R v D M [2007] VSCA 155

Court of Appeal (Vic)|2007-08-01|Before: BUCHANAN and NETTLE JJA and WHELAN AJA

CRIMINAL LAW - Conviction - Incest, indecent act with a child under 16 - Guilty plea -- Whether Applicant's conduct could amount to incest at law given depositions - Application for leave dismissed.

CRIMINAL LAW - Sentence - Whether erroneous sentence on "representative" counts - Manifest excess and totality - Application for leave dismissed.

**1 I will ask Whelan AJA to deliver the first judgment.

2 By a presentment filed on 16 November 2005, the applicant was charged with 13 counts of committing an indecent act with a child under 16 and four counts of incest. The applicant pleaded guilty to all counts and was sentenced in the County Court on 11 July 2006. The applicant now seeks leave to appeal against conviction on one of the counts to which he pleaded guilty (count 8), and also seeks leave to appeal against his sentence.

3 I will not set out the circumstances of the various offences in any detail. The sentencing judge outlined the facts relevant to the various offences and, save in relation to count 8, it is not suggested that the judge's outline, which closely followed a document prepared by the Crown entitled "Summary of Prosecution Opening" which was tendered as Exhibit B on the plea, was inaccurate.

4 The offences began in 1995. The first victim was a girl who was at the time the applicant's neighbour and who was then in Year 7. A friend of hers, who was also in Year 7, was the second victim. Counts 1 to 5, which are all offences of committing an indecent act with a child under the age of 16, concern this period of offending.

5 The applicant commenced a de facto relationship with the mother of the other two victims of the various offences (who I will call X and Y) in 1997. Two counts of committing an indecent act with a child under 16, between 6 August 1997 and 5 August 1998 (counts 6 and 7), concerned Y. Y at that time was a seven-year-old girl in Grade 3.

6 The first incest count is count 8. The relevant conduct occurred in 1999, and Y, who was then eight years old, was the victim. I will return to the circumstances of this count. This is the count in relation to which it is sought to appeal the conviction, notwithstanding the plea of guilty.

7 Two further offences of committing an indecent act with a child under 16 (counts 9 and 10) occurred in 1999, and Y was again the victim. Between 6 August 1999 and 5 August 2000, two further offences, one of committing an indecent act with a child under 16 (count 11) and one of incest (count 12) occurred. Y, who at this point was nine years old, was again the victim. On 24 March 2001, two offences of committing an indecent act with a child under 16 (counts 15 and 16) and one offence of incest (count 17) were committed by the applicant. The victim on this occasion was Y's older sister, X. She was then twelve years old. The last offences were committed between 3 March and 28 March 2003. One offence was committing an indecent act with a child under 16 (count 13) and the other was incest (count 14). The victim was Y. X and Y's mother, who by this stage was married to the applicant, had died on 3 March 2003.

8 The trial judge sentenced the applicant to six months' imprisonment in relation to all of the offences of committing an indecent act with a child where the conduct concerned touching the child on the breast or genitalia over the clothing. These were counts 1, 2, 3, 6, 7, 9, 15 and 16. The trial judge directed that one month of the six-month sentence on three of these counts (counts 1, 6 and 15) be cumulative with the sentence imposed on count 8. The cumulation directions concerning these offences were made in relation to the offence which was the first offence where the victim was the neighbour in Year 7 (count 1), the first offence against Y (count 6) and the first offence against X (count 15). The total of the portions of these sentences which were directed to be cumulative is three months.

9 In relation to the offences of committing an indecent act with a child under 16 where the victim was touched on the skin, as opposed to over the clothes (counts 4, 5, 10, 11 and 13), the applicant was sentenced to 12 months' imprisonment on each count. In relation to each of these offences, a direction for cumulation of two months' imprisonment was made. Thus, the total portions of these offences which were directed to be cumulative is 10 months.

10 Each of the incest counts (counts 8, 12, 14 and 17) involved, subject to the issue concerning count 8 to which I will turn in a moment, digital penetration of the victim's vagina. Y was the victim on three occasions and X the victim on one. Y was eight years old at the time of the first offence, nine years old at the time of the second and twelve years old at the time of the third. X was twelve years old at the time of the offence committed on her. The trial judge sentenced the applicant to imprisonment for a term of three years six months on each of these counts. The sentence on count 8 was treated as the head sentence. The trial judge directed cumulation in relation to one year of the sentences on each of counts 12, 14 and 17. Thus, the portions of the sentences imposed on the incest counts, other than count 8, which was directed to be cumulative with the sentence on count 8 totalled three years.

