed with respect to the equivalent offences in counts 4 to 19. That is so because on the remaining counts the appellant falls to be sentenced as a serious offender under s.6C of the Sentencing Act, and by reference to the principles set out in s.6D, s.6E and s.16(1A)(c). The fact that by virtue of s.6D the protection of the community is deemed the principal purpose for which the sentence is imposed must cause a corresponding diminution in the weight to be given to other sentencing purposes which must also be reflected in the sentences imposed upon the appellant as a serious offender.[8]

148. In re-sentencing the appellant on counts 4 to 19 the court must have regard to the terms of s.6D, which, as I earlier noted, provides that the protection of the community is the principal purpose for which sentences are to be imposed upon the appellant as a serious sexual offender. In addition, general deterrence is important in sentencing for such offences. In sentencing the appellant her Honour concluded that notwithstanding the diagnosis of him as a paedophile, by forensic psychologist Mr David Ball, he presented a low risk of further offending to the community generally, provided that he participated in appropriate assessment and intervention programmes. That conclusion was justified by the evidence before her Honour and before this court, insofar as any risk to the broader community is concerned, but, as I shall discuss, there remains some risk were the appellant to again reside with his own or other young children. The danger to the community of further offending is, however, generally low and the principle of totality should not be regarded as having diminished application. Had there been a more pronounced need to protect the community from the appellant then s.6D(b) would authorise the court to give reduced weight (or no weight at all) to principles of totality than might otherwise have been thought appropriate.

151. Application of the principle of totality, whilst maintaining community protection, can be appropriately addressed, in my opinion, by making orders as to concurrency and cumulation which modify what might otherwise be a disproportionate sentence by virtue of the cumulation of sentences due to his status as a serious sexual offender.[9]

154. There were mitigatory factors in this case, most importantly the factors of remorse and delay which I have earlier discussed. One of the complaints raised under ground 4 of the grounds of appeal was that her Honour failed to give appropriate weight to the assertion that the appellant had himself been the victim of childhood sexual abuse. The situation here was somewhat unusual, in that as a thirteen year old child the appellant had become involved in a homosexual relationship with an adult neighbour. Counsel told her Honour that, at the time, the appellant had initially enjoyed that relationship, but later experienced confusion as to his own sexuality. In his later letters to his children, after his offending conduct had been exposed, the appellant referred to that sexual experience as a factor in his own offending, although he gave no further explanation as to why that was so. Significantly, he said nothing about that childhood experience during his lengthy interview and testing with Mr Ball, who was engaged on his behalf by his solicitors. A history of childhood sexual abuse may, of course, be a relevant and important factor, in providing some insight into conduct by an offender in later years[10], but, like her Honour, I am not persuaded that it is a factor of significance in this case.

157. The question of rehabilitation is difficult to assess. On the other hand, the appellant has not been convicted of any criminal offences subsequent to these offences against his daughters. Some nine years have now elapsed since his behaviour was first exposed. However, while Mr Ball assesses his risk of further offending against the broader community as low he also says that the appellant is impulsive and unable to delay gratification of his impulses and has little respect for social standards. Mr Ball concluded that while he might express the desire to change, the appellant is manipulative, is unlikely to respond to traditional psychotherapy, and may opt out of therapy. As I read Mr Ball's report, those dangers only relate to the risk of offending in similar circumstances to the circumstances of this case, that is, to the risk of offending against children with whom the appellant might reside. The prospects of the appellant once again being in such a residential situation with vulnerable children may not be high.

160. It is appropriate on re-sentencing that count 5 be taken as the base for the purpose of orders as to cumulation and concurrency of other sentences, rather than count 1.

163. By s.6E every term of imprisonment imposed upon a person as a serious sexual offender must, unless otherwise directed by the Court, be served cumulatively upon other such sentences.[11] The terms of the orders made by the learned sentencing judge, however, stipulated that portions of the sentences were to be served cumulatively with the head sentence (which was said to be count 1), rather than stipulating that portion of each sentence was to be served concurrently with other sentences. Expressing the order in the way that her Honour did was contrary to the requirements of ss.6E and 16(1A)(c), and could thereby cause confusion as to the actual sentences imposed.

166. In making orders as to concurrency it is appropriate, in my view, that although it would not be bound thereby the court should have regard to the view of the learned sentencing judge as to those instances where an offence of indecent assault was part and parcel of an offence involving penetration. Her Honour concluded that count 2 should, on that account, be served wholly concurrently with count 10 and also that counts 6 and 7 should be served wholly concurrently with each other and wholly concurrently with the sentence on count 10. I propose orders which give effect to those conclusions by her Honour. It seems appropriate, in my view, to adopt her Honour's approach in that way so as to avoid the appearance of double jeopardy on sentence, having regard to the fact that the appellant would be subject to re-sentencing only because of error in the original sentencing process.

