R v DHM [1998] VSCA 11

17. It seems the girl was made to lick her mother's vagina, for she said, "I hated the taste. I felt scared. I didn't want to be doing it." The incident lasted for 20 minutes. The learned sentencing judge, who had the benefit of seeing and hearing the witnesses give their evidence, said, in sentencing the applicant:

"I note that there is no suggestion in the evidence in this case that you were in any way forcefully restrained from moving during the course of the activity which is the subject of this count, or that you were forced into submitting to it in any way by your husband. Your counsel has suggested to me that the view that I should take of this incident is that you played simply a passive role in the act that I have described. It follows from the view that I have taken that I find that you were a willing participant in that incident, and this finding reflects the jury's verdict in this case."

21. The daughter the victim of the crime of incest was aged between 13 and 15 years when the offence occurred. In her evidence the daughter said that she had her usual nightly shower and went into the loungeroom where the rest of the family were. The applicant said her daughter smelled. According to the girl:

"I went into the shower, showered again. I know that I showered properly. I come back out and she said it again. She said 'If you don't do it properly this time I'm going to do it'. She took me back into the shower, she got the - she got the toothbrush and started to put the toothbrush inside me and wash me."

25. The applicant put the toothbrush into her daughter's vagina. When she was asked to describe the applicant's demeanour and state of emotion, the girl said, "She was vicious".

28. The first ground of appeal is that the sentence is manifestly excessive. I shall return to that ground later, and to the second ground, which is that "the learned sentencing judge erred in not imposing a sentence which reflected a greater disparity than eight months between the total effective sentence of 36 months and a non-parole period term of 28 months".

31. The third ground of appeal is: "The learned sentencing judge erred in stating that she could find no matters of mitigation, when a transcript of the depositions of the daughters contained material of mitigation." When expanded in oral argument, the third ground was not so much a complaint that the learned judge did not find any mitigating factors, as that she ought to have found an explanation as to the circumstances in which the offences occurred. The ground is based upon the following passage in the learned judge's sentencing remarks:

"You have shown no remorse for your activities, nor given any explanation as to why they occurred. In your trial you maintained your innocence in relation to both these matters, as of course you were entitled to do. This however, leaves me with no explanation at all as to the circumstances in which the events for which I have to sentence you came to be committed."

35. Counsel for the applicant contends that there is an explanation, which is to be found in the evidence given during the committal by the applicant's daughters of the discipline backed by violence which RM imposed upon his family. For example, one daughter, when asked why she did not complain, said, "I was too scared of [RM]. He used to beat up my mother all the time." That evidence was corroborated by her sisters, one of whom said that there was no point in complaining to her mother about sexual abuse by RM, as "she done everything he said". There appears little doubt that the sexual abuse to which the children were subject was orchestrated by RM, and that the role played by the applicant was subservient to that of her husband. However, in my opinion the learned judge was correct in saying that the offences of which the applicant was convicted were unexplained. In the case of the act of gross indecency, the applicant was at least passive. She as well as her husband called out to her daughter. The applicant did not even make a token protest. In the case of the toothbrush incident, the applicant alone appears to have initiated it and performed it. RM played no part in that offence. Fear of RM did not provide a satisfactory explanation for the role played by the applicant in the offences of which she was convicted, and to sentence the applicant on the basis that she was the victim of duress by her husband would be to deny the jury's verdict.

38. The fourth ground of appeal is that the learned sentencing judge should have acceded to the submission of the prosecutor, who, having taken instructions, stated that a wholly suspended sentence was not inappropriate. Of course, the learned judge was not bound to accede to the prosecutor's view of an appropriate sentence. If the sentence in fact was within the sentencing discretion of the learned judge, it is not to the point that the prosecutor had no objection to another sentence, or even advocated another sentence.

41. That leads me to the question whether the sentence is manifestly excessive. I do not think that it is. The crimes were abhorrent, for they exhibited a willingness to treat adolescents and their bodies as the playthings of adults, without any regard to the effect on the victims of the acts they were forced to perform and to suffer. The community's interest in the family unit, and the proper exercise of the very large powers that parents necessarily have, demands that crimes of this nature be treated severely. I do not consider that the sentence was outside the limits of the discretion of the learned sentencing judge.

