R v Dunne [2003] VSCA 150

5. A plea in mitigation of penalty commenced on 26 July and concluded on 2 August 2002. The prosecutor tendered a very useful chronology and a powerful victim impact statement. Counsel for the respondent called Dr. James Ogloff, Professor of Clinical Forensic Psychology at Monash University and Director of Psychological Services for the Victorian Institute of Forensic Medical Health, who had interviewed the appellant clinically, and tendered his report. Counsel also called three character witnesses and tendered a bundle of testimonial references.

8. On 7 August 2002 the County Court judge sentenced the appellant to various terms of imprisonment, ranging from one month to three years (the latter being imposed in respect of count 8, which charged the offence of sexual penetration), on the several counts and by a lengthy series of directions as to concurrency[1] arrived at a total effective sentence of imprisonment for seven years and two months. He fixed a non-parole period of four years and nine months and made a declaration of pre-sentence detention of thirteen days and an order for the taking of an intimate sample pursuant to s.464ZF of the Crimes Act 1958. Although his Honour stated in his sentencing remarks that the appellant was to be regarded from count 3 onwards as a serious sexual offender and sentenced him by reference to the provisions relating to serious offenders, he did not, as required by s.6F(1) of the Sentencing Act 1991, cause to be entered into the records of the County Court the fact that the appellant was sentenced for the offences the subject of all counts after the second as a serious sexual offender.

11. The appellant appeals, by leave of a single Judge of Appeal granted on 6 December 2002, on grounds substituted by the Registrar of Criminal Appeals on 3 March 2003, which claim that the sentencing judge erred in substance as follows:

(1) By having regard to uncharged allegations in determining the context in which the counts on the presentment occurred;

(2) By failing to give sufficient weight to the appellant's rehabilitation;

(3) By placing too much weight on general deterrence;

(4) By failing to take account of the fact that the appellant had been sexually abused as a child;

(5) By giving no weight to the impact on the appellant of stress and public opprobrium;

(6) In the application of the totality principle by failing to order greater concurrency between the counts;

(7) By imposing a head sentence, individual sentences and non-parole period that are manifestly excessive.

17. Before considering those grounds it is necessary to refer to the facts of the offences charged and facts personal to the appellant. The full facts constituting the offences (and, as will appear, many other offences) are contained in a very lengthy statement by the victim. A summary of them, which is based on the above-mentioned chronology, is contained in the judge's sentencing remarks, the presently relevant part of which I treat as incorporated in these reasons, for it is unnecessary to set out here all the sordid details. The statement of the offence of sexual penetration at the commencement of these reasons sufficiently states the facts constituting it. The indecent assaults were typically constituted by the appellant's masturbating the victim to the point of ejaculation or causing the victim to masturbate him to ejaculation. The offences occurred on camping expeditions, in homes of the appellant, in his car and, in one instance, in his office at a school. Significantly, it was the victim who brought the appellant's abuse of him to an end by pushing him away when he made advances, so that he ultimately desisted.

20. So far as the facts relating to the appellant are concerned, his Honour noted the appellant's age, and the facts that he had no prior or subsequent convictions and had pleaded guilty at an early date.[2] His Honour set out the appellant's life history from Professor Ogloff's report and I treat that as incorporated in these reasons. He then said that the character evidence called on the appellant's behalf (in which, it is clear from the context, his Honour included the written references) was impressive. The appellant, he said, had obviously, outwardly at least as a teacher, been a very active participant in school affairs, eager to help others. He accepted that the appellant's remorse was, at least at that time, genuine.

23. It is of assistance in considering the grounds of appeal to trace the reasoning by which his Honour arrived at the sentence he imposed, though there are one or two passages in his sentencing remarks which I shall leave for citation under specific grounds of appeal which directly involve them. The judge stated that the appellant would receive the full benefit of his early plea of guilty. Basing himself in part at least on the appellant's statement to his victim after the first assault that he, the appellant, could go to gaol for it, his Honour stated that from the very outset the appellant was aware of both his moral and legal obligations. The judge referred, with details, to the special treatment which the appellant gave the victim, saying that he acted effectively as a mentor for him and that the victim's parents trusted him implicitly. His Honour continued that both the appellant and the victim were members of a close-knit community. During the course of his assaults the appellant married and, indeed, had a child. (At the time of sentencing he and his wife had three children.) After assaults he would cry and get the boy to pray with him. The appellant asked the boy for forgiveness and in the circumstances of his social situation he forgave him. Addressing the appellant, his Honour continued in a passage the correctness of which cannot be doubted:

"In my view the aggravation in your situation is massive. It is hard to imagine a greater breach of trust to the child, to his parents, to your community, to the community at large and to your own family. You were not only his teacher but apparently his confidant and, in one sense, his spiritual adviser."