Count 1: Four years and six months imprisonment. Count 2: Twelve months imprisonment. Count 3: Four years and six months imprisonment. Count 4: Eighteen months imprisonment. Count 5: Five years and six months imprisonment. Count 6: Eighteen months imprisonment. Count 7: Eighteen months imprisonment. Count 8: Eighteen months imprisonment. Count 9: Eighteen months imprisonment. Count 10: Five years and six months imprisonment. Count 11: Eighteen months imprisonment. Count 12: Eighteen months imprisonment. Count 13: Eighteen months imprisonment. Count 14: Eighteen months imprisonment. Count 15: Five years and six months imprisonment. Count 16: Eighteen months imprisonment. Count 17: Eighteen months imprisonment. Count 18: Five years and six months imprisonment. Count 19: Eighteen months imprisonment.

173. By operation of law[12], count 2 will be served concurrently with count 1. I would order that seven months of the sentence on count 1 and seven months on count 3 be served cumulatively with the sentence on count 5.[13] I would propose that seventeen months of the sentence on count 4 be served concurrently with the sentence on count 5. I would propose that the sentences on counts 6 and 7 be served wholly concurrently with each other and with the sentence on count 5. I would order that seventeen months of the sentences on counts 8, 9, 11, 12, 13, 14, 16, 17, 19 be served concurrently with the sentence on count 5. I propose that four years and eight months of the sentences on counts 10, 15 and 18 be served concurrently with the sentence on count 5.

176. The result of those proposed orders is that the total effective sentence would be ten years' imprisonment. I would propose that the appellant serve seven years and six months before being eligible for parole. I would direct that to be entered on the records of the Court, pursuant to s.6F of the Sentencing Act 1991, that the appellant has been re-sentenced on counts 4 to 19 as a serious offender.

179. The Court permitted counsel to argue the proposed new grounds of appeal but having concluded that none of those grounds would have been established, it is appropriate, in my opinion, that the application to amend the grounds of appeal by the addition of grounds 7 to 9 should be refused. I conclude, however, that the appeal against sentence should be allowed, the sentences be set aside and new sentences be imposed and orders made in the terms discussed above.

[1] [2002] VSCA 192.

[2] See, for example, the cases cited in my judgment in RND para.[1]. Although two only of the present counts are for offences of incest, four other offences under s.47 of the Crimes Act at that time, for sexual penetration of a child under the age of 10 years, carried the same penalty and were chosen for inclusion on the presentment notwithstanding that they affected the applicant's children. Effectively, therefore, there were six counts of incest.

[3] And also to reduce the total effective and minimum terms.

[4] In the Return of Prisoner Convicted the orders as to cumulation are expressed in elaborate terms so that upon every count on which an order of cumulation was made the period of cumulation was expressed to be cumulative upon all preceding sentences. This was presumably so expressed so as to ensure that it was understood that orders of cumulation were not merely upon the sentence on count 1 but were cumulative upon each other sentence. The practical effect of the orders, however, was as I have expressed it above. A potential problem caused by making orders as to cumulation, rather than as to concurrency, in sentencing a person as a serious sexual offender, is discussed later in these reasons.

[5] In her sentencing remarks her Honour also expressly stated that the sentences on counts 6 and 7 were to be served concurrently with each other as well as with the sentence on count 1.

[6] The definition of "serious offender" in s.6B includes four categories of offender, the appellant falling under the category of "serious sexual offender". The relevant sub-paragraph of the definition of "serious sexual offender" specifies that the status applies to an offender convicted of "2 or more sexual offences" for which he has been sentenced to imprisonment. In this case her Honour declared the appellant to have such status only for counts 4 to 19, but arguably she should have applied it to count 3 also. No argument was addressed to us that in the event of re-sentencing it would be appropriate to declare that the status of serious offender should commence with count 3. In my view, should re-sentencing be necessary then, without reaching any decided view as to the proper interpretation of the definition in s.6B, it would be inappropriate to adopt a different course to that which was adopted by her Honour in this respect, counsel for the appellant having had no opportunity to make submissions on the matter.

[7] See R. v. S.B.L. [1998] VSCA 144; [1999] 1 V.R. 706, at 711, per Phillips, C.J. at 723-724, per Ormiston, J.A. and and at 725-726, per Batt, J.A.

[8] I am, of course, also applying the general sentencing principles set out in s.5 of the Sentencing Act.

[9] As I earlier noted (see Footnote 6), the appellant arguably should have been sentenced as a serious offender from counts 3 to 19, but it is appropriate that the Court adopt the same approach as the sentencing judge, and exclude count 3 from that order.

[10] See R. v. AWF [2000] VSCA 172; (2000) 2 V.R. 1.

[11] In determining whether what would otherwise be total cumulation should be varied by the making of an order as to concurrency (in whole or part) there is no rule that separate offences should ordinarily require there be total cumulation: see R. v. Fuller-Cust [2002] VSCA 168, at [49] to [50] per Batt, J.A.; Director of Public Prosecutions v. Grabovac [1998] 1 V.R. 664, at 680 per Ormiston, J.A.

[12] Section 16(1) Sentencing Act 1991.

[13] I have expressed the order in this way because, as I have earlier discussed, I have not treated the appellant as being a serious sexual offender with respect to count 3, thus I have varied what otherwise (due to s.16(1)) would have been a wholly concurrent effect for this sentence.