R v Fuller-Cust [2002] VSCA 168

4. The learned sentencing Judge erred in imposing a "crushing" sentence.

5. The learned sentencing Judge erred in failing to properly apply principles in relation to totality of sentence.

6. The learned sentencing Judge erred in treating each count on the Presentment as a "relevant offence" for the purposes of sections 6D and 6E of the Sentencing Act 1991 (Vic.).

7. The learned sentencing Judge erred in stating that "Cumulation is the normal rule where the offender falls for sentence for offences on quite separate occasions." (pp.158-159).

34. On 29 June 2001 a single Judge of Appeal, exercising jurisdiction under s.582 of the Crimes Act 1958, dismissed the applicant's application for leave to appeal for reasons which he gave at some length. By notice dated 12 July 2001 the applicant elected to have his application determined by the Court of Appeal. The application was listed for hearing on 26 March 2002, but was unable to be reached. On the previous day the then presiding judge had drawn attention on behalf of the court to certain observations of the sentencing judge, which led to the addition of grounds 6 and 7 set out earlier.

38. Before considering any of the grounds, it is necessary to summarise the facts of the offending and the facts personal to the applicant. Both are set out in some detail in his Honour's extensive sentencing remarks. In relation to the offending, I state a few facts not mentioned by his Honour which were undisputed before him.

41. The complainant R was aged 25 years at the time of the offences upon her. She was a small woman. The applicant is tall and strongly built. She came to know the applicant in about October or November 1999 when she was living in a bungalow at the rear of his former foster parents' house. They had exchanged conversation, usually in the kitchen of the applicant's foster mother. About a week before the offences the applicant took the complainant ten-pin bowling and they had consensual intercourse afterwards, instigated by her. There may have been other consensual intercourse, as the applicant stated in his interview with police, but his Honour did not find it necessary to decide the point.

44. On 17 February 2000 the complainant went to bed early. She was woken about 11.30 p.m. by the applicant knocking on her door. He asked if he could come in to talk. The complainant let him in. He appeared affected by alcohol. He told her indeed that he had been drinking. A long conversation took place in which he raised with her her relationship with another male person and her attitude to him. In the course of it, he became more and more angry and upset. About midnight the applicant asked the complainant to give him a "head job". She refused. He forced her to suck his limp penis by grabbing the back of her head and pulling her head towards his groin. That constituted count 1. After about five minutes she asked him to leave, telling him that she had to work the next day. He refused to leave, saying that he would be staying until 6 a.m. and that he wanted her to masturbate him and he himself wanted to penetrate her. He demanded that she take off her nightie and panties. She said that she did not want to do so, but became frightened by his tone of voice and did as he asked. He committed indecencies upon her, including touching her breasts and touching and caressing her vagina. The acts just specified constituted count 2. He began kissing her on the lips and again she asked him to stop. She asked him why he was doing those things to her and told him that she did not like it. He replied that it was a payback for when she had "come on to him" on the evening of the ten-pin bowling. They continued to argue about this. By then it was about 4 a.m. The applicant then began masturbating and his penis became erect. He inserted it in the complainant's vagina and had intercourse with her for about ten minutes. She was crying. He removed his penis. That constituted count 3.

47. He began masturbating again until he ejaculated over her face. He demanded in a threatening manner that the complainant come to his home over the following weekend. She was frightened but made it clear to him that she was not impressed with what he had done to her and with his keeping her up all night. She told him to leave. It was about 5.30 a.m. As he was getting dressed a further argument occurred. He let her know that she was not to tell anyone what had happened to her. He said he wanted a relationship with her, but she said that she did not want anything to do with him. He then left. She was sobbing and distraught. She had been scared of him.

50. On 22 February 2000 the applicant admitted to a social worker that he had forced himself on R and had raped her. When interviewed by police on 26 April 2000 as a result of his approach to them the applicant admitted that he did not think the complainant was consenting to the sexual activities and agreed that he had volunteered to the police the previous night that he had raped the complainant in February. He said that he had told his friend Skewes[2]

that he had forced himself on her, meaning that he had raped her. In the interview he admitted that he had had both vaginal and oral intercourse with her to which she did not consent and that she may not have consented to masturbating him. He told the police that he was drunk on the night in question. More than once in the interview he stated that he was wanting a relationship with R and was upset that she was withdrawing from it.

