R v D W [2006] VSCA 196

Criminal law - Sentencing - Plea of guilty - Sexual offending with a child under 16 years of age - Victim grand-daughter of respondent - Whether sentence of four years with a non-parole period of three years manifestly excessive - Whether judge gave sufficient weight to deteriorating health and expressions of remorse - Appeal upheld - Re-sentenced to three and a half years imprisonment with a non-parole period of two and a half years - Registered as a serious sexual offender pursuant to Sex Offenders Registration Act 2004.

1 On 23 September 2005, the appellant pleaded guilty before the County Court at Melbourne to one count of attempted incest (count 2) and two counts of an indecent act with a child under the age of 16 years (counts 1 and 3). After hearing a plea in mitigation of penalty, the judge sentenced the appellant on count 1 to imprisonment for a term of 18 months, on count 2 to imprisonment for a term of two-and-a-half years and on count 3 to imprisonment for a term of two years. The judge ordered that six months of the sentence imposed on count 1 and one year of the sentence imposed on count 3 be served cumulatively on the sentence imposed on count 2 and on each other, thus making for a total effective sentence of four years' imprisonment, and the judge ordered that the appellant serve not less than three years' imprisonment before being eligible for parole.

2 The appellant now appeals against the sentence on grounds that the judge is said to have erred by sentencing the appellant on count 2 as a serious sexual offender; by sentencing the appellant on an erroneous factual basis, and thus for an offence not charged and disclosing greater criminality than that for which the appellant had pleaded guilty; by finding that the victim's cross-examination at the committal added to her injury and thereby aggravated the appellant's offending; and by making orders for cumulation which it is said are crushing and otherwise manifestly excessive.

3 The facts of the matter may be stated briefly. The offences the subject of counts 1 and 2 were committed in 2000 when the appellant was aged 71 years. His victim was his granddaughter, who was then aged only six or seven years. The appellant was staying overnight at the house of his son, sleeping in the study. In the morning the little girl went into the study in her pyjamas to give the appellant a hug and a kiss. The appellant was lying in bed naked. He invited the victim to play what he called a game. He told her to pull down her pyjama pants and lay herself on top of him. He then placed his penis on the external part of her vagina, before the victim got up. Those are the facts which comprised count 1. The appellant then requested the victim to lie on top of him again, which she did, and he attempted to put his penis into her vagina, but he was unable to do so. He told her to keep what had happened secret from the other members of the family. Those are the facts which comprised count 2.

4 In 2002, the appellant and his wife had separated. He lived alone in a country town in New South Wales and his wife lived in a suburb of Melbourne. The victim was then eight or nine years old and visited her grandmother at her house in the suburb in Melbourne. The appellant was also visiting his wife that day and during the course of the day he invited the victim into the garage. He there sat her on a bench and stood in front of her and exposed his penis, ultimately ejaculating on to the floor. When the victim asked him why he had done that, the appellant replied, "Because you're nice, pretty. This will be the last time that I do something with you." Those are the facts which comprised count 3.

5 In June 2003 the victim told her mother of the offences, and in July 2003, after questioning by the victim's parents, the appellant replied that he regretted what he had done and that he "never went all the way". When, however, he was questioned by police in February 2004, he denied the victim's allegations. A contested committal hearing followed in April 2005, at which both the victim and her parents were cross-examined at length. The matter was then listed for trial, but, the day before trial was due to begin, the appellant offered to plead guilty.

6 In his sentencing remarks the judge noted that the victim had referred in her victim impact statement to the ordeal of having to prepare to give evidence in court and of her relief that she would not have to do so again. The judge observed that the victim's cross-examination at the committal hearing had added to her injury.

7 At the time of sentencing, the appellant was 76 years of age and, as the judge said, he had no relevant prior convictions. He had had a variety of jobs, including tree-felling and as a woodcutter with the Forests Commission. He and his wife had raised four children who were by then all adults, and before offending the appellant had been on good terms with his children and visited them. He had lent money to the victim's father. As a result, however, of the offences, the appellant was denied all contact with his family except for one of his daughters.

