R v D H [2003] VSCA 220

5. Mr. Lyons, who appeared for the appellant in this Court, contended that the sentencing discretion had been re-opened because of errors which had been made by the sentencing judge in respect of the applicable maxima on the charges of attempted incest and incest in counts 1, 2, 4 and 5 - all of which counts alleged offences prior to September 1997 when the maximum penalty for incest was elevated by the legislature from 20 years to 25 years. At the time when the offences charged in the counts referred to were committed, the maximum penalty for incest was in fact 20 years, and for attempted incest 15 years. The penalties which his Honour imposed of four years, six years, four years and six years respectively do not appear to me to be penalties imposed by reference to the maximum available, and in any event have not produced any material error because - aside from the cumulation of one year of the sentence on count 5 - all penalties have been subsumed by penalties imposed on other counts. The other specific error, which was alleged to have been made by the sentencing judge, was in the order for cumulation. Once again, in my view, that error was nothing more than an immaterial "slip-up" by the sentencing judge whose reasons disclose that at all times it was his intention to produce a total effective sentence on Presentment PO2470110 of 17 years. Neither error is one which, in my view, re-opens the exercise of his Honour's discretion.

8. The major argument, eloquently presented by Mr. Lyons, was in respect of the ground which alleged manifest excess. The essence of the ground was that the total effective sentence of 18 years and the non-parole period fixed of 15 years, were manifestly excessive, and that - in particular - the sentences imposed on counts 6 to 11 inclusive of Presentment PO2470110, being the offences of rape of the complainant K, (penile rapes orally, anally and vaginally and rapes anally and vaginally by means of a cucumber), were themselves excessive. In particular, it was contended, the term of 12 years imposed for the sentence on count 8 was beyond the range of sentence which could reasonably have been imposed. These latter counts represented offences committed on the one day against the appellant's eldest step-daughter; and were offences which had been self-recorded on a video tape set up by the appellant. The recording of these offences on the video tape was a humiliating and aggravating feature of these crimes. Mr. Lyons submitted that this Court should steel itself against emotional reactions to the video tape disclosures because they uniquely represent the common brutality of the crime which cannot be replicated by oral evidence which is the customary form of describing a rape. Like the other judges of this Court, I viewed the video tape; and I share the views of the sentencing judge that the crimes committed against the eldest step-daughter on that day were not only humiliating, but were brutal and persisted in over a long period against the protestations of the victim. I agree with Mr. Lyons that the pictorial representation of what the appellant was doing to his step-daughter is capable of exciting an over-reaction on the part of the sentencer; something which the learned sentencing judge (a judge of many years experience) had to be, and the judges of this Court need to be, careful to resist. Having said that, I can see nothing in the sentences imposed, either individually or as a total effective sentence, which would suggest to me that the sentencing judge has over-penalised these very serious crimes which represented gross breaches of trust and which have undoubtedly caused serious emotional trauma. I agree with the other members of the Court that the appellant has shown very little remorse for his conduct, aside from a plea of guilty which was almost inevitable after the video recording had been recovered. I do not regard the sentence of 12 years on count 8 as being manifestly excessive, nor do I regard the moderate cumulation ordered by his Honour to have produced a total effective sentence which is so far beyond the range as to warrant interference by this Court. Those who commit such serious crimes against victims of tender years, to whom they stand in locos parentis, and do so through the exercise of their power and authority, and for no better reason than personal sexual gratification, must expect sentences to be imposed of the order which the sentencing judge here imposed. I agree with the sentencing judge that the offending "lies very much in the very high range of seriousness for such serious offences". I also agree with his Honour that

this offending was carried out "in a most callous, cruel and calculating way".

12. As I have previously indicated, it is my view that the appeal should be dismissed.

17. The appellant was sentenced in the County Court by the former Chief Judge on 29 October 2002, after pleading guilty to 14 counts of sexual offences committed against his three step-daughters (to whom we shall refer as R, K and J). Presentment No.P02470110 contained 7 counts of incest (contrary to s.44(2) of the Crimes Act 1958), 6 counts of rape (contrary to s.38(1)) and one count of attempted incest (contrary to s.321M). The appellant also pleaded guilty to the 6 counts of handling stolen goods (contrary to s.88(1)) and the one count of possession of a drug of dependence (contrary to s.73(1)) which were on Presentment No.C0202896. By the time he was sentenced, the appellant was 44 years old and he admitted prior convictions covering a period of 20 years, the more serious of them relating to dishonesty and the prior convictions being not particularly relevant to the sexual offences now charged. None the less, as his Honour remarked when sentencing, they demonstrated anti-social behaviour over a lengthy period.