55. The complainant M was aged 40 years at the time the offences were committed upon her. She was a divorcee with four children. She had known the applicant for 20 years but not well. She got to know him better after his wife died in December 1999 and he began living with Michael Skewes and his wife, who were friends of hers. Originally through arrangements for the collection of their respective children, she and the applicant became friends during February 2000, sharing common interests in religion. The friendship developed and a few weeks later they were engaged to be married. The applicant and two of his step-children then moved into her home and commenced a sexual relationship. They planned to marry on 27 April 2000.

58. Late in the afternoon of 21 April 2000 the applicant and the complainant argued about the meaning of a passage in the Bible concerning the re-marriage of divorced persons. The complainant thought that it meant that they could not get married, but agreed not to make any final decision for the time being. She then began watching television. There was an air of tension in the house. The applicant came to her some time later and said that he wanted to go to the bottle shop. The complainant said that she did not want him to go (for he became aggressive when he had been drinking). But he insisted. So, to avoid another argument, she agreed to accompany him as the licensed driver while he drove on his "L" plates. The applicant bought some UDL cans and a bottle of "Passion Pop". He then drove home and started drinking the cans. The complainant went to their bedroom. As the applicant became more affected by alcohol he began accusing her of wanting to "kick" him and his children "out" and at one stage he made his children put on their coats as if to leave. At another stage he left the house on foot for about half an hour and returned with more UDL cans.

61. Later in the evening the applicant shut the complainant in the bedroom, preventing her from leaving, by standing in front of the door. This was the commencement of the unlawful imprisonment the subject of count 4. He demanded that she remove all of her clothes and stand by the lamp. She said that she did not want to do so but he insisted that she do. She was scared of what he would do if she did not comply. She undressed except for her underpants. He then made her pull them high up her legs so that they looked like a "G string" and, after making her perform indecencies, ordered her to sit in a chair opposite him.

64. The applicant came over and stood directly in front of her, pulled down his trousers and demanded that she suck his penis. At first she refused, but she became frightened of his aggressive attitude and complied for a short while. She then managed to dress herself again. She insisted that she did not want to have sex. Many times the applicant forced her to undress and suck his penis. These acts constituted count 5.

67. The applicant and the complainant continued to argue about his demand for sex and her unwillingness to have it until he threw a cordless phone at her, which hit her on the right side of the head and gave her a black eye. That constituted count 6. The applicant then forced her to lick his anus and insert her tongue into it while he watched with a mirror he made her supply. Then he licked her vagina on two occasions. In interludes it seems that she dressed herself again more than once. These acts constituted count 7.

70. The applicant made the complainant bend over a desk (the bedroom had been set up as a "bed-sitter") and inserted his penis into her vagina. He was angry when it would not go in properly and loudly demanded she help him put it in, threatening to penetrate her anus if she did not. He was unable to obtain a full erection and so withdrew it. These matters constituted count 8. He demanded that she suck his penis, tell it that it was beautiful and lick him all over his body several times. He would not let her out of his sight and whenever he wanted to go to the toilet he insisted on taking her with him, holding on to her all the while.

73. He took the complainant into the kitchen and made her select the biggest carrot from the refrigerator. After putting some vaseline on it in the bathroom, he made her lie down on the bed and insert it into her vagina and move it around. She complied because she thought it would be more painful if he were to do it. This constituted count 9.

76. For a long time the applicant was unable to get a full erection and many times insisted that the complainant parade about in various items of clothing and underwear while he masturbated in an attempt to ejaculate. Eventually, at about 4 a.m., he ejaculated. He demanded the complainant get into bed with him. She complied in the hope that he would go to sleep and she would be able to escape from him, but in the end she was too scared to move. The applicant awoke at 5 a.m. and attempted for about two hours to have vaginal intercourse with the complainant but was unable to obtain an erection.

79. The complainant was terrified by the applicant during the night. She was not permitted to leave. She sustained bruising to her right eye, sore ribs, a scratch on her chest and bruising on her leg. She was eventually permitted to telephone Michael Skewes about 7 a.m. He subsequently arrived and removed the applicant and his children. The applicant admitted to him that he had sexually abused the complainant, but said that he would deny it because otherwise he would face a lengthy gaol sentence.