8 It was said that the appellant was remorseful, although he had no recollection of his offending. He had undergone heart surgery in 1999 and 2003 and, as a result of contracting an infection, he had spent some months in hospital in those years. He had a history since 2000 of some memory impairment. He became depressed in 2003, and he walked with a stick and became breathless after walking short distances. He took antidepressant and other medication. It was not suggested that his condition was in any way related to his offending, although the judge noted that at the time of the last offending in 2002 the appellant was suffering from some memory loss and ill health.

Ground 1 - Serious sexual offender

9 We begin with ground 1. After the judge passed sentence, he was asked by the prosecutor to make a declaration that the appellant had been sentenced as a serious sexual offender in respect of counts 2 and 3, and after some brief discussion the judge made that declaration. Evidently that was an error. The appellant fell to be sentenced as a serious sexual offender in respect of count 3 alone, although defence counsel said nothing about it at the time. The appellant now contends, however, that the error was such as to vitiate the sentencing discretion in relation to all counts and to require that the sentences imposed be set aside.

10 We do not agree. Plainly enough, if the judge had sentenced the appellant as a serious sexual offender in relation to both counts 2 and 3, the error would have been such as to vitiate the sentencing process. But in our view the judge did not do that. There is no mention in the judge's sentencing remarks of the sort of analysis which is required by ss.6D and 6E. His Honour did not refer to the protection of the community as being the principal purpose of the sentence to be imposed, or refer to the possibility of the imposition of a sentence longer than that which was proportionate to the gravity of the offence, considered in light of its objective circumstances, and his Honour did not cumulate the sentences imposed on counts 2 and 3 in the fashion for which s.6E provides. To the contrary, it is apparent from the sentences which his Honour did impose that it was his intention to impose sentences which were proportionate to the gravity of the offending and to cumulate only so much of the sentence imposed on count 3 upon count 2 as was necessary to reflect the totality of the appellant's criminality.

11 It is true, of course, that the judge declared that the appellant had been sentenced on counts 2 and 3 as a serious sexual offender, and obviously it is a large thing to look, as it were, behind that declaration to the reality of what occurred. But in our view it is plain from the discussion which preceded the declaration that the judge mistook the effect of the declaration as one which was intended to reflect the fact that the appellant had been convicted of Class 1 and Class 2 offences within the meaning of the Sex Offenders Registration Act 2004. The declaration was in error, but the sentence was not.

Ground 2 - Error and aggravation

12 We turn to ground 2. When describing the facts which comprised count 2, the judge said in his sentencing remarks that the appellant had ejaculated into the victim's vagina. The appellant complains that it was not open to the judge to make that finding, or to sentence the appellant on that basis, or, if it were, that the judge made the finding without giving defence counsel an opportunity to be heard on the point.

13 In our view, there is substance in that complaint. When the prosecutor opened count 2, he did so consistently with the offence of attempted incest, in respect of which the appellant had pleaded guilty, which is to say on the basis that the appellant had attempted, unsuccessfully, to place his penis inside the victim's vagina, and his Honour added that the appellant's penis was not erect. The prosecutor did not suggest that the appellant had ejaculated into the victim's vagina. Of course the judge was not necessarily limited to the facts as opened by the prosecutor. Provided there was sufficient evidence, it was open to the judge to find other facts and circumstances of the offending relevant to the nature and gravity of the offending and the moral culpability of the appellant. But it was not open to find facts which aggravated the offending, without first giving defence counsel the opportunity to be heard on them, and unless satisfied beyond reasonable doubt of those facts. Here, as it seems to us, the judge offended both of those principles.

