R v D D

Court of Appeal (Vic)|2008-02-18|Before: MAXWELL P, CHERNOV and NEAVE JJA

CRIMINAL LAW - Sentencing - In the related judgment of R v DD [2007] VSCA 317 an appeal against conviction was allowed, in part - Re-sentencing for remaining offences of incest and indecent assault, committed over 30 years ago, against the appellant's daughter and her friend, both aged between 11 and 13.

**1 I agree, for the reasons given by Neave JA, that the appellant should be re-sentenced as her Honour proposes.

2 I agree, for the reasons given by Neave JA, that the appellant should be re-sentenced as her Honour proposes.**

**3 On 19 December 2007, the Court allowed an appeal, in part, against the appellant DD's convictions for certain sexual offences.[1] Because the convictions on counts 6, 7 and 8 have been quashed, it is necessary to re-sentence the appellant on count 1 (incest involving his daughter OA), counts 2 and 3 (indecent assaults of OA), and counts 4 and 5 (indecent assaults of SS).

4 The circumstances in which these offences were committed are described in my reasons for judgment in R v DD,[2] and it is unnecessary to set out them in any detail here. The offences occurred more than 30 years ago, when the complainant's oldest daughter, OA, was aged 11 or 12 and SS, the daughter of a neighbour of the appellant, was about 13 years old. The appellant was between 36 and 39 years old when he committed the offences.**

5 His Honour sentenced the appellant to six years' imprisonment on count 1. The appellant's counsel submitted that in re-sentencing the appellant on count 1, the count of incest against his daughter, the Court should regard the act as more in the nature of an attempt, than a completed act of incest. At that time, the maximum

sentence for an act of incest with a girl aged 10 or more was twenty years' imprisonment,[3] and the maximum sentence for an attempt to commit incest was 10 years' imprisonment.[4] Counsel said that the appellant's act of penile penetration of the complainant's vagina occurred only briefly and the complainant had testified that full penetration did not occur. The appellant did not ejaculate, so that he did not expose the complainant to any risk of pregnancy. Counsel submitted that for these reasons the sentence imposed should be at the lower end of the range of the maximum term of imprisonment.

**6 Counsel referred to the sentences of imprisonment imposed for incest over the period 2001-2002 to 2005-2006, by which time the maximum term of imprisonment for incest had been increased to 25 years.[5] The median term of imprisonment over this period ranged from three years to four years.[6] Thus counsel submitted that the six year sentence which his Honour had imposed was well outside the range of sentences which should be imposed in these circumstances.

7 Counsel for the Crown submitted that the sentence of six years' imprisonment imposed by the learned sentencing judge was within the range for this offence, given the circumstances. In particular, counsel pointed to the fact that this incest involved a father sexually penetrating his 11 or 12 year old daughter, the fact that the victim did not consent (so it was akin to a rape), the appellant's lack of remorse and the serious psychological injury caused to the victim.

8 His Honour imposed sentences of six months' imprisonment on both counts of indecent assault against OA. He ordered that the sentence imposed on count 2 be served wholly concurrently with the sentence imposed on count 1 and that three months of the sentence imposed on count 3 be cumulated on the sentence imposed on the sentence for count 1.

9 Counsel for the appellant conceded that the sentencing statistics covering the period 2001-2002 to 2005-2006 showed that the average and median terms of imprisonment imposed for indecent assault were higher than the sentences imposed by his Honour.[7] However, counsel pointed out that these statistics were compiled when the maximum term of imprisonment for indecent assault was 10 years, as opposed to the five year maximum sentence that existed at the time these offences were committed.[8] Further, counsel submitted that in the absence of an appeal by the Crown, the Court should be slow to increase the sentences imposed on counts 2 and 3, and that these sentences were not manifestly inadequate.

10 Counsel for the Crown said that the indecent assaults of OA called for a greater sentence, given the serious nature of the assaults and the fact that they involved a father assaulting his young daughter.

11 His Honour imposed sentences of two months' imprisonment in relation to the indecent assaults of SS (counts 4 and 5) and ordered that one month of each of these sentences be cumulated on the sentence imposed on count 1. Counsel for the appellant submitted that these assaults were relatively minor and did not warrant a term of imprisonment. Alternatively, he said that the term of imprisonment imposed by his Honour in relation to these counts should not be increased. Further, he contended that if any term of imprisonment was imposed for these offences it would normally be wholly suspended.

12 His Honour imposed a total effective sentence of seven years and eleven months' imprisonment in relation to these offences. Counsel for the appellant submitted that in re-sentencing the appellant there should be no cumulation of the sentence imposed in relation to count 2, because this indecent assault occurred on the same occasion as the act of incest, when OA was forced to masturbate her father before and after he penetrated her. He conceded that a moderate degree of cumulation was warranted in relation to the sentence imposed for count 3, which involved an act of forced masturbation occurring on a different and separate occasion.