82. The applicant was interviewed about these matters on 23 April 2000 and again on 24 April. In the first interview he in essence said that the sexual activity occurred but was consensual. In the second interview he agreed that he had lied in saying that and, with the possible exception of the first oral penetration, stated that the complainant had not consented and he had known that she was not consenting. He agreed that he had kept the complainant in the bedroom and in the house against her will. He agreed that she was very frightened of him throughout the episode. The police had found at M's home a bible thrown in the rubbish bin and torn up. The applicant told them that he had done that to it, just because he was angry at what she was saying about the Bible. On 22 April he admitted to the social worker referred to in paragraph [11] that he had consumed alcohol and had repeatedly raped the complainant during the night and used objects on her.

85. To summarise as above the offences the applicant committed on each of the complainants, compressing the events of six hours and nine or ten hours or so into a few lines of print and omitting virtually all conversation between the applicant and his victims and in particular the latter's repeated protestations and pleading with him to desist, unavoidably minimises the terrifying ordeals to which they were subjected and the almost unspeakable depravity and humiliation inflicted on them. The devastating effect of the offences upon the two complainants is set out in their victim impact statements. They have been emotionally disturbed and their ability to socialise with others has been greatly impeded. The complainant R said, for instance, that she felt ashamed, used and hurt.

89. I turn to the facts personal to the applicant. Although criticism was directed at some of his Honour's comments, there seems no point either in repeating or in re-stating all that his Honour said. It is sufficient now to state the salient features, leaving more detail to be found in his Honour's remarks. It should be recognised that even his Honour's remarks are but a distillation of the considerable body of factual material and expert opinion which, as already indicated, he had before him. The following summary includes a few additional but uncontroversial facts from the material before his Honour.

92. The applicant was born of an Aboriginal mother by an Irish father. That relationship apparently failed, for on 20 July 1964 at the Geelong Children's Court the applicant and his sister Sharon, 12 months younger than he, were admitted to the care of the then Social Welfare Department on the grounds that they had no settled place of abode, their parents making counter allegations but not appearing in court. In 1965 the applicant and his sister were placed in foster care. From time to time the applicant's natural father sought access to him, but was refused. Various file notes indicated that the relationship between the applicant and his foster parents was strained, that his foster mother showed hostility towards him and that she had difficulty managing his behaviour. His schooling was affected. His Honour noted that at least one report asserted that the applicant was sexually abused by a relative of his foster parents. In the event, the applicant was admitted to the Ballarat Children's Home in 1975. Over the succeeding five years the applicant committed a number of offences. Although they could not be "previous convictions" in view of s.376(4) of the Crimes Act, his Honour expressed the view, arising from a consideration of them, that "the nature and frequency of the offending, together with the dispositions ordered by courts, indicate a high degree of dysfunction, disadvantage and immaturity in your life during your formative years" and said that he took that into account.

95. In 1979 the applicant expressed the wish to find his natural parents. His mother was located and he was released from Turana and went to Queensland to live with her, but the visit was not successful. There was family quarrelling and the applicant returned to Melbourne after only about a fortnight and re-admitted himself to Turana, asking to be placed in the highest security section.

98. It was in the context of the applicant's impending release from Turana on parole in May 1980 that the applicant raped and committed other offences upon a 27 year old student youth worker who was then on a work placement at Turana. According to what the present sentencing judge was told by counsel for the applicant on the plea last year, the applicant had been extremely apprehensive about leaving the security of Turana. The applicant and the youth worker had gone to inspect a flat to which he was to move. He consumed beer there and then committed the offences. As his counsel told the sentencing judge, the person on whom he committed the offences was a person for whom he had respect and with whom he had a friendship. In the sentencing judge's view, Judge Forrest considered that rehabilitation was probable and sentenced the applicant with that as the main purpose of punishment. The applicant was released on parole towards the end of May 1982. His Honour stated that at that time the applicant could be described as having had a clearly disadvantaged life. His education had terminated at the age of 13 years.

101. On his release the applicant kept out of trouble for some years. He had some employment and apparently had some relationships with women. In or about 1991 he met a 32 year old woman through attendance at church. A relationship developed and marriage was discussed. They were receiving counselling about their relationship. The applicant was affected by alcohol on occasions during the relationship. On their return from a counselling session the applicant, who was again affected by alcohol, committed the rapes and other offences to which he pleaded guilty before the Chief Judge. The present sentencing judge, who had the Chief Judge's sentencing remarks, considered that it was clear that the Chief Judge accepted that, by the time he fell for sentence, the applicant had coped with his alcohol problem, had appropriate support and had a base on which to found rehabilitation. The applicant was released on parole in May 1997 on the condition, amongst others, that he had psychiatric treatment relating to his sex offending.

