R v Doran [2005] VSCA 271

"1. The total effective sentence and non-parole period are manifestly excessive.

2. The learned sentencing judge erred in his orders for cumulation and in so doing infringed the totality principle.

3. The learned sentencing judge erred by failing to place sufficient weight on the applicant's volunteered confession."

Particulars of the third ground have been supplied. They are:

"The appellant's confession was made in circumstances where many offences have come to light solely on account of such confession and where the making of the confession was an important part of the applicant's treatment for his condition of paedophilia."

3 The appellant is now 28 years old. He was between the ages of 24 and 25 years when the offences were committed. The first offences to come to light were those the subject matter of counts 13 and 14. They were committed on 11 August 2003. The appellant visited a park in Woori Yallock with his five year old son, who began to play with sisters aged nine and 11 years. The appellant carried a digital camera. He took the younger girl into the bushes at the park and after taking several normal photographs of her, asked her to turn around and then pulled down her pants and underpants exposing her buttocks. The appellant photographed the child's buttocks and then took photographs of her exposed vagina. The appellant and the young girl returned to the swings where the elder girl had remained, and the appellant showed the pictures he had taken to the girls. The appellant invited the older girl to play a game of identifying the parts of the body shown by the photographs. She refused. A further invitation to the younger girl was also refused. The children left the park and told their parents what had occurred. The police were informed and three days later executed a search warrant at the appellant's house. The police found photographs of the young girls. In a record of interview the appellant made full and frank admissions as to his actions.

4 About a month later the appellant telephoned the police officer who had conducted the record of interview and told him that the appellant had committed a number of offences against children. He said that he had sought psychological assistance and had been told by the psychologist that an essential step in his rehabilitation would be to admit that he had committed the crimes. The appellant duly made complete admissions of each of the offences which formed the subject matter of counts 1 to 12. The sentencing judge said that but for the appellant's admissions, it was "most unlikely" that the offences would have been discovered.

5 In January 2001 the appellant was a church youth leader in charge of a church youth group at a camp. The appellant said that he took a number of photographs of girls in their underwear at the camp. Counts 1 and 2 involve a girl who the appellant thought would be between the ages of 9 and 11 years. The girl was asleep in a sleeping bag by a fire. The appellant undid the sleeping bag, pulled down her pyjamas and took photographs of the child's buttocks. The child did not wake up and had no idea what had happened.

6 The subject matter of count 3 was photographs taken by the appellant at his brother's house of the genitalia of the appellant's nieces who were aged 18 months, four years and eight years. The victims of count 4 were two girls aged two and a half years and five years. The appellant organised a slumber party and took photographs of the children's genitalia then and on later occasions. Count 5 concerned the elder of the two girls. The appellant was looking after the children at his house. He put the elder child into bed and took photographs of her genitalia. He then said that he put his finger into the child's anus, an action which he photographed. He said that he also digitally penetrated the child's vagina, the subject matter of count 6. Count 7 was constituted by the appellant placing his finger on the vagina of the older girl. The appellant also kissed the girl's buttocks, count 8. Count 9 was constituted by the appellant masturbating and ejaculating on the younger child's vagina after he had placed his finger on her anus. The appellant admitted licking the vaginas of both girls, counts 10 and 11.

7 Count 12 concerned the appellant taking photographs of the vagina of an 11 or 12 year old girl who was a cousin of the appellant's wife.

8 Count 13 was constituted by the child pornography discovered in the possession of the appellant when the search warrant was executed. The equipment found in the appellant's possession included the digital camera to with I have referred, a pair of binoculars, a laminating machine, a computer used to download images from internet pornographic sites, a colour printer, a number of pornography disks and videos and pornographic magazines. The respondent submitted that in imposing on counts 6 and 7 the same sentence as was imposed on count 5, His Honour failed to have regard to the fact that the penetration, the subject matter of those counts, was technical, a result of the definition in the Crimes Act rather than actual penetration.

9 The appellant was sentenced as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991 on counts 6 to 11. The sentencing judge said that, although protection of the community was the principal purpose for which the sentence was to be imposed, he did not regard it as necessary to impose a sentence longer than that which was proportionate to the gravity of the offences.

10 The appellant makes no complaint of his upbringing which appears to have been normal. He completed the Victorian Certificate of Education and commenced a chemistry degree course, but discontinued it after six months and took up an apprenticeship in optical mechanics which he completed after four years. In the final year of his apprenticeship, he undertook an arts degree with the aim of becoming a teacher, but failed to complete the course. The appellant has worked in the field of optical mechanics, but in July of 2004 was dismissed as a consequence of his employer hearing about the offences the subject matter of this appeal. The appellant found alternative employment delivering local newspapers and circulars. The appellant was married when he was 20 years old, and has two sons of that marriage, the elder child suffering from Down Syndrome. As a result of these offences, his marriage ended and his wife has denied the appellant access to his children.