11 The total effective sentence passed on the applicant was seven years seven months. The sentencing judge fixed a non-parole period of four years nine months.

12 The applicant seeks leave to appeal against his conviction on count 8. The applicant contends that a miscarriage of justice occurred as a result of the applicant's plea of guilty on count 8 and the acceptance of that plea, the recording of a conviction and the passing of a sentence on that count, in circumstances where "the evidence in the depositions did not disclose that sexual penetration had occurred".

13 The reference to the evidence in the depositions is a reference to the statement of the victim, Y. Relevantly, the passage in her deposition reads as follows:**

"I was going to [a school] at the time and I remember that I was in Grade 3 and my teacher was [name deleted]. I think I was eight years old. I remember that I was having a bath and ...[DM] came into the bathroom. He said to me, 'You're a strong girl and brave.' He then reached into the bath with his right hand and he tried to put his finger into my vagina. I started to cry and I told him that it hurt too much. He then stopped and walked out of the bathroom. I finished off my bath and dried myself. I then got into my pyjamas and we had dinner. I didn't tell anyone what had happened. I remember that most times I had a bath, ...[DM] would come in and touch my vagina and try to put his finger inside me. I don't think his finger did go in, but he tried. About six months later he stopped coming into the bathroom with me."

14 Under s 44 of the Crimes Act 1958, the crime of incest involves, amongst other things, an act of sexual penetration. For these purposes, sexual penetration is defined by s 35 of the Act as, amongst other things:

"the introduction (to any extent) by a person of...a part of his...body (other than the penis) into the vagina...of another person."

"Vagina" is defined so as to include the external genitalia.

**15 The submission now made is that it is clear that Y's statement did not support the count of incest by digital sexual penetration as alleged in count 8. Affidavit material has been filed to the effect that the applicant was not advised of this circumstance before pleading guilty, and that the applicant did not remember the offending but pleaded guilty on the advice of his lawyers.

16 On the plea hearing, counsel for the Crown had made it clear that, in relation to count 8, the Crown relied upon the width of the definition of sexual penetration. In response to a query from the judge in relation to this issue, counsel for the Crown had observed: "As we know, the penetration only has to be a slight penetration." The trial judge reflected this approach when describing the circumstances of count 8. He said:**

"Count 8 is a count of incest. At the time, Y was eight years old. She was in the bath, and you came into the bathroom, reaching into the bath, and tried to put your fingers inside her vagina. The court was told there was limited penetration."

**17 The applicant relied upon R v Coffey[1], where this Court referred to the judgment of the English Court of Appeal in R v Forde[2]. In R v Forde, the English Court of Appeal suggested that, after a guilty plea had been recorded, the court would only entertain an appeal against conviction if it appeared that either the applicant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it, or if "upon the admitted facts, he could not in law have been convicted of the offence charged"[3]. Reference was also made in R v Coffey to the fact that in Victoria those alternatives are not exhaustive, and that the Court of Appeal retains a duty to intervene if there has been a miscarriage of justice. In that connection, reference was made to R v Tait[4], R v Parsons[5] and R v El-Kotob[6].

18 I do not accept that either of the alternatives referred to in R v Forde apply here, or that there has otherwise been a miscarriage of justice. Even if Y had given evidence in exactly the terms set out in the deposition which I have quoted above, in my view it would have been open for a jury to conclude that there had been penetration to some extent of the vagina, defined for these purposes to include the external genitalia. In my view it would have been legitimate for the jury to conclude that it would not have been possible for the applicant to have caused pain to Y whilst trying to put his finger in her vagina, without to some extent, however slight, penetrating her external genitalia. This is not a case where on the material put before the court it can be said that the applicant could not in law have been convicted. Further, but for the plea of guilty Y would have given evidence. She had not given evidence at the committal. But for the plea of guilty, she could have given a fuller description of what occurred.

19 It is important that pleas of guilty not be re-opened unless there are exceptional circumstances which compel that course[7]. There are no such circumstances here.

Ground 1: counts erroneously treated as rolled- up or representative

20 In the trial judge's sentencing reasons reference was made in relation to four counts to the fact that the conduct which was the subject of those counts had happened on numerous occasions. The counts were count 5 (one of the counts concerning the friend of the neighbour), count 8 (the first incest offence involving Y in the bath), count 11 (the indecent act offence involving Y in the bedroom referred to as "special moments"), and count 12 (incest as a result of digital penetration of Y). The trial judge makes these observations at paragraphs 6, 8, 10 and 11 of the sentencing reasons. The observations made reflected the Crown summary as tendered and as opened by the Crown. No complaint was made about the summary or about the way in which the Crown opened the case by counsel for the applicant on the plea.