104. In 1994, during that period of imprisonment, the applicant commenced further education. He progressed so well that by the time of his release he had commenced university studies. On release he became a full-time student and completed an arts degree, majoring in literature and sociology. It appears that he also assisted other Aboriginal students with their studies.

107. The applicant's marriage in 1998 has already been referred to. The relationship was somewhat volatile. His Honour accepted that the applicant was emotionally affected by his wife's death and that those emotional effects had not completely dissipated at the time of the present offences.

110. His Honour then turned to the various psychiatric and psychological reports of which the applicant had been the subject over the years, indicating that he had read all the material placed before him. In relation to the material relevant to the 1980 and 1992 convictions he stated that he had exercised caution in respect of any material adverse to the applicant except so far as he was satisfied that the sentencing judge had accepted that aspect of the report. His Honour noted that Dr. Bartholomew considered that the applicant did not suffer any mental or psychiatric illness but needed sympathetic and understanding support. Dr. Walton, his Honour said, did not consider the sexual abuse the applicant had suffered to have had any direct relevance to his present sexual offending per se. The judge said that he took Dr. Vine in her evidence to be agreeing with that. Dr. Walton considered, he said, that the applicant had a personality disorder characterised by poor impulse control, the seeking of prompt gratification and intolerance of frustration. He too considered that the applicant would need support on release. The parole conditions, his Honour said, were an attempt to achieve that objective.

113. Before turning to the reports of Mr. Joblin and Dr. Vine that were tendered in the proceedings before him, his Honour noted the facts which emerged in those proceedings. First, by the time of his marriage in 1998 the applicant had re-established contact with his natural mother and appeared to be on friendly terms with her. Secondly, at the time of the offences against R he had contact with and apparently a friendly relationship with his foster parents. That was not to say, his Honour stated, that there were no residual emotional stresses from his childhood.

116. Allowing for what he said were some factual inaccuracies in the history narrated by Mr. Joblin and reading their reports subject to the two facts just summarised, his Honour said that, having assessed the reports and Dr. Vine's oral evidence, he was prepared to accept the probability that their assessment of the applicant's personality at that point of time was correct and relevant and was also prepared to accept their analyses of the applicant's thought processes in relation to the crime.

119. Dr. Vine reported that it was likely that the women with whom the applicant would have contact, that is, those involved in religious activity, would be desirous of providing care and succour. However, Dr. Vine opined, it would appear more likely that they were open to providing such care rather than being seen as vulnerable. It was not apparent from the applicant's description that he received sexual gratification from performing acts against vulnerable women, but rather that the sexual offences occurred in the setting of his "experiencing anger in reaction to perceived personal rejection and betrayal." Dr. Vine continued:

"The extent of this anger is exaggerated by consumption of alcohol. It is clear ... that Mr. Fuller-Cust has a recognised tendency to become aggressive and increasingly sensitive to perceived rejection when he has consumed alcohol. It is not clear that Mr. Fuller-Cust forms relationships with the intention that such relationships will lead to any particular kind of sexual gratification and in my opinion he cannot be considered to act in a predatory manner."

123. At another point in her report Dr. Vine stated:

"While in my opinion there is an element of domination and demonstration of that dominance in the offences as described, particularly in relation to the offences against [M], and .... there is an element of conscious humiliation and demand, this does not necessarily indicate punishment."

His Honour then noted that Dr. Vine had not been supplied with a copy of Mr. Joblin's report and that during her oral evidence he had put some passages from it to her and she had agreed with them. His Honour set out the passages in his sentencing remarks. The first passage reads in part as follows:

"... it has taken only a minor matter to precipitate what has become a high degree of aggression perpetrated through the offending. Thus, the reaction is totally unjustified in its severity to the provoking circumstance. The explanation for the inappropriate severity of his response lies in consideration of his perception of his history from virtually the day he was born. When he is not drunk he can maintain his feelings over this under control but when he is drunk (which apparently occurs fairly frequently) those feelings predominate."