13 Further, counsel submitted that if the court simply left in place the sentences imposed by his Honour for counts 1-5 this would result in a total effective sentence of six years and five months, which would be a very heavy sentence in the circumstances of this case, having regard to the age of the offender and the fact that he had no prior convictions or subsequent convictions for sexual offences in the 35 years since these offences had occurred.**

**14 The sentences imposed on the appellant must recognise the gravity of the offences and denounce his conduct. Whether or not full penetration occurred, this incest was an appalling act of abuse which exploited the loving and supportive relationship which OA was entitled to have with her father. The indecent assaults on OA were similarly abusive. OA was only 11 or 12 years old when her father assaulted her. The appellant violated his daughter's bodily integrity and destroyed her trust in him. He exercised his power over her at a time when she was in a strange country, had limited English and little opportunity to seek help from outside her family.

15 Victims of incest and other forms of intra-familial sexual abuse take years to recover from its psychological effects and sometimes never do so. OA's victim impact statement says that as a result of her father's acts she is often depressed, has nightmares about the assaults and flashbacks of the events, and that she often sleeps poorly. She also says in her victim impact statement that her sexual relationship with her husband has suffered as the result of her father's assaults.

16 In his sentencing remarks the judge below referred to a psychological report from Ms Lyn Baudinet-Johnson, dated 15 March 2004, which reports that:**

[OA] is suffering from post-traumatic stress disorder as a result of [the appellant's] sexual abuse of her over a two year period, at a time when she had no support from her mother and felt completely helpless and powerless to do anything about her plight.

**17 OA's victim impact statement indicates that her stress has been exacerbated by her father's failure to express any remorse for harming her. The appellant's lack of remorse must be given weight in re-sentencing him. Further, although the appellant cannot be penalised for pleading not guilty to these offences, he is not entitled to the reduction of his sentence he could have otherwise received if he had done so.[9]

18 The appellant indecently assaulted SS by touching her vagina on the outside of her clothing (count 4) and, on a separate occasion, by briefly touching her breast (count 5). These indecent assaults were not as grave as the assaults on OA, but they involved the abusive exercise of power over a young person. SS was only 13 when these events occurred. Young girls are entitled to be protected from the predatory sexual attentions of their elders. Fortunately SS does not appear to have suffered any after-effects from these assaults. No victim impact statement was filed on her behalf and the judge below commented that 'she suffered no lasting harm'.

19 In re-sentencing the appellant I must also take account of a number of mitigating factors. He is now aged 72 and his advanced age and physical condition will make his imprisonment more burdensome than it would be for a younger person. At the time of sentencing, the learned judge referred to a report from Mr Bernard Healey, a clinical psychologist, which noted that although the appellant was not suffering from any major psychological or emotional disturbance he was depressed because of the criminal proceedings. His Honour also referred to a report dated 11 April 2006 from Dr Awal, the appellant's GP, which said that he has had chronic back pain since he was 16, that at the time of report he was suffering from anxiety and stress and that he has degenerative osteo-arthritis in his right hip. Dr Awal said that the appellant's health is relatively good apart from those matters.

20 Weight must also be given to the fact that the offences occurred many years ago, that the appellant has not been convicted of any offences in the intervening years, and that he has received a number of favourable character references, including references from Mr Arnold, who has known him for the past four years and from the mother-in-law of his younger daughter.

21 As Callaway JA recognised in R v MWH, sexual offences against children are frequently not disclosed for many years. His Honour made the following comments about the ways in which delay in disclosing an offence and the consequent prosecution of the offender are relevant to sentencing: [10]**

It is not uncommon for sexual offences against children to be discovered many years later, not least because the victims are too frightened or embarrassed to come forward and are reluctant to relive such experiences later...

It is the effects of delay that are important for sentencing. As in R. v. Law,[11] the 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 or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. 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. 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.

22 Callaway JA's remarks are mainly concerned with the effects of delay in reporting on the offender. However, it also necessary to take account of the effect of delay on the victims of sexual offences. It is common for complainants, particularly child complainants, to report sexual offences many years after they have occurred, for the reasons identified by Callaway JA in the passage above. Victims of inter-familial sexual abuse have particular difficulties in reporting offences, not least because they often have the well-founded concern that disclosure may destroy relationships within their family. As Vincent JA said in DPP v Toomey:[12]

Although much has been done in recent years to encourage young persons who have been subjected to inappropriate behaviours to report what has happened, by reason of the presence of a variety of factors it must be anticipated that often the commission of such offences will not be revealed for years and that their eventual disclosure will be both extremely difficult and painful for those offended against, their families and others associated with them.