14 His Honour never mentioned the possibility that he might take the fact of ejaculation into account as an aggravating circumstance, and there was nothing to suggest that he might do so. Consequently, defence counsel never had the opportunity to put any submissions on the point. Furthermore, although there was some evidence that the appellant ejaculated into the victim's vagina, it fell well short of proof beyond reasonable doubt. In a VATE interview, the victim said that when the victim had lain on top of the appellant the first time, "stuff had come out of the appellant's doodle and gone into her private parts". But when she was cross-examined at the committal hearing, she said at one point that the appellant's penis had been soft and that she did not see anything coming out of it on that occasion. Then she later changed her evidence again and said that she did see it, and deposed to some other events which on one view of the matters were consistent with the fact of ejaculation.

15 It follows, in our view, that the judge erred in taking into account, as an aggravating circumstance of count 2, the fact, as his Honour found, that the appellant ejaculated into the victim's vagina, and thus that the sentencing discretion in respect of count 2 miscarried.

16 Counsel for the appellant also submitted that, by making the finding about ejaculation, the judge had implicitly found that the appellant penetrated the victim and thus, in effect, that the judge had punished the appellant on the basis that he was guilty of an offence of incest with which he was not charged. In counsel's submission, so to do was contrary to the principle adumbrated in De Simoni[1] that a person is not to be punished for an offence with which he has not been charged.

17 We are not sure whether the judge did do that, and in view of what we have said already about this ground it is unnecessary to decide. It suffices to say that if the judge had found that the appellant penetrated the victim's vagina, that would amount to a finding of incest, and since that is a separate offence with which the appellant was not charged, it could not be taken into account as an aggravating circumstance of the offence of attempted incest.

Ground 3 and 4 - Cross-examination and manifest excess

18 Under cover of grounds 3 and 4, the appellant argues that the judge erred in taking into account that the victim had reported in her victim impact statement the ordeal which she suffered as a result of the need to prepare for and being cross-examined at the committal hearing, and in concluding that the ordeal had added to the victim's injury. It was submitted that the judge treated it as something which aggravated the appellant's offending in a manner that was not properly open and that caused the sentencing discretion to miscarry.

19 We reject that contention. In our view the judge was entitled to take into account, as a factor which limited the discount to be allowed for the appellant's plea of guilty, that the appellant was so little concerned about the effects of his offending upon his granddaughter that he should choose to subject her and her parents to the ordeal of a committal hearing and, worse, prolonged cross-examination. It is one thing to plead guilty at the door of the court when it looks like the game may be up. The law takes the view that that is worth a discount. But it is quite another to plead guilty immediately and thereby save the victims and the community any further burden. That is likely to attract a much larger discount and a good deal more respect.

20 It may be that the judge could have made plainer that he was not treating the conduct of the committal hearing as an aggravating circumstances but only as something which bore upon the discount to be allowed due to the plea of guilty, and as reflecting on the level of the appellant's remorse. As counsel for the appellant pointed out, the way in which the judge expressed himself was unfortunately similar to the fashion in which the trial judge in Siganto[2] expressed himself, and which the High Court found to be an expression of intention to treat the conduct of the defence case as an aggravating circumstance. But, as the High Court made clear in Siganto, they reached that view because the law in the Territory at the time had been that defence conduct could be taken into account as an aggravating circumstance, and thus it was to be assumed that the trial judge had approached the matter on that basis. Here, to the contrary, it goes without saying that an experienced trial judge like the sentencing judge would know that the conduct of an accused's defence is not to be taken into account as an aggravating circumstance but as going only to remorse and discount for plea of guilty, and that the judge would have approached the matter on that basis.

21 It was also submitted on behalf of the appellant that the judge's cumulation of one year of the sentence imposed on count 3 and six months of the sentence imposed on count 1 was excessive, and that it reflected a failure to balance all the relevant considerations, including the appellant's failing physical and mental health, his lack of prior relevant criminal convictions, the imminent decline of his mental faculties, the loss of his capacity to live independently, and his effective banishment by those who are closest to him. Counsel for the appellant argued that those matters, when properly synthesised, ought result in individual terms, a total effective sentence and non-parole period well below those which were set by the sentencing judge.