His Honour noted that the offences were 15 years old and said that he took account of the time that had passed, but that the delay, in one sense, did not assist the appellant because these were secret crimes, which, because of fear and shame, the victim did not report until he had undergone counselling.

28. The character evidence was, his Honour said, of great credit to the appellant in terms of his reputation, his capacity as a teacher and his general worth within the community. But his remorse and ultimate owning up and the payment of compensation, as mentioned later, did not mean that was the end of the matter. General deterrence played a large part. His Honour read an extensive passage from the victim impact statement to show how the victim lived in a state of denial, endeavouring to cope and to deal with personal problems. The statement, his Honour said, expressed far more eloquently than he could the damage that such crimes cause and why they attract the full force of the criminal law. With the victim impact statement his Honour coupled a psychologist's report about the problems afflicting the victim.

31. His Honour said that crimes such as these called for "denunciation, in great part general deterrence, specific deterrence and condign punishment," but in view of Professor Ogloff's evidence that he regarded the appellant as being a low risk of re-offending, which the judge accepted, specific deterrence in the appellant's case would not play such a crucial role, though the other matters mentioned were paramount.

34. His Honour referred to the provisions of the Sentencing Act relating to serious sexual offenders. The Act required him to treat the protection of the public as the primary function of the sentence. Because of the evidence of Professor Ogloff his Honour did not consider the appellant a danger to the public or that he should impose a disproportionate sentence. Unless he ordered to the contrary, sentences on each of the counts (from count 3 onwards) must be served cumulatively, but the principle of totality determined that he should not allow them to be served totally cumulatively and he would accordingly be ordering a substantial degree of concurrency.

37. For the offences to continue over three years showed, his Honour said, a high degree of moral culpability indeed. He was unable to say whether sexual gratification was the primary purpose, but it certainly was one of the appellant's purposes. All the matters he had mentioned put the offences at the higher end of the scale. His Honour accepted Professor Ogloff's evidence that the appellant did not cultivate his victim as a target, that the appellant had genuine remorse, at least at that time, and that at the time of offending the appellant probably did not realise the full ramifications for his victim, though his Honour stated that the fact remained that as a teacher he must have had at least a reasonable idea of the damage that such behaviour can cause. The judge next referred to the compensation paid by the Church which had employed the appellant as a teacher or, more accurately, by its insurer. (His Honour was told during the plea that the appellant was to reimburse part of this to the insurer, but had paid only half of that and had been sued to judgment for the balance.) At the conclusion of his summary of the appellant's life history referred to earlier his Honour stated that the appellant had since 2000, as he understood it (and as was the case), been unemployed. His Honour noted that the appellant was suffering depression. I add that Professor Ogloff reported that the appellant did not suffer from a mental illness or personality disorder.

40. Referring to the fact that the appellant had not offended in the 15 years since the offences were committed, his Honour said:

"Dr. Ogloff considers that your chances, insofar as rehabilitation [is] concerned, are good. He says[3] that you are not a paedophile, and I accept that."

His Honour then referred to Dr. Ogloff's opinion that the offending came about partly through sexual gratification and partly through sexual confusion on the appellant's part. His Honour accepted that the whole sexual conduct of the appellant, which he described, showed sexual confusion.

45. After some further comments his Honour stated that he must impose a sentence which reflected the gravity of the offences and yet did not crush the appellant's prospects of rehabilitation. He then proceeded to impose the sentences already summarised.

48. It is now possible to turn to the grounds. I take them in number order rather than the order in which they were argued.

52. The 31 counts to which the appellant pleaded guilty were not representative counts but related to specific identifiable events described in the victim's statement. The sentencing judge was told this at the commencement of the plea hearing. The victim's statement gave details of many other, uncharged, alleged offences and referred, in general terms, to even more. Towards the end of the hearing there was a considerable debate as to the use, if any, that could be made of the uncharged allegations.