If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences. In my view, this cannot be permitted to occur.

**The sentences imposed must therefore take account of the lasting effects of the abuse on OA and denounce the behaviour of the appellant.

23 As the learned sentencing judge recognised in his reasons, the appellant's lack of a criminal record since he offended against OA and SS more than 30 years ago suggest he has rehabilitated himself and is unlikely to re-offend. For that reason specific deterrence need be given little weight in re-sentencing him.

24 By contrast, I consider that considerable emphasis must be placed on general deterrence. Vincent JA's comments about this matter in Toomey are apposite:[13]**

Often [victims of sexual abuse] experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years. Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards. Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration. Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators. They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.

25 Having regard to all of the above matters, I would impose the following sentences on the appellant:

On count 2 of indecent assault of OA - nine months' imprisonment

On count 3 of indecent assault of OA - twelve months' imprisonment

On count 4 of indecent assault of SS - two months' imprisonment

On count 5 of indecent assault of SS - two months' imprisonment

**26 The higher sentence imposed in relation to count 3, compared to count 2, recognises that this count occurred on a different occasion from the offence covered by count 2. OA was forced to masturbate the appellant until he ejaculated. This was a serious indecent assault.

27 Because the appellant has been sentenced to a term of imprisonment for the sexual offences covered by counts 1 and 2 he must be sentenced as a serious sexual offender for the remaining counts.[14] The serious sexual offender provisions in Part 2A of the Sentencing Act 1991 apply irrespective of whether the offences were committed before or after Part 2A came into operation.[15] In my opinion it is not necessary to impose a sentence longer than that proportionate to the gravity of the offences in order to protect the community.[16]

28 Under s 6E of the Sentencing Act every term of imprisonment imposed on a serious offender for a relevant offence must be served cumulatively on any uncompleted sentence imposed on that offender, unless the court otherwise directs. Counts 3, 4 and 5 are relevant offences.

29 I would treat the sentence imposed on count 1 as the base sentence and order that one month of the sentence imposed on count 2, six months of the sentence imposed on count 3, and one month of the sentence imposed on count 4 be served cumulatively on count 1. Otherwise the sentences imposed on counts 2-5 should be served concurrently with count 1 and with each other. This amounts to a total effective sentence of five years and eight months' imprisonment. I would impose a non-parole period of three years and nine months' imprisonment.

30 The fact that the offender has been sentenced as a serious sexual offender should be entered in the orders of the Court, as required by s 6F.

31 The appellant is a registrable offender[17] under s 6 of the Sex Offenders Registration Act 2004 and is required to comply with the reporting obligations in that Act for the rest of his life.[18]**

I certify that this and the preceding 108 pages are a true copy of the reasons for judgment of Neave JA respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 18 February 2008.

[3] See Crimes Act 1958, s 52(1). Reprint (No. 3) as at 20 February 1970 and reprint (No. 4) as at 1 March 1973.

[4] See Crimes Act 1958, s 52(2). Reprint (No. 3) as at 20 February 1970 and reprint (No. 4) as at 1 March 1973.

[5] Although the maximum sentence had increased by this period, some of the sentences imposed may still have related to offences that were committed some years earlier, when the maximum sentence was only 20 years' imprisonment.

[6] The median sentence was three years in 2001-02 and four years in each of the years from 2002-03 to 2005-2006: Judicial College of Victoria Victorian Sentencing Manual (1 July 2007) Statistical Tables - Incest [24.9.3.2].

[7] Judicial College of Victoria Victorian Sentencing Manual (1 July 2007) Statistical Tables - Incest [24.9.3.2].

[8] See Crimes Act 1958, s 55(1). Reprint (No. 3) as at 20 February 1970 and reprint (No. 4) as at 1 March 1973.

[9] See R v Richmond [1920] VicLawRp 3; [1920] VLR 9, 12; R v Gray [1977] VicRp 27; [1977] VR 225, 231; R v Siganto [1998] HCA 74; (1998) 194 CLR 656, 663-664.

[10] [2001] VSCA 196, [23]-[24].

[12] DPP v Toomey [2006] VSCA 90, [23]-[24].

[14] Sentencing Act 1991, s 6B, Schedule 1, cl 1(a)(ii) and (iv); and (g).

[17] Sentencing Act 1991, s 7; and Schedule 1, cl 1 and 6.

[18] Sentencing Act 1991, s 34(1)(c)(ii); Schedule 1 cl 1, 6 and 13(ii); and Schedule 2 cl 1 and 34(ii).

Offenders Registration Act 2004

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