22 By and large we are not inclined to agree. The judge explained his orders for cumulation in a fashion which, with respect, is logical and compelling. He cumulated a relatively small percentage of the sentence imposed on count 1 on the basis that it arose in the context of the one continuing episode of criminal conduct in which was committed count 2, and imposed a significantly larger percentage of the sentence imposed on count 3, implicitly on the basis that it was separate and discrete from count 3, thus adding considerably to the totality of the appellant's criminality. In our view there is no error in that.

23 Equally, the judge took into account all of the mitigatory considerations to which counsel has referred, explicitly in one form or another in turn, and we see no reason to doubt that his Honour gave them the weight which they deserved. A sentence of three years' imprisonment for attempted incest of a six or seven-year-old child, by her grandfather, is a grave and detestable offence which warrants condign punishment reflecting the need for general deterrence and curial denunciation of socially destructive and abhorrent criminal behaviour. There was also a need to consider the community protection, for, as the judge said, he was unable to say whether the appellant had ceased to be at risk of re-offending. The maximum penalty, as the judge pointed out, was 20 years' imprisonment. The offences of indecent act with a child under 16 were not as grave but were still serious offences, and the facts of the appellant's offending put it, at least, somewhere towards the middle of the range. In the result, in our view, it can only be as a result of giving full scope to the mitigatory considerations mentioned by counsel that the judge came to a sentence on count 2 of only three years and sentences of 18 months and two years on counts 1 and 2.

24 We add, with respect, that we see no error in the way in which the judge formulated the non-parole period. As we have already noticed, the judge was unable to say whether the appellant was at risk of re-offending and, despite the appellant's medical condition, there was at the time at which the sentencing judge dealt with the matter no particular reason to think that his prospects of rehabilitation were exceptional. After all, the appellant had managed to re-offend in 2002 when he was supposed to be suffering from all of the ailments by which he is now afflicted.

25 The considerations which govern the determination of a non-parole period were recently considered at length by this Court in Director of Public Prosecutions v. Josefski[3] and they need not be re-stated here. They have been essayed at length in a number of judgments of Callaway, J.A., to some of which his Honour referred in his judgment in Josefski. It suffices for present purposes to say that we see nothing in what the judge did in this case which offends those principles.

Re-sentencing

26 But for the error made in relation to count 2, there would be no reason, in our view, to interfere with any of the individual sentences or the total effective sentence or the non-parole period. But since the sentencing function is shown to have miscarried in relation to count 2, the sentencing discretion is re-opened in relation to that count and thus in relation also to setting the total effective sentence and non-parole period.

27 Taking into account each of the sentencing considerations to which we have referred, and also the further material which is before us, but was not before the judge, as to the appellant's present medical condition, we are disposed to re-sentence the appellant as follows:

28 On count 1, we would confirm the sentence of 18 months' imprisonment imposed below.

29 On count 2, we would re-sentence the appellant to two years' imprisonment, which we would treat as the base sentence.

30 On count 3, we would confirm the sentence of two years' imprisonment which was imposed below. In formulating that sentence, we have approached the matter on the basis that the appellant is to be sentenced as a serious sexual offender in respect of count 3, and thus we have regarded the protection of the community from the appellant as the principal purpose for which the sentence is imposed. We do not consider, however, that it is necessary to impose a longer sentence than is proportionate to the gravity of the offence in order to achieve that purpose.

31 We would cumulate six months of the sentence imposed on count 1 on the sentence imposed on count 2, but, despite s.6E of the Sentencing Act 1991, we would order that 12 months of the sentence imposed on count 3 be served concurrently with the sentence imposed on count 2, thereby making for a total effective sentence of three-and-a-half years' imprisonment.

32 Finally, having regard to the age and declining medical condition of the appellant, and to what we perceive to be the relatively modest prospects of him re-offending, we would order that the appellant serve not less than two-and-a-half years' imprisonment before being eligible for parole.

33 The orders of the Court will be as follows:

1. The appeal is allowed.

At a glance

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Judgment (6 paragraphs)

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