21. Although his Honour dealt with the offending covered by Presentment No.C0202896 only after dealing with that covered by the other presentment, it is convenient to deal with the two in reverse order. The amounts involved in the crimes of dishonesty were substantial and on the six counts of handling stolen goods, his Honour sentenced as follows: on count 1, 3 years' imprisonment; count 2, 6 months'; count 3, 5 years'; count 5, 3 months'; count 6, 3 months' and on count 7, 3 years'. On count 4, possession of a drug of dependence (and of no present relevance), the appellant was sentenced to 3 months' imprisonment. As all sentences

were to be served concurrently, the total effective sentence for the offending covered by this presentment was 5 years' imprisonment, one year of which his Honour ordered should be served cumulatively upon the sentences imposed for the offending covered by the other presentment. There is now no challenge to any of that.

26. By way of preface to the description of the sexual offending covered by Presentment No.P02470110, we note that at the time the appellant was living with the three complainants and their mother. The appellant had earlier, commencing in 1979, had a relationship with the mother lasting for some two years, during which time a son was born. When that relationship ended, the woman commenced another relationship during which R, K and J were born. That relationship failed in 1993 and then she and the appellant rekindled their earlier relationship and resumed co-habitation. The appellant assumed the role of father to all of the children and they all lived together at various addresses. It was later to prove significant that at the last such address the appellant maintained a room to himself, which he kept locked.

29. Counts 1, 2 and 3 involved the step-daughter R, whose date of birth was 15 August 1983. Count 1, the charge of attempted incest, was alleged to have taken place between 15 August 1993 (R's tenth birthday) and 30 September 1994. It occurred on an occasion when the rest of the family was out and the appellant attempted to penetrate her vagina with his penis. In her statement, R said that the attempt caused her pain and she was apprehensive that someone might walk in on them. Count 2, the first count of incest, was alleged to have occurred between 1 October 1994 and 31 December 1998 when the appellant took R to a bowling alley and, in the back seat of the car, placed his penis in her vagina from behind while she knelt looking out of the window. R stated that the pain was unbelievable and that she was screaming and telling him to stop. Count 3, a count of incest involving penile/anal sex, was alleged to have occurred between 1 January 1999 and 14 August 2001 at a time when R was 15, 16 or 17 years old.

32. These were the only counts involving R. The Chief Judge was told that the maximum penalties for both incest and rape were 25 years' imprisonment and for attempted incest 20 years' imprisonment. His Honour sentenced the appellant to 4 years' imprisonment on count 1 (attempted incest) and to 6 years' and 7 years' respectively on counts 2 and 3 (incest). The appellant was being sentenced as a serious sexual offender after count 2 but his Honour expressly declined to impose sentences after count 2 that were disproportionate to the offending, despite his power to do so under s.6D of the Sentencing Act 1991. His Honour ordered that 1 year of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 3 but otherwise the sentences on counts 1, 2 and 3 were to be served concurrently.

35. Counts 4 to 11 concerned the complainant K. She was born on 9 May 1982. Count 4, incest, was representative of two like incidents occurring between 1 September 1994 and 31 December 1995, the first occurring during the September school holidays when the complainant was 12 years old. It happened on an occasion when the appellant drove to an industrial area in Tottenham and, after parking the car, grabbed K's head and forced his penis into her mouth despite her telling him that she did not want to do it. The second such incident occurred some time after the first, at the family home when the appellant forced K to suck on his penis, something witnessed by the complainant R. Count 5, a count of incest said to have occurred on 9 May 1996, was representative of 6 charges, covering the allegation that on every one of K's birthdays from the fourteenth to the nineteenth, the appellant had penile/vaginal sex with K. The appellant was sentenced on count 4 to 4 years' imprisonment and on count 5 to 6 years'.

38. Counts 6 to 11 were counts of rape, all of them occurring during one episode on 16 October 2001 which the appellant recorded on a video tape seized by the police during a search of his premises. Count 6 reflects a charge that the accused inserted a cucumber in K's vagina while she was protesting and crying and count 7 is a continuing offence, covering 3 occasions on which the appellant is seen to penetrate K's anus with either his thumb or his fingers. Count 8 is another continuing offence, covering two penetrations of K's anus with the cucumber. After the second digital/anal penetration alleged in count 7, the appellant then penetrated with his penis the complainant's mouth (count 9), her vagina (count 10) and her anus (count 11) in turn (before digitally penetrating her anus a third time, that being the last incident covered by count 7).

