R v Elliott [2005] VSCA 37

Court of Appeal (Vic)|2005-02-10|Before: VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.

Criminal law - Sentence - Indecent assault of male person under the age of 16 years - Indecent assault - Incest - Victim was appellant's natural born son - Manifest excess - Whether sentencing judge placed undue emphasis upon victim's perspective of suffering - Appeal dismissed.

The appellant pleaded guilty in the County Court, on 25 February 2004, to one count of indecent assault of a male person under the age of 16 years, count 1; one count of indecent assault, count 2, and six counts of incest, counts 3 to 8.

He also admitted having been previously convicted at the Melbourne Magistrates' Court, on 5 October 1987, on seven charges of indecent assault, making an obscene article, and for procuring a child under 16 years of age for making an obscene article. Those offences were committed against his young son, the victim of the offences presently under consideration.

Although not a prior conviction, as that term is ordinarily understood, the appellant was convicted on 30 August 2001 on five charges of indecent assault committed between 1976 and 1979 upon a female child aged between four and seven years, into whose custody he had been entrusted as a baby sitter. On that occasion he was sentenced to an aggregate term of 15 months' imprisonment with a non-parole period of five months.

After hearing a plea in mitigation of penalty, the learned sentencing judge, on 2 March 2004, imposed the following terms of imprisonment:

Her Honour directed that the sentences imposed on counts 2, 3, 4 and 5 were to be served concurrently, and that one year of the sentence imposed on each of counts 1, 6 and 8 and two years of the sentence imposed on count 7 were to be served cumulatively upon each other, and the effective base sentence thus created was seven years. This resulted in a total effective sentence of 12 years' imprisonment in respect of which a non-parole period of nine years was fixed. Her Honour directed that it be noted that the appellant was, in relation to a number of the offences, sentenced as a serious sexual offender.

Having been granted leave to do so, the appellant now seeks to overturn the total effective sentence, and a number of the individual sentences imposed upon him, and the non-parole period fixed by her Honour, that each was manifestly excessive in the circumstances.

It was further claimed that the learned sentencing judge fell into error in concluding, in the absence of a proper evidentiary foundation, that the appellant contributed substantially to later and separate offending by his victim. It should be pointed out that the victim of these offences was at the time of sentencing also serving a term of imprisonment for sexual offences against children.

The victim in relation to all counts, as I have indicated, was the appellant's natural son born 1 March 1972. He was accordingly aged between six and 29 years during the period of offending encompassed by the charges.

The appellant was born on 13 July 1948, and he was aged between 30 and 53 years in the relevant period.

Count 1 relates to a single incident that occurred in February 1979 when the victim was six years of age. The appellant was giving him a bath and, whilst doing so, tickled his anus and fondled and masturbated his penis for a few minutes.

Counts 2, 3, 4 and 5 are representative counts and relate to an incident that took place when the victim was aged 14 or 15 years. The appellant and the victim on that occasion were both naked on the lounge room floor of the home in which they lived. They engaged in mutual masturbation, count 2, and performed oral sex on each other, counts 3 and 4. The appellant also anally penetrated the victim and ejaculated inside him, count 5.

The victim stated that this type of activity took place on a regular basis, including another occasion on which they engaged in mutual oral sex in the appellant's car, and another again when the appellant showed him a pornographic magazine whilst masturbating and performing oral sex on him. The victim detailed occasions on which the appellant's penis penetrated his anus, including one which involved the appellant shaving his and the victim's genitals prior to penetration.

Count 6 is also a representative count. It relates to an incident in the course of which the appellant placed his penis in the victim's mouth. At this stage the victim was aged about 25 years and was living in rented premises. He had not had contact with his father for some time, but had invited him to visit. On the first occasion that the appellant did so, he performed oral sex on his son, who stated that this form of activity occurred regularly over the next few months. He also detailed other occasions where the conduct occurred in the presence of another person, and other occasions again when he was living in a flat in Noble Park.

Count 7 is a representative count relating to the penetration by the appellant of the anus of the victim with his penis. This form of offending occurred regularly, according to the victim, when he was visited by the appellant at his flat in Kilsyth.

Count 8 is also a representative count and it relates to an incident of oral sex. The victim was on this occasion at the appellant's house baby sitting his half brother and half sister while the appellant and his wife attended a Christmas party. On his return home, and after the appellant's wife retired for the evening, the appellant and the victim had a conversation in the lounge room, during which the victim placed the victim's penis in his mouth. Similar contact occurred at other times and other locations. According to the victim, the offending continued until his father was imprisoned on 30 August 2001.