"There is no doubt that this man expresses his aggression through sexual violence as evidenced in his offending history. These offences are, in my opinion, sexuality in the service of non-sexual needs. They do have obvious sexual connotations but perusal of the material would indicate that he is not particularly sexually excited. Again in my opinion this provides evidence to consider that the offences rather than being designed primarily as ... sexual expressions or symptoms of a serious psycho-sexual disorder, are rather an expression of aggression and symptoms of a psycho-social disorder of some severity. Sexuality is used to emphasise the debasement of females. It is not simply an assault that is sexually used to demonstrate the intensity of his anger." His Honour's instinctive synthesis

131. His Honour then turned, as I see it, to the considerations that he took into account in performing his instinctive sentencing synthesis. Having regard to the grounds of appeal and the disposition of this application that I favour it is desirable to summarise what his Honour stated. His Honour noted first that the applicant had made admissions to the police about the offences and eventually pleaded guilty, albeit after a contested committal during which both victims were cross-examined[3]. Nothing, however, that the applicant's then counsel did aggravated the matter, his Honour said. The judge noted the utilitarian or pragmatic benefits of the plea of guilty, which, in the light of authority subsequent to his Honour's sentencing, are rather to be considered as a willingness to facilitate the course of justice. His Honour then stated that in his view (with which, having regard to the applicant's admissions to police and others, the tearing of the bible and the injuries to M, I agree) conviction was inevitable. He said that that reduced to some extent the weight to be given to the plea of guilty but that it had some weight. His Honour took the plea as some evidence of remorse, but the applicant's letter of 18 September 2000 to Michael Skewes and his note on the latter's reply demonstrated, he said, a high degree of self-pity rather than genuine remorse.

134. Dealing with the relationships that existed between the applicant and his victims, his Honour said that in each case the victim had gone out of her way to befriend the applicant in an attempt to help him cope with his problems. In each case the victim had considered it appropriate to help him by engaging in sexual activity. In each case the victim had some appreciation of the applicant's tendency to violence when affected by alcohol and indeed M knew that the applicant had convictions for rape. His Honour considered the victims vulnerable in the sense that neither would have had the ability to cope with the applicant's response to their perceived right to order their own lives as they saw fit.

137. Because of the applicant's knowledge of how alcohol affected him and because of the fear which his condition in fact induced, his Honour considered the applicant's consumption of alcohol to be aggravating rather than mitigatory. The very existence of the previous convictions reduced the weight of any mitigatory material. That they were similar in nature to the present offences was significant. The crimes were serious and recent legislative changes to the law relating to the actual sexual offences and to the law relating to sentencing for such offences reflected community concern with them. The appellate courts had indicated that sexual offenders should be punished more severely than had previously been the case, for example in 1980 and in 1992. So, too, the policy of the law had changed in respect of oral and object rape. Rape and indecent assault were regarded as very serious offences which interfered with the individual's bodily integrity and threatened physical security, especially if false imprisonment inhibited escape.

140. The offences were not premeditated, his Honour said, nor did he consider the applicant a predator as that word was usually applied in sexual offences. However, the offences occurred in the victims' homes, some violence was used and submission obtained by threats and abuse. His Honour had regard to the types of penetration. The applicant intended to, and did, degrade and humiliate his two victims.

143. His Honour then considered the applicable provisions of the Sentencing Act 1991, with some reference to common law principles or curial elaboration. He began by observing that it was common ground that because of the 1980 and 1992 convictions the applicant was a "serious sexual offender" and consequently a "serious offender" as defined in the Act. Pursuant to the relevant legislation he ordered "that it be entered in the records of the court in respect of these current sexual offences the fact that the offender was sentenced for them as a serious offender". His Honour set out the two principal provisions governing the sentencing of serious offenders, namely ss.6D and 6E of the Sentencing Act. Section 6D provides:

"If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence - (a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and (b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances."[4]

By s.6E every term of imprisonment imposed on a serious offender for a relevant offence "must, unless otherwise directed by the court, be served cumulatively" on any uncompleted sentence or sentences of imprisonment imposed on the offender, whether before or at the same time[5]. His Honour observed, correctly, that the sentencer must fix appropriate sentences for individual offences. Those sentences must reflect the offender's "serious offender" status. Proper application of sentencing principle, absent s.6D(b), meant that the applicant would be imprisoned for a very long period. His age at the date of release, coupled with the prospect that he would take the opportunity for appropriate treatment, left his Honour where he could not be satisfied positively that the applicant would be a danger to the community beyond the period of imprisonment.