41. That the offending was recorded by the appellant and that the appellant was obviously distressed and in pain during the offending were matters in aggravation. The appellant was sentenced to 10 years' imprisonment on each of counts 6 and 7, to 12 years' on count 8, to 7 years' on count 9, to 9 years' on count 10 and to 10 years' imprisonment on count 11. It was ordered that 1 year of the sentence imposed on count 5 (one of the earlier counts of incest) be served cumulatively on the sentence imposed on count 8, but otherwise the sentences imposed on counts 4 to 11 were to be served concurrently. The result, so far as K was concerned, was a total effective sentence of 13 years.

44. The last three counts concerned J, the youngest of the three complainants. Her date of birth was 31 March 1988 and all three counts alleged incest between 1 January 1999 (when she was 10 years old) and 7 November 2001 (by which time she was 12). All 3 counts involved penetration of J by the appellant's penis: either her vagina (count 12), her anus (count 13), or her mouth (count 14). On these three counts, the appellant was sentenced to 6 years' imprisonment, 7 years' and 4 years' respectively. One year of the sentenced imposed on count 12 was ordered to be served cumulatively with that imposed on count 13, but otherwise the sentences were to be served concurrently.

47. It will be apparent from what has so far been said that in sentencing his Honour grouped the offences according to each complainant. In respect of R there was what might be called a total effective sentence of 8 years' imprisonment, in respect of K, 13 years', and in respect of J, 8 years'. His Honour rejected a submission that there should be no further accumulation and further ordered that 2 years of the sentence imposed on count 3 (involving R) and 2 years of the sentence imposed on count 13 (involving J) be served cumulatively upon each other and on the sentence imposed on count 8 (involving K). This, said his Honour, yielded a total effective sentence of 17 years' imprisonment, but as appellant's counsel was quick to point out on this appeal, this bespoke error. We have no doubt about his Honour's intention: it was to impose a total effective sentence of 17 years' imprisonment for the sexual offending charged on Presentment No. P02470110; and so much was made plain in discussion with counsel below. But in ordering that 2 years of the sentence imposed on count 3 and 2 years of the sentence imposed on count 13 be served cumulatively upon each other and upon the sentence imposed on count 8, his Honour adopted a base of 12 years, instead of the 13 established by his earlier order that one year of the term imposed on count 5 be served cumulatively upon the sentence imposed on count 8. The final order for cumulation ("final" that is, on Presentment No.P02470110) should have been expressed as cumulation not on the term imposed on count 8, but on the terms imposed on counts 4 to 11 - and appellant's counsel accepted during the argument on appeal that, had the order for cumulation been so expressed, there would have been no error. The error was only one of expression and, if it were necessary, it could be simply corrected now. (That it was merely a slip is confirmed by the terms in which the return of prisoners is cast and to which an Associate's signature is appended.)

50. With that said, the total effective sentence for the sexual offences covered by Presentment No.P02470110 can be taken to be 17 years', as the Chief Judge declared when sentencing. His Honour then proceeded to deal with the offences on the other presentment, and for these the appellant was given, as already described, a total effective sentence of 5 years' imprisonment, one year of which was ordered to be served cumulatively on the sentences imposed for sexual misconduct. The overall result was a total effective sentence, for the offending on the two presentments, of 18 years' imprisonment and his Honour fixed a non-parole period of 15 years. There was a declaration that 261 days had been spent in pre-sentence detention.

54. The appellant now appeals by leave granted on 9 May 2003. Seven grounds were identified in the original notice of application. Two more grounds were added on 3 June last and it is convenient to deal with those first. Ground 9 pointed to his Honour's error in making the penultimate order for accumulation; that is to say, it refers to the slip that we have already dealt with. While it deserves to be corrected, it does not in our opinion reopen the sentencing discretion, as counsel submitted. It was an error of form and one which can be corrected readily enough; that is all.