55. Early in his sentencing remarks the judge, having referred to the occurrence of the first of the offences charged, said:

"The total number of assaults that you committed upon your victim over the next three years in all probability numbers in the hundreds. Those assaults included mutual masturbation, oral sex and a number of other acts. "You have pleaded guilty to 31 counts and it is important that you only be sentenced for those 31 counts. However, the wider history of the matter places those counts into context. That history was not to be used to aggravate your offences, simply to show that they were not one off. That history certainly indicates that you are not entitled to leniency in respect of the offences you have committed."

Later, after he had summarised the nature of the offence charged in each count, his Honour said:

"They are the charges [for] which you are to be sentenced and, as I have indicated, not as a matter of aggravation of those charges but in terms of whether leniency should be extended, are a small proportion of the acts involved."

61. Counsel for the appellant advanced two submissions under this ground.[4] It was first submitted that the assessment of the appellant's total criminality had been inflated by reference to matters which had not been charged: his Honour had acted on the submissions made by the prosecutor in the course of the plea and in effect treated the counts as representative in nature when they were not. Now, it is true that during the plea the prosecutor had stated that for practical purposes there was not really any great distinction between the case of representative counts and the instant case. It is probably true, too, that during the plea his Honour, although warning against turning the 31 counts into de facto representative counts, had suggested in some observations he made that that could, in effect, be done or that the appellant could be sentenced for a course of conduct including the uncharged offences. But, when he came to sentence the appellant five days later, I am of the opinion that the judge did not sentence as though the 31 counts were representative or otherwise use the uncharged offences impermissibly. Rather, he made it clear that the uncharged acts did not aggravate but simply prevented the extension to the appellant of leniency[5], because they showed that count 8 was not the only occurrence of sexual penetration and that the other 30 counts could not be suggested to constitute the totality of indecent assaults committed upon the victim. It is true that in the first of the two passages that I have set out under this ground, his Honour used the word "context"[6], but there was no error in that. For, in the determination of the appropriate and just effective sentence for the 31 counts, the fact of the commission of numerous other offences during the same period was relevant and admissible: it enabled a more realistic assessment to be made of the nature, degree and true significance of the criminality involved in the 31 offences and of the level of the appellant's personal responsibility. It showed, too, that they were not the offences of a person of otherwise good character[7]. To have regard to this "context" is not to sentence the appellant for the uncharged acts. These matters are explained in Weininger v. The Queen[8]

64. Counsel's second submission was directed to his Honour's statement, "The total number of assaults that you committed ... in all probability numbers in the hundreds." In the outline of argument it was submitted, correctly[9], that facts adverse to the interests of the prisoner can only be relied upon if they are established beyond reasonable doubt, and, further, that the appellant did not by his plea of guilty admit any allegations beyond the 31 specific counts charged. In oral argument the submission was more specific, namely, that his Honour could not use the fact that the total number of assaults committed by the appellant numbered in the hundreds because he had found that fact as a matter of probability only. But, first, it is arguable that, despite the position of the words, the reference to probability signifies that the number was an approximation rather than signifying the degree of certainty about the statement. Secondly, in any case a failure to find to the criminal standard was immaterial for the further reason that his Honour's reasoning did not depend on a finding that the assaults numbered in the hundreds. It was supported by his finding, not suggested to be on the balance of probabilities only, in the second passage set out in para.[16] above that the offences charged in the presentment were "a small proportion of the acts involved". Indeed, the whole plea proceeded on the footing that it was the undoubted fact that there were very many uncharged acts. The actual number did not matter. In short, then, the point is immaterial.