21 It is now submitted on behalf of the applicant that these counts were wrongly treated as either rolled-up counts or as representative counts. It is submitted that it was not made clear which of these characterisations was being given to these counts and that, in any event, it was inappropriate to treat any of these counts in this way in the absence of a specific agreement to that effect by the applicant. The submission was that there "appears to have been no such agreement in this case". It was said that the sentences reflect an impermissible reliance on the fact that certain conduct occurred on numerous occasions.

22 The relevant counts are not rolled-up counts. Rolled-up counts are counts where a number of offences are rolled up into a single count. In other words, the count itself will refer to a period of time or other circumstances which show that it is encompassing more than one event. These counts do not do that. There is nothing in the sentencing judge's reasons to suggest that they were treated as if they did.

23 Representative counts can give rise to complicated issues which were addressed at length by this Court in R v SBL[8]. A person cannot be sentenced for crimes of which he has not been found guilty or to which he does not plead guilty. An accused might, however, as part of an agreement with the Crown and in order to reduce the number of charges which the person faces, agree to plead guilty to a count which the court will be told is representative of other uncharged acts. In R v SBL this Court accepted that that was a legitimate approach and that the sentencing judge was entitled to have regard to the whole picture presented by the offender's conduct.

24 In R v SBL it was not unequivocally accepted that the fact that certain counts are agreed to be representative is a factor which can be used as an aggravating feature. Reference to similar incidents other than those the subject of the charges may, however, also be relevant in another way. The Court may be so informed so as to prevent an accused receiving leniency to which he or she is not entitled on the erroneous basis that the counts concerned conduct which were isolated incidents. Reference was made in R v SBL by Phillips CJ and Ormiston JA to authorities where uncharged acts were treated as relevant in this way[9]. The matter was addressed in some detail by Spigelman CJ in R v JCW[10].

25 It is unnecessary to resolve these difficult issues here because, whilst the sentencing reasons refer to the fact that some specified conduct had occurred on other occasions, there is no reference to that as an aggravating feature and the sentences passed confirm it was not treated as an aggravating feature. The same sentences were passed on the indecent act offences where the victim's skin was touched and where the observation about other occurrences was made (counts 5 and 11) as the sentences passed on those where it was not (counts 4, 10 and 13); and, similarly, on the incest counts, the same sentences were imposed on the counts where the observation was made (counts 8 and 12) as where it was not (counts 14 and 17).

26 It was appropriate for the trial judge to refer in the sentencing reasons to what was in the undisputed summary which was tendered on the plea. I do not consider that the sentencing judge made any error by accurately repeating what was in the undisputed summary which was tendered without objection and implicitly accepted by the applicant and which was repeated in the Crown opening.

27 None of this detracts from the proposition that the sentence on each count must still be proportionate to the conduct which is the subject of that count, and the sentence is still subject to the overriding principle of totality.

28 It was submitted that the trial judge made two errors in relation to the treatment of count 8 on sentence. First, it was submitted that the trial judge failed to take into account the fact that if any sexual penetration occurred in relation to count 8, it could only have been to the slightest degree, and that accordingly the judge ought to have treated the count in a different way to the other incest counts. This led, it was submitted, to the further error that the sentence on count 8 was used as the base sentence, when the sentence on one of the other more serious offences ought to have been used. Reference was made in this respect to R v MDB[11] and to R v JG[12].

29 I cannot accept that error is revealed in the manner in which the trial judge treated count 8. Count 8 was the first of the incest offences. It was committed against the youngest victim, Y, when she was eight years old. I do not accept that the sentencing judge was in error in treating count 8 as being equally serious with the other incest counts (counts 12, 14 and 17). Nor is this a case such as those dealt with in R v MDB and R v JG, where the trial judge has created distortion through giving a less serious offence undeserved primacy by making it the base count. It does not seem to me that the sentencing judge made any error by treating the four incest counts as equally serious, and it does not seem to me that it was an error by the judge to treat the sentence on the first of those counts as the head sentence.

30 The applicant submits that the sentences here were manifestly excessive and infringed the principle of totality. It was submitted that the sentences failed to sufficiently reflect the applicant's remorse; his guilty pleas; his absence of relevant prior convictions; his mental state, substance use and other personal circumstances; the evidence of the psychologist, Mr Watson-Munro; the finding that there was little risk of re-offending; and the applicant's prospects of rehabilitation.

31 In relation to the individual sentences, it was submitted on behalf of the applicant that the individual sentences, whilst heavy, were not manifestly excessive, save for the sentence on count 8. I have already dealt with the submissions particularly directed to count 8. It was submitted that the total effective sentence and the non-parole period were outside the permissible range.