57. Ground 8, however, pointed to error in his Honour's apprehension of the maximum penalties in relation to count 1 (attempted incest) and counts 2, 4 and 5 (incest). Those 4 counts involved offending before 1997 and it was only in 1997 that the maximum penalty for incest was increased to 25 years and for attempted incest to 20 years', the penalties of which his Honour was advised. Before 1997 the maximum penalty for incest was 20 years and for attempted incest, 15 years. Appellant's counsel contended that his Honour "steered" his sentences by reference to the wrong maxima, sentencing the appellant to 4 years' imprisonment on count 1 (attempted incest) in the mistaken belief that the maximum was 20 years (not 15) and, on counts 2, 4, and 5 (incest) to 6, 4 and 6 years' imprisonment respectively, believing the maximum to be 25 years (not 20). Counsel submitted that the judge was "materially influenced by the maximum penalty for each offence" when imposing sentence; for not only were the maximum penalties recited at the commencement of his Honour's sentencing remarks, but the offending was considered to be "at the upper level of seriousness" in each category. Moreover, when distinguishing the earlier decision of D.P.P. v. B.A.B.[1], his Honour did so on the ground, inter alia, that in that case the maximum penalties had been lower than they were now; and that was simply not correct as to incest, if the offending was committed before the increase in penalties that occurred in 1997.

60. In our view, the argument that the sentencing judge "steered" his choice of sentence by reference to the maxima, as he believed them to be, is not very persuasive, given the significant margin between the sentence imposed and the maximum penalty in each case. On counts 2, 4 and 5, sentences of 6, 4 and 6 years respectively were imposed, sentences which are sufficiently distant from the supposed maximum of 25 years' (or indeed the correct maximum of 20 years') to be uninfluenced by it save in the most general way. So too, on count 1 where the sentence of 4 years' imprisonment seems to us sufficiently distant for both the supposed maximum (of 20 years') and the correct maximum (of 15 years') as to be not significantly influenced by it. Reference need be made only to R. v. R.J.E.[2] and R. v. P.B.W.[3] to establish that reference by the sentencing judge to an incorrect maximum does not of itself vitiate the exercise of the sentencing discretion; the error must first be shown to be material and we are not so persuaded in this case: contrast R. v. Ma[4]. As we will later discuss, however, when upon resentencing on count 2 regard was had to the correct maximum sentence applicable at the time of offending then in exercising our own discretion the sentence we would impose would be less than that imposed by his Honour.

64. As to the other grounds of appeal, appellant's counsel expressly abandoned reliance upon grounds 3 and 4. Grounds 1 and 2 both alleged manifest excess, the first as to the total effective sentence and the second as to the individual sentences imposed in respect of the offending on Presentment No.P02270110. Grounds 5, 6 and 7, claiming that the judge failed to give due weight to the appellant's plea of guilty or to the principles of proportionality and totality, were properly dealt with as particulars of the more general claim of manifest excess.

67. As argued, however, one complaint of the appellant's was that the relationship between the overall minimum term of 15 years' imprisonment and the total effective sentence was such as to bespeak error in itself: the minimum was too high a proportion, it was said, of the head sentence: R. v. Barnes[5]. But the argument was flawed because in developing the argument counsel dwelt on a head term of 17 years', when, as already explained, his Honour's orders for accumulation, when properly articulated, yielded a total effective sentence of 17 years' imprisonment for the offences on presentment P02470110 only and, with the further accumulation of one year for the sentences imposed on the other presentment, a total effective sentence overall of 18 years' imprisonment. With that clarified, there can be no legitimate concern. There is nothing disproportionate about an overall head term of 18 years and a minimum term of 15 years.

70. In substance, the argument put to the court was that, however the sentences were constructed, the end result of 18 years' imprisonment for all of the offences dealt with (or, if the focus be simply on the sexual offences, 17 years') was quite breathtaking. It responded, said counsel, to the "shock" test; 18 years' was simply too much. There was no specific attack on the particular orders for accumulation (save ground 9); nor could there be in our opinion for they were modest. The submission of manifest excess was directed principally to the end result, and given the circumstances of the offending and the serious criminality of the charges involved it is difficult to see how an argument could succeed that any of the individual sentences was manifestly excessive, unless with regard to the individual sentences imposed on counts 6 to 11 (the offences that were recorded on video tape). Indeed, if the sentence of 12 years' imposed on count 8 were to be reduced and no other change made, that would immediately reduce the overall sentence to be served.