67. It may well have been open to the sentencing judge to conclude beyond reasonable doubt that the total number of assaults committed by the appellant upon the victim numbered in the hundreds. Counsel for the appellant and counsel for the respondent both informed us that there was material on which his Honour could so find and counsel for the appellant also stated, in answer to a question from the Bench, that the total of all the offences as being in the hundreds had not been specifically challenged though points had been made bearing on that. In their judgment in Weininger[10] Gleeson, C.J., McHugh, Gummow and Hayne, JJ., having referred to the fact that at first instance counsel for the prosecution tendered, without objection, a statement of facts, stated that, there having been no objection to its receipt, the primary judge was entitled to act on the facts described in the statement. Later their Honours said[11] that it may well have been open to the sentencing judge to conclude beyond reasonable doubt that the appellant had previously been knowingly concerned in the importation of cocaine, one of the offences to which he pleaded guilty, and that the statement of facts provided a sound basis for that conclusion. Their Honours then said that such a conclusion would have entitled the primary judge to take it into account as a matter warranting the imposition of a heavier sentence than might otherwise have been imposed. In the present case corresponding observations can be made, for there was no objection to reliance upon the victim's statement, which formed part of the hand-up brief[12] and was accordingly available to the sentencing judge. Moreover, it seems reasonably clear from Professor Ogloff's report, based on his interview of the appellant, that the appellant substantially agreed, on the question of the totality of the offences, with what the victim had stated; for Professor Ogloff stated, "For the most part, [the appellant's] version of the offences corresponds closely to the details the victim presented in his 68-page statement to the police." (The Professor then mentioned two points, not insignificant, but presently immaterial, on which the appellant disagreed with the victim.) Later, Professor Ogloff stated that the appellant "repeated the acts on many, many occasions over three years". It could, then, be said that, if the judge's finding was only on the balance of probabilities, he could and should have made it beyond reasonable doubt, thereby enabling the fact to be used adversely to the appellant in the way indicated in Weininger. But the sentencing judge did not seek to do this and the matter need not be pursued.

71. These two grounds were argued together for the appellant. It was submitted that the matters and evidence in support of his rehabilitation, both achieved and prospective, were compelling. He had no prior convictions; had not offended for 15 years; had pleaded guilty and expressed genuine remorse; had exemplary prior character; had a stable marriage with three children; and had been assessed by Professor Ogloff as being a low risk of re-offending and still requiring some intervention and treatment. It was submitted orally, as it had been before the sentencing judge, that pursuant to s.6D(a) of the Sentencing Act the judge had been bound to treat "the protection of the community from the offender"[13] as the principal purpose for which the sentences from count 3 onwards were to be imposed. It was further submitted that in the long run the community's best protection would come from the appellant's rehabilitation, but that his Honour had failed to consider in what way rehabilitation would advance the legislative command, and that s.6D(a) in the circumstances meant that far greater weight was to be given to rehabilitation than the judge gave it. In that regard it was pointed out that rehabilitation was not included in the sentencing purposes which his Honour listed as paramount.

74. His Honour did, however, accept Professor Ogloff's opinion that the appellant was a low risk of re-offending and accordingly treated specific deterrence (often the counterpart of rehabilitation) as having a much lesser role. Further, in the passage set out in para.[12] above in which his Honour referred to Professor Ogloff's opinion as to the appellant's prospects of rehabilitation and his opinion that the appellant was not a paedophile, his Honour, in my view, accepted the first as well as the second opinion. Finally, his Honour referred to rehabilitation immediately before pronouncing sentence, when he said that the sentence must not crush the appellant's prospects of rehabilitation. It was contended that this was an insufficient recognition of rehabilitation. But it was exactly responsive to counsel's final submission in opening the plea, "I just ask your Honour, don't crush that hope of rehabilitation ... out of him. That is all I ask." Moreover, counsel before us recognised the difficulty of establishing that either insufficient or excessive weight had been given to a relevant factor[14]. Here his Honour was, as indicated, clearly mindful of the topic of rehabilitation and, in addition, expressly recognised each of the factors relied on as supporting the appellant's achieved and prospective rehabilitation.

77. It was also submitted that the punitive and deterrent aspects of the sentencing process should not usually be allowed to prevail to destroy, possibly, results of rehabilitation. This entirely overlooks the objective seriousness of the offending and the appellant's moral culpability at the time.

80. Whilst the question of weight given to the factor may be considered as a particular under ground 7, subject to two specific considerations I am not persuaded that his Honour gave insufficient weight to the appellant's rehabilitation.