148. His Honour indicated that he was conscious of the principle that the head sentence must be determined on the basis that the offender may serve every day of it. He also indicated that, although the Director of Public Prosecutions had not sought an indefinite sentence, he had given consideration to whether the court should do so, on its own initiative, as it was empowered to do, but had concluded that it was not the appropriate sanction in this case.

151. His Honour then said that he was required to, and did, regard the protection of the community from the applicant as the principal purpose for which the sentence was imposed. The purposes of general and specific deterrence must also be given appropriate weight. It is desirable to set out in full the next paragraph from his Honour's remarks as it gave rise, directly or indirectly, to several of the grounds of proposed appeal. His Honour stated:

"I have already referred to the principles which make the principle of totality particularly relevant in this case. The primary directive of the legislation in this regard is that of cumulation of all sentences. Absent the statutory requirement there is, in any event, a principle that there must be a degree of cumulation for multiple sexual or violent offences of such gravity that total concurrency would fail to do justice. This principle applies even if all offences are incidents of the one episode of[6] transaction. Cumulation is the normal rule where the offender falls for sentence for offences on quite separate occasions. In this case the principles involve that there be some concurrency for the offences that relate to the separate victims, but cumulation in relation to the separate episodes. In imposing sentences for multiple offences the sentencer has the final duty of ensuring that the totality of the consecutive sentences is not excessive or crushing, to use the expression in common usage in Victorian sentencing principle. `Crushing' means that one has regard both to the serious nature of the crimes and to ensuring that the sentence does not amount to the destruction of any reasonable expectation of useful life after release. In this case, in order to avoid a crushing sentence, a higher than usual degree of concurrency is necessary."

155. His Honour then emphasised that he considered that justice could be done in the case by applying the principle of proportionality and that he did not consider it necessary, in effect, to proceed under s.6D(b). He noted that imprisonment as a matter of law was a sanction of last resort and that in fixing the appropriate term the sentencer must bear in mind what imprisonment involved, which he proceeded to show that he well understood. He then pronounced the sentences set out much earlier in these reasons.

158. The issues raised by this application, the length of the overall sentence and the numerous matters considered by the sentencing judge have required the summary of his Honour's reasons to be of considerable length. From the recitation it cannot be doubted that his Honour's sentencing remarks were both wide-ranging and painstaking.

162. It is now possible to turn to the grounds of appeal. It is convenient to commence with ground 6. By reason of his 1980 and 1992 convictions, the applicant was a "serious sexual offender" as defined in s.6B(2) of the Sentencing Act and thus a "serious offender" as there defined. But the provisions contained in ss.6D and 6E of that Act relating to the sentencing of a serious offender apply only to the sentencing of such a person "for a relevant offence". By s.6B(3) "relevant offence" is, so far as material, defined in paragraph (c) of the definition as a "sexual offence" or a "violent offence," and those expressions mean an offence listed in clauses 1 and 2 respectively of Schedule 1. Perusal of those clauses demonstrates that neither includes false imprisonment or recklessly causing injury, whilst indecent assault contrary to s.39 of the Crimes Act is a serious offence relevantly only if-

"immediately before or during or immediately after the commission of the offence and at, or in the vicinity of, the place where the offence was committed, the offender inflicted serious personal violence on the victim or did an act that was likely seriously and substantially to degrade or humiliate the victim, whether or not the serious personal violence or that act constituted or formed part of the indecent assault."

166. Mr. Tehan informed the court that he was not arguing that the indecent assaults were not relevant offences, but was submitting that the fact that his Honour had not made a finding as to whether the words quoted were satisfied in relation to either of the indecent assaults[7] showed that an erroneous approach permeated the whole of the sentencing discretion. It is clear that the very acts constituting the indecent assault the subject of count 7 and also the use in connection with it of the mirror satisfied the alternative relating to the degrading or humiliating of the victim. But with respect to the indecent assault the subject of count 2 the position is less clear, particularly in regard to the connotation of the word "immediately" so far as it may be necessary to consider acts immediately before or immediately after the indecent assault. Since, as will appear, I am of the opinion that it is necessary for this court to re-sentence the applicant and since, in the absence of findings by the sentencing judge, this court must for re-sentencing find as a matter of fact whether the quoted words are satisfied in the case of count 2, it is not, I consider, sufficient to rely on Mr. Tehan's concession. That is all the more so if, as I am inclined to think is the case, s.6C(2) applies (despite the heading to the section) to the question presently under consideration, for it requires the court to be satisfied beyond reasonable doubt that the conviction is for a relevant offence. Nevertheless, I am so satisfied that, if the acts specified in paragraph [9] as constituting count 2 do not satisfy the quoted words, the other "indecencies" there referred to, but not specified, which in fact include an uncharged digital vaginal rape, and which were perpetrated in close temporal proximity to the indecent assault, do satisfy the alternative relating to the degrading or humiliating of the victim. If it can be said that the offence in count 1 occurred "immediately before" the commission of that in count 2, then undoubtedly that alternative was satisfied on that score also.