73. On the question of manifest excess, appellant's counsel pointed to the early plea of guilty and the fact that that had saved the complainant's from the trauma of giving evidence: and he pointed, too, to the appellant's lack of prior convictions relevant to the sexual offences and to the evidence of remorse and rehabilitation. No doubt these were factors in mitigation; but their value should not be overestimated. First, the plea of guilty was precipitated by the discovery of the video tape recording which was found by the police in the room that the appellant kept locked in the house where he and the family were living; and that tape recording was itself a matter going in aggravation. The video camera and the tripod were also found during the police search, as were letters of a sexually explicit nature from the three victims and photographs, including one of R lying on a bed wearing a G-string. In their statements to police K and R said they were made by the appellant to write love letters to him, with a view to his using them as protection should he ever be caught. (And the appellant also threatened K that if she told anyone about the offending her mother would lose custody of the children.)

76. In his record of interview to police on 9 November 2001 the appellant refused to respond to most of the questions put to him, maintaining that he had been as a father to the children - and a good father - and that he had not done anything to them. It was on 6 March 2002, when confronted with the video tape recording, that he said that K had begged him to do the things depicted and that he had never forced or threatened her. Indeed he said that when she started to cry half way through the tape recording, he had stopped it and asked her if she wished to continue. She had said yes and, he said, he was not aware at that time that what he was doing was an offence. Yet the video tape recording makes it plain that K was not a willing victim and, once the recording was to hand, we think that the appellant's chances of acquittal were pretty remote. That is the context in which to evaluate the plea of guilty, coupled with the fact that, however obtained, the appellant's plea undoubtedly did save the three complainants the trauma of a trial in which they would have had to revisit past abuses.

79. As for remorse, the judge was obviously troubled by an apparent conflict in the reports from the two psychiatrists, Dr. Walton and Dr. Barry-Walsh. To put it shortly, Dr. Walton saw not much evidence of remorse when he interviewed the appellant, while Dr. Barry-Walsh, who saw the appellant a couple of days afterwards thought that he did show signs of genuine remorse. As a result, his Honour had both the psychiatrists called to give evidence. Addressing the appellant in his sentencing remarks, his Honour said:-

"However, as on the respective reports there appeared to be a divergence of views between those two psychiatrists as to whether you are manifesting genuine indications of remorse for your criminal offending, I required that each of those specialists give viva voce evidence relative to their respective reports. I have now heard that evidence and received further submissions from counsel concerning that evidence and the psychiatrists' reports. When considering the psychiatric evidence and the submissions of counsel relative to this issue of remorse, I also bring into account your denial of any wrongdoing when interviewed by the police on two occasions, until you were confronted with the videotape of you raping [K], and your subsequent behaviour whilst you were on bail, all of which objectively goes against any finding of remorse on your part. In the light of all that evidence, as I indicated to counsel, I proceed to sentence you on the basis that at the moment you have an under-developed sense of remorse for your offending, which has some potential to more fully develop in the future. I therefore treat that as a modest element of mitigation."

83. There was little enough evidence of rehabilitation. Again, what there was stemmed from the psychiatrists' reports. Immediately after dealing with remorse in his sentencing remarks, his Honour said this:-

"In that context it is to be observed that if, during your incarceration, you were to complete the sex offenders' treatment program presently based at Ararat Prison, to quote Dr. Walton, "There are no clear indications that you may not be able to respond favourably to that rehabilitation."

This was a very cautious comment by the psychiatrist, and scarcely promising. Accordingly, his Honour concluded on this aspect as follows:-

"Therefore, in addition to appropriate allowance being made for your plea of guilty and the fact that you will be held in protective custody, I make a modest allowance for the chances of your rehabilitation and reformation. Otherwise, your criminality, in so seriously offending against your three victims, must be fully brought into account when deciding the appropriate sentence to impose on you."

We agree, with respect. A modest allowance was all that was due for the appellant's remorse and prospects of rehabilitation, such as they were. Counsel's submission was that, modest though it must have been, it is difficult to discern how any allowance was made, given the severity of the overall term of 18 years' imprisonment.

90. There is no doubt but that the individual sentences imposed were stern, especially that on count 8, as also was the overall term of 17 years' for the sexual offences. On the other hand these were particularly nasty examples of the crimes involved and we think the sentencing judge put the matter succinctly when he said:-

"I am well satisfied that by reason of the tender age of each of the complainants when you first commenced to abuse each of them; by reason of the gross breach of trust and of your position of power and authority which you had relative to them; by reason of the depraved sexual abuse, misuse you made of them; by reason of your continued abuse of the elder two complainants over a lengthy period of time; and finally with [K] by reason of the fact that you video taped each of the rapes which you committed on her, the totality of your offending against these three complainants was of a most severe and serious nature. Added to that, you required them to write love letters to you, with the purpose that should your misbehaviour be discovered, the impression would be given that these young girls were willing participants in your abuse and misuse of them. You also threatened them not to tell anyone of what you had done to them, lest their mother lose custody of them."