83. The first specific consideration is the argument based on s.6D(a). That argument, if carried to its logical extreme, would result in offenders with good prospective or achieved rehabilitation not being incarcerated at all or at any rate (since the provision relates to imprisonment) for a very short time. Counsel disavowed any such result. In my opinion, s.6D(a) does not in a case such as the present exclude the sentencing purposes that would have been particularly applicable had the provision not been passed, namely, denunciation, general deterrence and just punishment. Counsel appearing for the appellant below had acknowledged that denunciation, just punishment and general deterrence had a role to play, and counsel for the appellant before us recognised that, notwithstanding s.6D(a), general deterrence had a part to play in the sentencing of the appellant. This must be so, for s.6D pre-supposes a determination under s.5 (which, importantly for present purposes, includes the list of sentencing purposes) that imprisonment is justified and sets out provisions directed to the determination of the length of imprisonment. Further, paragraph (a) of the section makes the protection of the community from the offender the principal, not the sole, purpose for which the sentence is imposed. Again, the cases confirm the view which I have expressed. R. v. MWH[15] recognises that just punishment and general deterrence are applicable in the case of a reformed offender falling to be sentenced as a serious sexual offender. In D.P.P. v. Riddle[16], in a passage which appellant's counsel accepted as correct when he was asked about it by the Bench, Vincent, J.A. stated that the principles of just punishment, public denunciation and general deterrence assume considerable significance in cases such as the present. A like statement occurs in the judgment of Chernov, J.A.[17] As to the submission that his Honour had downgraded rehabilitation whereas s.6D(a) here meant that far greater weight should have been given to it, I do not agree. Imprisonment is a way of protecting the community from an offender who has achieved considerable, but not complete, rehabilitation, and the gravity of these offences, with the breach of trust and abuse of power over a three year period that they involved, meant that condign punishment in the form of a substantial term of imprisonment was required.

86. Secondly, it was submitted that the judge did not consider the implications of the delay for the weight to be given to the appellant's rehabilitation. It is true that in his sentencing remarks the judge dealt expressly only with the mitigating effect of delay that arises from an offender's having charges hanging over his or her head for a long time, pointing out, correctly, that that factor was neutralised by reason of the secret nature of the crimes and the fear of disclosure engendered in the victim. But the delay worked in the appellant's favour by allowing partial rehabilitation to be achieved and his Honour accepted all the factors relied on as showing achieved rehabilitation. His Honour's sentencing remarks extended over 20 transcript pages, as it was. To require every possible aspect to be mentioned is, in my view, to ask too much of a sentencing judge, whose task is difficult enough as it is. His Honour had during the plea hearing[18] shown himself to be well aware of the aspect of delay now raised. In my opinion, there is no substance in the complaint.

89. Specifically under ground 3 it was submitted that general deterrence was not to be tempered only where the offender's mind was disordered (and the appellant's mind was not). Reliance was placed on the sentencing judge's remarks during the plea hearing as to the difficulty inherent in examining culpability with the benefit of hindsight and reference was made to the evidence that persons such as the appellant 15 to 17 years ago would have found it difficult to get help within the church community. Counsel stressed that his Honour had accepted that the appellant was not predatory and reliance was placed on the evidence from Professor Ogloff as to the "atypical" and complex nature of the appellant's offending, having regard to a number of factors enumerated in counsel's outline. In fact the sentencing judge recognised all those factors. In any event they do not bring the appellant within established principles for the moderation of general deterrence. I am not persuaded that his Honour placed too much weight on general deterrence.

96. In his report Professor Ogloff, repeating the history given to him by the appellant, stated that, when the appellant was approximately 12 or 13 years old, his older brother and a cousin performed sexual acts on him and asked him to reciprocate and that, when he was 13 or 14 years old, a former student of his father's fondled the appellant and performed oral sex on him, that he reported - or at least insinuated - this to his parents, and that he did not see the person again. Professor Ogloff reported that the appellant did not consider the earlier sexual acts to have been abuse, but thought of them as sexual experimentation. In his oral evidence the Professor stated that the later occurrence was perceived by the appellant as an abusive experience. The appellant did not give evidence of any of the foregoing, so that it was hearsay, though not objected to.

99. Although, as indicated, there was some mention of sexual abuse of the appellant in evidence given on the plea hearing, this court was not referred to any mention of the topic by counsel then appearing for the appellant and I have been unable to find any. His Honour made no direct reference to the topic in his sentencing remarks.

102. Whilst it was not asserted for the appellant that the prior abuse of him caused the offending, it was submitted that it was clearly an important part of Professor Ogloff's analysis of the appellant's background and the context in which he came to offend. In particular, it was submitted, it bore on the appellant's confusion as to his sexuality. The submission for the appellant concluded that the judge should have evaluated and considered the impact of the sexual abuse on the appellant and, by implication, that in failing to do so he had made a specific sentencing error.