In support of his contention that the total effective sentence imposed upon his client and the non-parole period fixed were both manifestly excessive, counsel for the appellant submitted that, despite the presence of what were referred to somewhat euphemistically as "many adverse characteristics", when regard is had to the appellant's age, his plea of guilty and what was said to be the limited ongoing risk posed by him, as well as the fact that the only victim of his offending was his son, the conduct in which he engaged did not fit so high in the spectrum that punishment of the order handed down was required. He argued that the orders for cumulation made in respect of counts 6, 7 and 8 were inappropriate when regard is had to the fact that the victim was a consenting adult. It was pointed out that the sentences imposed on counts 3, 4 and 5 were similar to those imposed on these three counts, and that no proper distinction appears to have been made between the different forms of offending involved. The sentences on counts 6, 7 and 8, it was submitted, were comparable to those recently imposed for incestuous conduct against young children, and outside the range of those available in the proper exercise of sentencing discretion.

Ground 2 contains the complaint that the learned sentencing judge erred in apparently concluding, without proper evidence, that the appellant contributed substantially to the later offending behaviour of his victim. It is based upon the following passage from her remarks:

"A victim impact statement has been tendered in Court as Exhibit B. Your son, Gavin, is presently serving a sentence of eight years' imprisonment with a non-parole period of six years, in relation to sexual offences concerning his half-brother and half-sister, that is, the young children of your second marriage. The Victim Impact Statement is a poignant statement of what he considers to be the consequences of your actions upon him. Insofar as the statement refers to incidents which are not the subject of the Presentment, I put those matters to one side. He begins by saying:

'The persistent long-term sexual abuse by my father, Frederick James Elliott, has had an obviously negative affect upon me that continues to this day.'

He goes on to say that he has made four suicide attempts which, he says, is directly caused by the adverse effect of being sexually abused for more than 20 years. His relationships with his siblings and partners in life have been affected. It is his belief that your abuse of him has led to his abuse of his youngest half siblings, a view which, I interpose to say, has some support from the comments of Dr Owens in his report. In his words, he lays 'the blame for my own eventual offending squarely with my father, as it was due to his continuing abuse of myself that led me to believe that what he did to me was normal.' Whether that actually be the case of Gavin's offending conduct, it cannot be denied that he regards you as ultimately responsible for his actions. He now suffers sexual dysfunction and is awaiting treatment for gender dysphoria prior to undergoing a gender reassignment surgery after his release. Again, I stress, whether your abuse is the cause of his sexual dysfunction, as he states, perhaps only the experts could tell us, but it is certainly how he regards the situation and it is clear that he has suffered in the past as a result of your actions and that your actions have had a profound effect upon him."[1]

Her Honour clearly did not make the findings sought to be attributed to her in this ground, and was at pains to make that point. She indicated that she was looking at the impact of the appellant's conduct viewed from the perspective of the victim who can be seen to have suffered greatly as a consequence of the offences committed against him.

In argument today, Mr Meredith has modified his position with respect to that ground and contended that the judge placed undue emphasis upon the victim's perspective of the damage that he personally has suffered. I find myself unable to agree with that contention

In my view, none of the arguments which have been advanced on behalf of the appellant possess substance. Considered in context, the appellant's offences were very serious, indeed. The first of them was committed when his victim, a child who was dependent upon him and entitled to his protection, was only six years of age. He betrayed the trust that he had as a parent in a truly despicable fashion. There is no need to expatiate upon the significance of such a betrayal, considered from the perspective of the individual or the community which this court represents. Nor is it necessary to do more than refer to the disgust with which the conduct in which the appellant engaged is viewed by all save the most depraved.

The culpability attaching to each of counts 2, 3, 4 and 5 is very high. They are representative of the persistent and systematic sexual abuse in which the appellant indulged himself, and which extended into his son's early teenage years and adulthood. As the learned sentencing judge stated in her carefully constructed sentencing remarks:

"It cannot be doubted that these offences are serious and, in respect of the incest counts, are serious instances of serious offences. I regard your culpability as high. Although the conduct, the subject of counts 2 to 8, was consensual, that does not, in my view, minimise your role in it, nor your responsibility for it. Your conduct was at times variously opportunistic, brazen and salacious. It was at all times totally reprehensible and abhorrent and offends against both the basics mores and established principles of our society. Further, your conduct represents a substantial breach of a significant trust between a parent and child which occurred when your son was a young child, a teenager and an adult. I regard the offences the subject of counts 2 to 8 on the Presentment, as at the higher end of offences of this kind." [2]

I endorse and adopt that assessment. It is apparent that the imposition of substantial terms of imprisonment, in respect of the separate offences, was called for in order to reflect their level of seriousness and the very high degree of criminality involved. Orders for cumulation were required to reflect the lengthy period and occasions of offending. I have been unable to detect any error in the learned sentencing judge's approach to these matters. Her Honour addressed all relevant sentencing principles and factual considerations, including any which could be seen to militate in mitigation of penalty. Nor can error be inferred from the individual sentences themselves as none could be characterised as manifestly excessive in the circumstances.

In my view, the orders for cumulation were moderate, given the number of

offences and period involved. They did not produce a total effective sentence that breached the totality principle.

In summary, I am far from persuaded that the learned sentencing judge fell into error in any respect with respect to the disposition at which she arrived in this case.

I agree in all that has been said by the learned presiding judge. The appeal should be dismissed.

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