Before his Honour, counsel then appearing did not concede that the motivation for the writing of the "love letters" was that for which the prosecutor contended. It was, however, open to his Honour to accept the explanation proffered by the two complainants who wrote them and that finding was not challenged before us.

95. In his sentencing remarks the Chief Judge referred specifically to the submission made by appellant's counsel in the course of the plea "that you [the appellant] are not generally a threat to the community but rather your offending was a situational thing, each of these young girls simply happening to live under the same roof as you and your de facto wife and other children". Of this submission the Chief Judge said:-

"Although in one sense that may be so, the evidence indicates that you, in a very deliberate way, over a lengthy period of time, abused, in the most serious manner, the trust which reposed in you as de facto stepfather to these three complainants."

After referring to the victim impact statements, his Honour said:-

"... it must not be lost sight of that not only did you take from each of your victims her innocence at a tender age, but you did this in serial manner whilst continuing your abuse of each of the elder victims."

"All of those circumstances well satisfy me that your abuse, misuse of your three stepdaughters was carried out in a most callous, cruel and calculating way."

The tape recording provides an all too explicit demonstration of this assessment.

104. That brings us to the aspect of these sentences that we have found the most troubling: the video tape recording of the offences that were committed on K on 16 October 2001. Although appellant's counsel said that he abandoned ground 4 (alleging that the sentencing judge had given "too much weight to the shocking nature of the offences, in particular the video taping of those acts which formed the basis of counts 6, 7, 8, 9, 10 & 11"), during argument the question was canvassed whether it could be said that, in sentencing on these counts, the Chief Judge had "overreacted" to the distressing nature of the evidence displayed so graphically on the video tape.

107. It is, of course, a most unusual feature of any case to find that the appellant himself has recorded his offending, particularly offending of this nature given the age of the victims; and as counsel for the respondent submitted to us:-

"A viewing of the video tape of the rape offences against K reveals the gravity of these offences. His Honour had the unusual "benefit" of being able to see the crimes actually being committed. The video tape captures in a way that words never could, the appellant's total disregard for his victim. The video tape shows the appellant using K as an object to satisfy his sexual desires in a most cruel and callous manner. He paid no regard to her cries of pain and pleas to stop, instead progressing to more aggressive and intrusive sexual conduct. Some conduct appeared to have no purpose other than to totally degrade and humiliate K. As his Honour noted, the appellant seemed intent on testing the limits of her physical capacity. The appellant's video taping of this incident could only further humiliate his victim, and it is submitted constitutes an aggravating feature."

There is much force in this submission: to view the tape recording is indeed to see powerful evidence of the seriousness of the offending.

112. Appellant's counsel, however, sought to turn this to advantage. Thus, while "the video tape captures in a way that words never could" the appellant's total disregard for his victim, appellant's counsel urged that a sentencing judge might therefore overreact. While the tape provided, he agreed, an unusual opportunity to see such offending as it happened, it must not be allowed to work a substitute for a balanced judgment about the offending which, in the ordinary case, would be described only in words. Despite abandoning ground 4, we think that counsel was disposed to suggest that his Honour did overreact when sentencing and in so doing had handed down sentences beyond what otherwise would have been regarded as appropriate. For instance, he said, in R. v. P.B.W. the children were younger and the offending was worse, and so too in R. v. B.A.B.; yet in the first the total effective sentence was 11 and a half years' imprisonment with a non-parole period of 8 years and, in the second, a total effective sentence of 12 years' imprisonment with a non-parole period of 8 years. But of course B.A.B. was a Director's appeal and, as the Chief Judge himself remarked when sentencing on this occasion, there were factors in B.A.B. going in mitigation that were not present here. More to the point perhaps is the opinion expressed by the Court in R. v. R.J.E.[6], that 10 years' imprisonment was not inappropriate for the forcible penile/vaginal rape of 15 year old who had fallen asleep.