105. As was submitted for the appellant, it is established by the decision of this Court in R. v. AWF[19] that, in order to be relevant to sentencing, it need not be established that childhood sexual abuse of an offender caused the offending, and that such abuse may be relevant to moral culpability, rehabilitation and specific deterrence. That case also establishes, however, that such abuse does not excuse the offending conduct. As Ormiston, J.A. observed[20], at least in the absence (as here) of evidence that the childhood abuse led to a psychiatric or psychological condition taking away from the criminality of the offending behaviour, its relevance and persuasiveness will vary greatly from case to case, especially where the charges are of the most serious kind. His Honour warned[21] that one should be careful not to assume that abuse of the kind in question would automatically lead to some reduction of sentence; that in general it is not so much the cause that is important: rather it is the consequences which flow from the earlier events; and that evidence generally of the kind in question ought not to be adduced with some general expectation that there will be a substantial reduction for that reason in every set of circumstances.

108. In my view, this ground should not be sustained, for a number of reasons which overlap. First, the topic was not mentioned at all in the submissions made (as opposed to evidence led) by counsel appearing before the sentencing judge. It is, in my respectful view, asking much, if not too much, of sentencing judges to pick up and treat as significant matters of evidence not relied on by experienced counsel in a lengthy plea in mitigation of penalty. That it was not mentioned by counsel suggests strongly that it was not regarded as of any real significance in this case. If, then, there was error on his Honour's part, it was immaterial error. Secondly, subject to what is said under the third reason, there was here no evidence showing the significance of the abuse in terms of its consequences, so that its relevance and persuasiveness were weak. Thirdly, if the abuse had any significant consequence, that lay in any part it played in causing the appellant to be confused about his sexuality. The latter matter his Honour clearly accepted and took into account, so that omission of reference to childhood abuse is immaterial.

111. As Vincent, J.A. pointed out during argument, if in truth the appellant himself was sexually abused as a child, he could not say (or it could not be said of him, as Professor Ogloff did[22]) that he did not have the appreciation at the time of offending of how much harm he was causing the victim. Although his Honour accepted Professor Ogloff's evidence on this point, he qualified it substantially by pointing out that the appellant must as a teacher have had at least a reasonable idea of the damage that such behaviour can cause. It may be that his Honour should not have accepted this piece of evidence. So, in this case sexual abuse in childhood may be a two-edged sword.

115. Counsel for the appellant referred to the appellant's loss of employment as a teacher at a school conducted by his Church, as a result of the settlement entered into very soon after the commencement of civil proceeding against him and the Church in 2000, and to the loss of his casual employment at a hospital, which occurred once matters became public. Counsel also referred to the judgment obtained against the appellant and the possibility of bankruptcy which he faced. It was further pointed out that the appellant's community knew about the offending and that he had been suicidal, was suffering from depression and was distressed and concerned for the welfare of his three young children, who were aged 15, 13 and 10.

118. On that basis complaint was made that in his reasons for sentence the judge did not refer to the impact of the disclosure of the offences on the appellant, including the life-long stigma that was said to stem from being publicly identified as a child sex offender. The observations of Kirby, J. and Callinan, J. in Ryan v. The Queen[23] were called in aid, though it was acknowledged that McHugh, J. and Hayne, J. had expressed the opposite view[24]. It was accepted that all the remarks on the question were obiter. Indeed McHugh, J. pointed out[25] that they were not binding on any judge or magistrate.

121. With regard to the facts relied on, the appellant had suicidal ideation only for three months following the revelation of his offending and that had ceased quite some time before he was interviewed by Professor Ogloff. The judge pointed out during the plea hearing that he could not take into account the effect upon the appellant's children of his conviction and punishment unless that effect was shown to be exceptional, but counsel declined his offer of an opportunity to show that that was the case. The judge not only was aware of but referred to the appellant's loss of employment and the payment made under the settlement of the civil action brought by the victim. I would observe that this is not strictly a case where the employment was lost as a result of the conviction and sentence: it was lost because of a term of the settlement made over a year before the appellant's arrest in the case of employment as a teacher, and, according to what the judge was told, at about the same time in the case of the casual employment. It must have been obvious to the appellant as he committed the crimes that, if discovered, he would be quite unable to retain his position as a teacher at a religious school. In summary, so far as stress is concerned, his Honour took account of all matters properly relied on and referred to most, if not all, of them. Naturally, in view of the seriousness of the offending, stress upon the appellant was a minor consideration.