32 The applicant was 30 years of age when the offences began and was almost 38 years old when the last offence was committed. He is now 42 years old. He was educated to Year 11. He worked as a storeman after leaving school and at the time of sentence he was self-employed as a courier in a business which he had established and which was apparently going well. He had suffered a serious knee injury in 1990, which had meant he had been off work for a long period of time. It was after he returned to work that he met X and Y's mother. As indicated earlier, they lived together whilst these offences against X and Y were committed.

33 Mr Watson-Munro reports a history of alcohol abuse and other substance abuse, which, it seems, was exacerbated after X and Y's mother was diagnosed with cancer, a condition from which she died in March 2003.

34 The applicant is an adopted child. He has two sisters and one brother. His father died when he was young, and Mr Watson-Munro reports that that untimely death had a dramatic impact upon him. The applicant reported to Mr Watson-Munro that he was himself abused as a child by a Catholic priest.

35 Mr Watson-Munro says that the applicant suffers from low self-esteem and that he has what Mr Watson-Munro describes as "developing insight" into his offending behaviour. Mr Watson-Munro says that insight appears to be genuine[13].**

**36 These offences were very serious. They took place over a period of eight years. Four young girls were victims of the applicant's offending. Two of them were in his parental care. Many of the offences against the two girls in his care took place whilst their mother was dying of cancer, and two of the offences took place soon after she had died.

37 Y, who was only seven years old when the abuse started, says the following in her victim impact statement:**

"The crime committed was betrayal of trust and has had a big impact on my life. I was always afraid of adult men, including teachers. I have nightmares, flashbacks and the loss of appetite."

Whilst her mother was sick and dying, the applicant was abusing her. Y says:

"I didn't tell Mum because I was embarrassed and because Mum was sick. I didn't want to worry her by telling her what was happening."

**38 X's victim impact statement reveals that she is still "sickened" to think of the betrayal of trust involved in the offences committed on her, a betrayal which she rightly sees not just as a betrayal of her own trust but of her mother's trust as well. The statement reveals that X is now guilt-ridden over what she sees as her failure to protect her younger sister. X is not to blame for what happened to Y; the applicant is. X too still suffers from a fear of adult males and from nightmares.

39 I have read Mr Watson-Munro's report and read the oral evidence which he gave. I must say that it seems to me that the sentencing judge in the sentencing reasons adopted the most positive interpretation of that evidence in favour of the applicant which was open.

40 The trial judge took into account all of the mitigating factors put on behalf of the applicant.**

**41 In all the circumstances, I cannot see error in the sentences imposed by the sentencing judge or in the reasons which he gave for those sentences.

44 As has been explained, this application for leave to appeal against conviction on count 8 is put on the basis that, although the applicant pleaded guilty to that count, a jury could not have found him guilty beyond reasonable doubt on the evidence likely to have been given by the complainant in accordance with her deposition. Like the other members of the Court, I reject that contention. Whatever ambiguity may have inhered in the deposition, and I am not persuaded that there was any, it may be assumed that the plea was entered on the basis that such ambiguity would be resolved in viva voce evidence unfavourably to the applicant, and in my view that assumption was well founded.**

45 The grounds of application for leave to appeal against sentence are no more convincing. In particular, in my view, there is no apparent error in treating the sentence imposed on count 8 as the base sentence. As has been observed, it was the first offence, it hurt the victim, and it was committed in circumstances which constituted a gross breach of trust, at a time when the victim was particularly young and vulnerable. Nor do I accept that any of the individual sentences, total effective sentence or non-parole period are manifestly excessive. It is true that the applicant pleaded guilty at the first opportunity, and that he has shown true remorse, and it may also be that his prospects of rehabilitation are good. But in my view it is apparent that the judge has substantially moderated the sentence in order to allow for those considerations. These were particularly serious offences, committed over a protracted period, and productive no doubt of untold emotional harm and suffering. They warranted condign punishment.

46 The orders of the Court are that the application for leave to appeal against conviction and the application for leave to appeal against sentence are dismissed.**

[7] R v Reed [2003] VSCA 95 at [2]

[9] [1998] VSCA 144; [1999] 1 VR 706, 710-711, 721, 724

[13] Prior to the hearing of the applications for leave, a number of affidavits were filed from the applicant's family and friends. It seems that they were ignorant of the circumstances at the time of the plea in the County Court. They depose to the fact that, ignoring the conduct involved in these offences, the applicant is a person known by them to be someone of good character. These affidavits, whilst no doubt honest and well meant, do not relevantly affect the issues on the application for leave.

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