115. In determining sentence a judge is directed by the provisions of Parts 2 and 2A of the Sentencing Act 1991 to have regard to a range of relevant considerations. One important factor is the requirement imposed by s.5(2)(c) that the judge assess the nature and gravity of the offence. The task in making that assessment in a case involving sexual offences, especially where the offences were committed against young children, is a difficult one. In most instances, especially where a plea of guilty has been entered, the judge will make the assessment of the nature and gravity of the offences by reference to written statements and transcript of evidence from the committal. That material may be supplemented by a VATE tape and by expert or other evidence which details the nature and gravity of the offending and addresses the effect of the offending conduct on the victim. Of particular importance for the judge's evaluation will be the words of the victim, including the contents of a victim impact statement. Notwithstanding the availability of all that material, however, the judge may still have a limited appreciation of the nature and gravity of the offences. Victims of crime are often incapable of conveying, with appropriate vividness, the true level of the seriousness of the conduct. On the other hand, the judge has to guard against the possibility that the words of the victim might overstate the nature and gravity of the situation, or might attribute to the conduct of the accused person consequences for which there might be multiple causes.

118. The task of making a proper evaluation of the nature and seriousness of the offences is an important one, not only to ensure that the sentence reflects the gravity of the individual case in a way that is fair to both victim and offender but also to ensure that as between victims and offenders in different cases the courts are properly weighing the nature and gravity of the offences against sentencing standards. In evaluating the nature and gravity of the offences in this case, the sentencing judge was not confined by the written word (as supplemented by imagination and judicial experience of similar cases). The video tape of the offences comprising counts 6 to 11 provided an appallingly precise record of the depravity and cruelty of the appellant 's conduct on that occasion. The judge was entitled to give full weight to that evidence in determining sentence. At the outset of the video recording the victim of the rapes is shown smiling; but she said in her statement that that had been demanded of her by the appellant before the taping commenced and the reality of her ordeal soon became terribly apparent when from an early point in the video tape she was seen to be in continuing pain and begging the appellant to stop what he was doing. He showed no concern at all for her agony, and proceeded to perform even more cruel and humiliating acts upon her.

121. The evidence on the video tape, and the very fact that the appellant chose to film his depraved conduct, carries with it a danger that the sentencing process will be unbalanced by producing an emotional reaction to the video taped offences in comparison to those other offences for which there is not such evidence. We do not say that any of the sentences imposed in this instance, though stern, were manifestly excessive, either individually or when taken together; most, if not all, were probably within range (our only hesitation being in respect of counts 6 to 11) and the orders for cumulation may have been lenient, given the status of the appellant as a serious offender after count 2. But that said, we have reached the conclusion, albeit with some hesitation, that an imbalance did result in this case when his Honour came to sentence on counts 6 to 11, an imbalance which is shown, we think, by comparing the sentences imposed inter se.

124. An analysis of the individual sentences imposed on the 14 counts on Presentment P02470110 shows that generally speaking his Honour fixed four, six and seven years' imprisonment as an appropriate term for the offences involving penetration by the penis of the victim's mouth, her vagina and her anus respectively. That was subject to this: that, when sentencing for the tape-recorded rapes, his Honour added at least three years for the matters going in aggravation. Thus, on count 9 (penis into mouth) the sentence was seven years, on count 10 (penis into vagina) nine years and on counts 7 and 11 (both counts of anal rape) 10 years. Only counts 6 and 12 drew heavier sentences and both were counts of penetrating K with the cucumber (count 6 the vagina and count 8 the anus) and for these offences the appellant was sentenced to terms of 10 years and 12 years respectively, thereby adding yet a further one or two years to the sentences imposed.

127. Thus, the sentences imposed on counts 6 to 11 are all significantly higher than any of the other sentences imposed on the presentment. (Count 8, for instance, is some five years more than the sentence imposed on, say, count 13, a count of incest per annum). Yet those other offences are all very serious, involving in the main like acts of penetration and in some cases against children only 10 or 12 years old. Count 2, for example, is a case where an offence of incest occurred when the young child was screaming in pain, and count 5, is a representative count of incest which reflects sexual intercourse occurring on every one of the birthdays of the child from age 14 to 19. Counts 12 to 14 involved 3 counts of incest on a child aged between 10 and 12 years, the last offence occurring after the date on which the offences on counts 6 to 11 occurred with the child's older sister. Counts 12 to 14 involved acts of penetration by penis of the child's vagina, anus and mouth, and the highest sentence for those three offences was 7 years. The variation cannot be explained by virtue of the status of the appellant as a serious sexual offender, since he had that status for all offences after count 2.