124. As regards public opprobrium or stigma, Ryan, as already explained, in no way constitutes an authority that it is properly to be taken into account by way of mitigation. Quite apart from that, like McHugh, J. in that case[26], I read Kirby, J.'s discussion[27] of opprobrium and stigma as limited to a prisoner exposed as a paedophile, and the sentencing judge in the present case found that the appellant was not a paedophile. In any event, the court was not taken to any passage in the plea hearing where opprobrium or stigma was referred to and in several readings of the transcript I have found none. That suggests to me, bearing in mind that the plea was a detailed one, that the topic was considered unimportant. I say again that it is unfair to sentencing judges to criticise them on appeal for not taking factors into account which were not drawn to their attention. In any case, his Honour could not have been unaware that the appellant's conviction and sentence for these offences would, if receiving publicity, seriously affect the appellant's reputation. If any more specific or more serious opprobrium were suggested, it would need to be, in the words of Kirby, J., "properly based on evidence" (assuming always that opprobrium is an admissible consideration) and there was none. In that regard, although the appellant's community knew about the offending, I have the impression from all the material I have read that, whilst condemning his offending conduct, his community has stood by the appellant and supported him. So he has not been ostracised. Certainly, as is to be expected, that is the case with all members of the community who gave evidence or provided testimonial references.

127. For the foregoing reasons, this ground fails.

131. It was submitted that the judge's undervaluation of the significance of the question of the delay and the extent to which the appellant had rehabilitated (being the error asserted in ground 2) meant that error also occurred in the application of the totality principle. It was also submitted that the error alleged in ground 1 impacted on the proper application of the totality principle.

134. For the reasons given earlier, however, I do not consider either of the asserted errors has been made out. But, although this ground as argued fails, the rehabilitation, achieved and prospective, is a matter properly taken into account in considering ground 1, which indeed raises the question of the sufficiency of the directions for concurrency because it challenges the total effective sentence as being manifestly excessive. I would, however, add that it is to be recalled that the sentencing judge recognised that the totality of principle required that the sentences on the individual counts should not be served totally cumulatively and indicated that he would therefore order a substantial degree of concurrency, which I consider he did.

138. In opening the appeal appellant's counsel informed the court that this ground was not pursued in respect of the individual sentences. In relation to the total effective sentence and the non-parole period he relied on six features, namely:

(i) the early plea of guilty, sparing the victim cross-examination;

(ii) compelling expressions of remorse that were independent of the plea of guilty and came from multiple sources, including a recorded telephone conversation between the victim and the appellant and the appellant's interview with Professor Ogloff;

(iii) that the appellant was shown by sworn evidence and the testimonial references to be of exemplary prior and subsequent character, not merely that he had no prior convictions;

(iv) the clear evidence that the appellant and his family had suffered a devastating impact, with his career terminated (a matter I have already discussed);

(v) the fact that the appellant ceased offending without intervention[28] and then had a friendship with the victim with no allegation of physical or verbal threats during that time, reference being made to his Honour's acceptance of Professor Ogloff's view that the appellant had not set out to groom his victim and of the fact that he would have had difficulty in getting help at the time;

(vi) the judge's acceptance of the view that the appellant did not pose any real risk to the community.

Reference was made in the appellant's written outline to the nature of his incarceration. In addition, the court was urged to temper the victim impact statement and accompanying psychologist's report and in that regard counsel cited the statement by Hayne, J. in Ryan[29] of the accepted proposition that sympathy for the offender's victims cannot be allowed to cloud the sentencer's vision. Counsel then referred the court to a half dozen or so cases of sentences on facts said to be comparable which, it was said, by reason of the duration of offending, the number of victims and the absence of pleas of guilty in those cases showed that the sentence here was manifestly excessive. (Counsel for the respondent had when the appeal was called on handed up the list of cases said to be comparable that had been handed by the prosecutor to the sentencing judge.)

144. I have considered the cases put forward by each side for consideration as comparable, but, substantially for the reasons stated by Ormiston, J.A. in R. v. SBL[30], I have not found them of much help.

147. Whether a sentence is manifestly excessive or manifestly inadequate does not admit of much argument once the relevant features have been identified[31]. The question is not whether this court, if sentencing, would have imposed a lesser sentence. Putting aside mandatory sentences, in any given case there is no single

correct sentence because sentencing is a discretionary judicial act. Rather, there is a range of sentences open to the sentencing judge in the exercise of a sound discretionary judgment. In this case, I have come to the conclusion that neither the total effective sentence[32] nor the non-parole period is outside that range. In other words, neither, in my opinion, is manifestly excessive. I have reached that conclusion principally by reason of the objective seriousness of the offending (manifested by the breach of trust and abuse of power and the period over which the 31 offences occurred) together with the appellant's complete awareness of his moral and legal culpability. In reaching my conclusion I have taken into account the partial rehabilitation so far achieved by the appellant and his prospects for further improvement, which the concluding section of Professor Ogloff's report shows is still needed. I recognise that a somewhat shorter non-parole period could well have been fixed in view of the appellant's reformation, achieved and prospective; but I am not persuaded that it was not open to the judge to fix the period which he did.