169. The applicant was, in my view, sentenced as a serious offender in respect of all counts on the presentment. In other words, each offence was treated, at least implicitly, as a relevant offence. This is shown by the following matters. First, immediately after the applicant was arraigned, his Honour asked whether it was agreed that he was "a serious sexual offender and accordingly a serious offender from Count 1 onwards?" and both the counsel answered affirmatively without alerting the judge to the requirement of a relevant offence. His Honour referred to that again towards the close of the plea hearing in a context where it was clear that he had all counts in mind. Secondly, in his sentencing remarks, it is clear that his Honour was treating ss.6D and 6E as applying to all the counts, for he said, for instance, that the primary directive of the legislation was "that of cumulation of all sentences" and he treated the whole of the sentence on count 6, being for recklessly causing injury, as cumulative by operation of law. Thirdly, the absence of the findings of fact required by the legislation in relation to the indecent assaults make it clear that his Honour did not turn his attention to whether they or any other of the offences were "relevant offences". Fourthly, at the conclusion of the sentence his Honour directed that "the declaration that you are sentenced as a serious offender" be entered in the records of the court, and the Return of Prisoners signed by his Honour records his directing of a declaration in those unqualified terms.

172. For the respondent, reliance was placed upon his Honour's earlier statement, made when he commenced consideration of the serious offender provisions of the Sentencing Act, that "I order that it be entered in the records of the court in respect of these current sexual offences the fact that the offender was sentenced for them as a serious offender." But, in the face of the four matters enumerated, the words "these current sexual offences" cannot bear the burden which the respondent seeks to place on them. Consistently with his Honour's approach, as evidenced by the matters mentioned, those words should be understood as referring to all the offences on the presentment. Thus, for instance, as is clear, his Honour regarded ss.6D(a) and 6E as governing the sentencing on all counts, including counts 4 and 6.

175. It was argued for the respondent that no error had occurred in relation to count 4 because the judge had only partially cumulated the sentence on that count and that in the case of count 6 he had merely misstated the effect of not making an express direction for cumulation, which could be corrected by application to the County Court. This cannot be accepted: his Honour treated ss.6D(a) and 6E as applying to both those counts, in regard to the individual sentence as well as in regard to cumulation or concurrency. The error affected the sentence. This ground therefore succeeds.

179. It is clear from the context (including his Honour's statement on this subject to defence counsel[8] close to the end of the plea hearing) that by "cumulation" in the statement impugned by this ground his Honour meant total, as opposed to partial, cumulation. He was speaking in terms of the cumulation of what might be called the total effective sentences arrived at for the respective separate episodes. Though it is clear from the passage in which the impugned statement occurs, which is set out in paragraph [41] above, that his Honour applied the "rule" in this case, he did say only that it was the "normal" rule. Nevertheless, total cumulation as between episodes is not the normal rule. Rather, s.16(1) of the Sentencing Act ordains a prima facie rule of concurrency, good reason being required to direct any cumulation: R. v. Mantini[9]. It cannot be said that his Honour was speaking of s.6E when he stated what he said was the normal rule, for the passage in which the impugned sentence statement occurs begins with the expression "Absent the statutory requirement," scil., for cumulation of all sentences, stated in the previous sentence to be the primary directive of the legislation. Reliance was placed for the respondent in argument on Director of Public Prosecutions v. Grabovac[10], where in connection with sentencing for multiple offences Ormiston, J.A. (with whom the other members of the court agreed) stated that, though concurrency was to be preferred, "a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a `crushing' sentence." A similar passage, but without the last clause, is to be found in the Victorian Sentencing Manual.[11] It may be accepted that Ormiston, J.A. was giving guidance as to an appropriate case for departing from the prima face rule in s.16(1), but the important point for present purposes is that, as is apparent from the quotation, he was recommending "a degree of" cumulation, not total cumulation. It was also contended that the impugned statement was correct as being consistent with R. v. O'Rourke[12] and Attorney-General v Tichy[13]. But R. v. O'Rourke was not concerned with cumulation or concurrency as between episodes of offending and in Tichy Wells, J expressly refrained from laying down comprehensive principles on the question.