11 The appellant's treating psychologist made a report to the court stating that the record of interview and a hand written statement by the appellant, which the psychologist described as "cathartic", reflected his remorse. The psychologist said that in his opinion, the appellant suffered from a sexual addiction resulting from viewing child pornography on the internet. The psychologist tested the appellant's IQ and found it to be of a very high order. He said that the appellant had learned strategies for relapse prevention and had successfully implemented the strategies. He said: "Based upon this man's commitment to treatment and the insights he had made in the course of ongoing treatment, it is my opinion that his prognosis is at least reasonable, and most probably good."

12 There can be no gainsaying the seriousness of the offences. The appellant corrupted young children to most of whom he stood in a position of trust. Statements made by parents of the victims reveal that the children were disturbed and may have suffered serious psychological harm. Apart from protection of the community, judicial denunciation of the crimes and general deterrence are important sentencing considerations.

13 Yet there were in this case significant mitigating factors. The appellant's pleas of guilty were made at the earliest possible opportunity and spared the victims of the offences the trauma of having to give evidence at the committal or trial. The trial judge said that he was satisfied that the appellant was "genuinely remorseful". The appellant had no prior convictions and was able to lead evidence before the sentencing judge as to his good character.

14 Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.

15 In his thoughtful and comprehensive sentencing remarks the sentencing judge canvassed the relevant considerations. Those remarks are persuasive. The crimes themselves warranted stern punishment. Nevertheless, I have formed the opinion that the sentence imposed upon the appellant does not adequately reflect the significance of the appellant's conduct since the detection of the offences which he committed on 11 August 2003. In Ryan v. R[1], Kirby, J. referred to the public interest that attached to a plea of guilty in revelation of additional offences which it would have been difficult to prove without confession and to the importance of a public confession of wrongdoing so that the victims would realise that they were wholly innocent. He continued:

"Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender this is likewise one of the objects of criminal punishment and that of judicial sentencing."

16 This appellant struggled with an addiction. The admissions and his pleas of guilty represent his efforts to combat the addiction and point to the hope that they will be successful. In my opinion, the court should be astute to assist the appellant in his struggle. While I think that the individual sentences imposed upon the appellant for the most part were justified, I am of the view that the total effective sentence is higher than was necessary to denounce the crimes having regard to the appellant's attitude and actions. Counsel for the respondent conceded that the evidence led in respect of count 1 was subsumed by another count and agreed that the conviction should be quashed.

17 Accordingly, apart from setting aside the conviction on count 1, and reducing the sentences on each of counts 6 and 7 to two years, I would affirm the individual sentences but set aside the orders made for cumulation made by the sentencing judge. I endorse His Honour's method of dealing with the fact that some of the offences involved the application of Part 2A of the Sentencing Act 1991 and required orders for concurrency and other offences required orders for cumulation. It is more comprehensible to speak in terms of cumulation. In those circumstances, I would direct that two years of the sentence on count 13, six months of each of the sentences imposed on counts 2, 6, 7, 10 and 11 be served cumulatively upon each other and upon the sentence imposed upon count 5. The total effective sentence I propose is seven and a half years' imprisonment. I would fix a non-parole period of four years and six months.

19 I also agree.

(Discussion ensued.)

BUCHANAN, J.A.:

20 The formal orders of the Court will be as follows. The appeal is allowed in part. The conviction on count 1 is set aside. The sentences on counts 6 and 7 are reduced to two years' imprisonment on each count. Otherwise, the sentences passed below are affirmed, but the orders for cumulation in relation to those sentences are set aside. In lieu thereof, the court directs that two years of the sentence imposed on count 13 and six months of each of the sentences imposed on counts 2, 6, 7, 10 and 11 be served cumulatively upon each other and upon the sentence imposed on count 5, but that otherwise all the sentences on the presentment be served concurrently, making a total effective sentence of seven years and six months. A new non-parole period of four years and six months is fixed.

21 It is declared that 365 days are to be reckoned as already served and it is ordered that there be noted in the records of the court the fact that that declaration was made and its details.

22 The appellant is sentenced on counts 6 to 11 as a serious sexual offender and it is ordered that this fact be entered in the records of the court. It is declared that the appellant must continue to comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 for the remainder of his life.

I certify that the preceding 7 pages are a true copy of the reasons for judgment of Buchanan, Eames and Nettle, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 21 November 2005.

DATED the day of 2005.