152. It follows that I am of the opinion that this appeal fails, but solely in order to make good the omission of a direction for the recording of the fact that the appellant was sentenced for the offences the subject of counts 3 to 31 (inclusive) as a serious sexual offender, I would formally allow the appeal, order the inclusion of an appropriate direction and otherwise dismiss the appeal.

157. I agree with the disposition of this appeal proposed by Batt, J.A. for the reasons advanced by him.

[1] The directions can be made simpler if expressed compendiously, as by a direction that stated portions of the sentences imposed on stated counts be served concurrently with each other and (in effect) all other sentences. Compare R. v. R.H. McL [1998] VSCA 61; [1999] 1 V.R. 746 at 780, upheld on appeal: R.H. McL v. The Queen [2000] HCA 46; (2000) 203 C.L.R. 452. (The preposition after "concurrent" should be "with" rather than "on".) But when some of the offences are, and others are not, "relevant offences" (for instance) and portions of the sentences imposed for the latter offences are to be served cumulatively it must be conceded that the directions can become complex.

[2] The appellant reserved his plea at the conclusion of the committal hearing. But the hearing was by way of hand-up brief, and there were then some 60 charges.

[3] This was because the victim was pubescent.

[4] Counsel for the appellant before the sentencing judge accepted (T.106) that his Honour, in taking into account the effect on the victim of the offending, could have regard to the whole victim impact statement and did not have to attempt the impossible task of dissecting it as between charged and uncharged acts.

[5] Which in the circumstances of the case probably included mercy.

[6] Cf. R. v. SBL [1998] VSCA 144; [1999] 1 V.R. 706 at 726,para.[70].

[7] Compare Ryan v. The Queen (2001) 206 C.L.R. 267 generally on this question. Were it not for the rehabilitation the appellant had achieved it would also have been significant in relation to specific deterrence.

[8] [2003] HCA 14; (2003) 77 A.L.J.R. 872 at 878, paras [29], [31] and [32]. Cf. s.5(2)(f) of the Sentencing Act, noting that the amplifying s.6 is not exhaustive.

[9] The Queen v. Olbrich [1999] HCA 54; (1999) 199 C.L.R. 270 at 281, para.[27], approving R. v. Storey [1998] 1 V.R. 359 at 369; and Weininger at 876, para.[18]. Both counsel accepted that Weininger, so far as it is referred to in these reasons, was applicable to State offences and I have been content to proceed on that basis.

[12] And was treated as though it was sworn: Magistrates' Court Act 1989, Schedule 5, clause 8(1)(b).

[14] R. v. Bernath [1997] 1 V.R. 271 at 277.

[15] [2001] VSCA 196 at para.[27] per Callaway, J.A., with whom O'Bryan, A.J.A. agreed.

[16] [2002] VSCA 153 at para.[35].

[18] At T.71. Criticism was made of some of his Honour's other remarks about rehabilitation and delay during the course of the plea hearing. But they were clearly, as his Honour indicated, tentative observations.

[19] [2000] VSCA 172; (2000) 2 V.R. 1 at 3-5, paras.[3]-[7], and 10, para. [34].

[23] (2001) 206 C.L.R. 267 at 303-304, para.[123], and 318-319, para.[177], respectively.

[24] At 284-285, paras.[52]-[55], and 313-314, paras.[156]-[157], respectively. Gummow, J. did not express any view on the question.

[28] But not of his own volition: see para. [5] above.

[30] [1998] VSCA 144; [1999] 1 V.R. 706 at 725, para.[66]. Compare R. v. Giordano [1998] 1 V.R. 544 at 549.

[31] Compare Dinsdale v. The Queen [2000] HCA 54; (2000) 202 C.L.R. 321 at 325-326, para.6.

[32] Strictly the challenge is to the insufficiency of directions for concurrency or, perhaps, to the excessiveness of the cumulations operating by law after giving effect to the directions for concurrency.