44. The fifth ground of appeal is - "That the applicant has made a signed statement to Detective Carson and has informed him that she is prepared to give sworn evidence in respect of the matters contained in the statement. The daughters of the applicant have also made affidavits indicating their reconciliation with the applicant, and accordingly there is fresh evidence which the Court of Appeal should act upon in re-sentencing the applicant." The applicant seeks to rely upon three affidavits sworn in July this year. One affidavit is by a Detective Senior Constable of Police, who deposes that three months after she was sentenced the applicant made a statement dealing with RM organising sessions in which the applicant engaged in sexual intercourse with strangers introduced by her husband, and with RM making one of his stepdaughters available as a prostitute. The other affidavits were by the victims of the crimes of which the applicant was convicted. They deposed that they had visited the applicant in prison and that, removed from the influence of her husband, she was remorseful and loving. All the daughters wished to resume a normal family relationship with the applicant upon her release from prison.

47. The admissibility of evidence of events occurring after sentence was considered by the Court of Appeal in R. v. Babic (1997) 93 A.Crim.R. 254. In that case the applicant sought to rely upon evidence of a back injury sustained after he was sentenced. The Court held that the evidence was inadmissible. Brooking, J.A., who delivered the leading judgment, said, at p.256:

"Evidence of an event occurring after sentence, which is said to make the sentence passed excessive, will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion but that it will not be received because it is inadmissible. The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court."

See also R. v. Norman and Briggs (unreported, Court of Appeal, 17 April 1998).

52. There is an exception to that general rule. Evidence of later events will be admitted where the evidence discloses the true significance of facts in existence at the time of sentence. Thus, in R. v. Eliasen (1991) 53 A.Crim.R. 391, evidence was admitted on appeal of the result of a test for HIV made prior to the sentence. See also R. v. Smith (1987) 44 S.A.S.R. 587. Again, fresh evidence which discloses a new development relating to facts in existence at the time of sentencing will be admitted provided that the matter to which the new evidence relates was relevant to sentence and available for consideration by the sentencing judge. Thus, in R. v. Rostom [1996] VicRp 60; [1996] 2 V.R. 97, evidence of threats and the placing of the applicant in protective custody, while new events, related to the informer's discount which the applicant had earned at the time of his sentence and was available to be taken into account in determining his sentence. The applicant had earned the reward, which is to be given to encourage persons to give information to the police in order that others might be brought to justice. The later events entitled the applicant to an increased discount because a consequence of his assistance rendered his incarceration more onerous than usual.

55. In the present case the statement made by the applicant to the police and her reconciliation with her daughters were events relevant in themselves, and not relevant for the light they could throw on the circumstances which existed at the time of sentence. Nor were they a new development of facts in existence at the time of sentencing. The offer of information and the reconciliation were new events that occurred after sentence and did not build upon facts in existence at the time of the sentence.

58. I come back to the second ground. That was concerned with the minimum period fixed by the learned judge. The period between the head and minimum sentences was unusually short, and it was not explained by the learned sentencing judge. In my view there were two circumstances that weighed in favour of a greater disparity than normal between the head term and the minimum term. The first was the lack of any prior convictions on the part of the applicant. The second was the fact that for the next decade RM will be removed as an influence upon the applicant. After giving full consideration to the matter, the Crown said that a wholly suspended sentence was not inappropriate. As I have said, such a concession cannot bind a trial judge, but it is an additional factor in this case and inclines me to the view that it would have been desirable for the judge to explain why she was fixing an unusually short period between the head sentence and the minimum term.

61. In my view, it appears that the learned sentencing judge did not give sufficient weight to the absence of prior convictions and the removal from her life of the man who was principally responsible for the regime that operated in the household in which she lived and was consistent with her offences. Those circumstances made the applicant's prospects of rehabilitation better than normal. I refer to R. v. Krasnov and Shlakht (1995) 82 A.Crim.R. 92.

64. I would grant the application and hear and determine the appeal instanter. I would sentence the applicant to the same head sentence as that imposed by the learned sentencing judge, but I would alter the period to be served before the applicant is eligible for parole to a period of 18 months.

79. The formal order of the Court will be that the application for leave to appeal against sentence is granted. The appeal is treated as having been instituted and heard instanter. The appeal is allowed.

82. The sentence imposed by the sentencing judge is quashed as to the fixing of the non-parole period. In lieu of the sentence imposed by her Honour, we direct that the applicant be sentenced as follows. The same sentence is imposed in respect of each count on the presentment as those that were imposed by the learned sentencing judge. The orders for cumulation will be confirmed. The total effective head sentence is therefore three years' imprisonment. In lieu of the non-parole period fixed by the judge below, we direct that the applicant serve a minimum period of 18 months before being eligible for parole.

85. We declare pursuant to s.18 of the Sentencing Act that a period of 360 days has already been served by the applicant pursuant to the sentence and we direct that that declaration be noted in the records of the Court.