130. At the time of the offences which are shown on the video tape the victim was 19 years old. As terrible as those offences were, and whilst recognising that they had some features (in particular the use of the cucumber) which would have produced higher sentences than for other offences, we find it difficult to accept that they warranted sentences so much higher than the offences against the children when they were much younger. (No appeal has been brought by the Director of Public Prosecutions to contend that the other sentences imposed were manifestly inadequate.) Obviously, all of the offences on the presentment were extremely serious and inevitably attracted sentences in the high range. They were committed over a period of eight years against three children, all sisters in the one household and in circumstances of gross breach of trust. Notwithstanding those considerations, there were some matters going in mitigation: that the appellant did plead guilty (for what that was worth); that there was some remorse, albeit limited, and some allowance to be made for the prospect of rehabilitation, albeit modest; that the appellant had no prior convictions for related offences; and finally that he would have to serve most of his sentence in protective custody. And in all the circumstances we are persuaded that the sentences on counts 6 to 11 reveal a marked imbalance which warrants appellate intervention.

134. Accordingly, the sentencing discretion is reopened generally. We see no need to consider again the sentences imposed for the offences of dishonesty (that is, the offences on Presentment C0202896), but we have reconsidered the sentences imposed for the sexual offending. The task of determining appropriate sentences in this case is a particularly difficult one. It is important to appreciate that the order in which the charges appear on the presentment is not chronological and, also, that some of the offences are representative counts. When those matters are taken into account, it might well have led us to conclude that in some instances, given for instance the period over which the offending was committed, the age of the victims and the breach of trust involved, the sentence should have been higher than that imposed below; in other cases, it might perhaps have been less. Indeed, there are so many unusual features of this case that the sentences which we are imposing will provide little universal guidance for sentencing on similar offences.

137. We have already mentioned the matters going in mitigation and we bring those to account. His plea of guilty to the sexual offending, for instance, whether or not driven by the discovery of the tape recording, still served to save his victims the distress of reliving their experiences when giving evidence at either committal or trial. At the time of his sentencing in the County Court the appellant had spent all of his time in custody under protection, spending up to 23 hours a day in his cell. As to the time before his arrest, he had a reasonable employment history, given that injury had interfered with his employment. Born in New Guinea, he first came to Australia as a boy for education, later staying permanently and being joined by his mother and some siblings with whom he now has limited contact. He has few close relatives in Australia but at the time of sentencing he still had the continuing support of a former partner and their (by now) adult son. As his Honour noted, the appellant is not altogether without prospects of rehabilitation.

140. After much thought we think it appropriate, although we are re-sentencing, simply to confirm the sentences imposed on all counts other than 6 to 11; for they are broadly speaking the sentences that we ourselves would have imposed. In re-considering the sentences imposed on counts 1, 2, 4 and 5, we have borne in mind that the maximum sentences were lower at the time of the relevant offending than nowadays; but that has not led us to conclude that any of those sentences should be reduced, notwithstanding that the Chief Judge sentenced upon false information about the applicable maximum. With respect to counts 1, 2, 4 and 5, we consider that the sentence imposed by the judge was in each instance appropriate, having regard to the maximum sentence which in fact applied at the time of the offence.

143. As to counts 6 to 11, however, we would reduce the sentences imposed below, given what we see, with respect, to have been the imbalance that intruded. On these counts we would resentence the appellant as follows: on count 6, to 8 years' imprisonment; on count 7, to 6 years'; count 8, 10 years'; count 9, 6 years'; count 10, 8 years'; and on count 11, to 9 years' imprisonment

146. In making orders as to cumulation, it is appropriate to adopt the course generally adopted by his Honour. Thus, we would order that two years of the sentence on count 3, one year of the sentence on count 5 and two years of the sentence on count 13 be served cumulatively on each other and upon the sentence imposed on count 8; otherwise, having regard to principles of totality and proportionality, we think it appropriate that all sentences be served concurrently. The effective sentence for the offences on Presentment P02470110 is then of 15 years' imprisonment.

149. As already adumbrated we would simply confirm the sentences imposed for the offences of dishonesty covered by Presentment No.C0202896, including the order that one year of those sentences be served cumulatively with the sentences imposed for the sexual offending. The end result is a total effective sentence of 16 years' imprisonment. We would order that 13 years be served before the appellant becomes eligible for parole.

[1] [2002] VSCA 93.

[2] [1999] VSCA 79.

[3] [2003] VSCA 144.

[4] Court of Appeal, unreported, 18 March 1998, at pp.5-6, 11.

[5] [2003] VSCA 156 at [22].

[6] [1999] VSCA 79 at[7], [9].