182. The sentencing judge, therefore, erred in making the statement complained of in ground 7. However, it might be said that, since his Honour treated s.6E as applicable to all offences, the error complained of was immaterial. But to my mind a reading of the passage from his Honour's sentencing remarks set out in paragraph [41] above shows that he also applied what he took to be the "normal rule" at common law. In other words, his Honour relied on a principle which he ascribed to two sources, even though in truth the statutory principle, if applicable, would govern. Moreover, since the statutory provision was not applicable to counts 4 and 6, the direction (or absence of direction) of his Honour in relation to them had to be supported, if at all, by reference to the principle which his Honour took to be part of the general law. It may be added that in respect of counts 3, 6 and 9 his Honour applied the principle without considering whether he should depart from the "norm" or should direct "otherwise". Accordingly, I consider that the error identified in ground 7 was material.

186. The upholding of grounds 6 and 7, agreed in, as I understand it, by the other members of the court, means that the sentencing discretion is re-opened in relation to the direction (or refusals of directions) as to concurrency of the sentences on counts 3, 4 and 6. Further, the sentences and directions as to concurrency in relation to the indecent assault counts are re-opened because consideration was not given to whether they were "sexual offences" as defined, on which the application of ss.6D(a) and 6E depended. But, in my view, the re-opening goes further, extending to all elements of the total sentence. Unless this court thinks that no different sentences or directions for cumulation or concurrency should be passed or given it must re-sentence the applicant. This was the approach taken in R. v. Wakime[14]. The mix of sentences may be affected_: cf Director of Public Prosecutions v. Bulfin_[15]. In the circumstances it is unnecessary for me to deal with the other grounds of appeal.

190. Before re-exercising the sentencing discretion it is appropriate to summarise other reports and other parts of the reports which were before the sentencing judge so far at least as not inconsistent with his Honour's unchallenged findings. In the course of his sympathetic report written in 1980 in relation to the serious offending of that year, Mr. Dowling expressed the view that the applicant, who was then aged 17, was impulsive, emotionally immature, socially insecure and incompetent (which seems to mean clumsy). He had been rejected by both sets of parents, natural and foster. It was clear in Mr. Dowling's view that inappropriate foster placement, with a white couple, totally inappropriate management of him by his foster parents, the inadequacy of the departmental supervision of the placement, and the failure of the attempted reconciliation with his natural mother all had profoundly negative effects on his emotional and social development. It appears from Mr. Lawrence's memorandum that Mr. Dowling found the applicant to be genuinely sorry after committing offences.

194. Dr. Walton in 1992 had opined that it was manifestly apparent that the applicant had great difficulties sustaining relationships and suspected that this fundamental distrust reached right back to his earliest childhood and the maltreatment he received then.

198. The history taken by Mr. Joblin records the following. The applicant's foster parents were very strict Brethren. They were strict and abusive towards him. This lead to resentment on his part. His foster father sometimes belted him severely. Moreover, he perceived that he was different with his Aboriginal background. His foster mother's brother sexually abused him from the age of seven to the age of eleven, but, despite his telling his foster mother of this, nothing was done about it. The foster parents had four children of their own. The applicant has maintained contact with his foster sister only. After he was placed in the Ballarat Children's Home the applicant spent time in Baltara, Turana, Tally Ho Boys' Home and Bayswater Boys' Home. His employment history was unstable, his last job being in 1991. As to previous offending, the applicant told Mr. Joblin that the 1980 offences arose when he became upset with the youth worker and a dispute arose. After release and spending a difficult time with his foster brother-in-law the applicant moved to live with a girlfriend in South Yarra for three years, during which time a daughter was born. They separated in 1985 and he began another relationship with a woman who had two sons. They lived in Ascot Vale and separated in 1986. He moved to Ballarat, but was drinking excessively and abusing drugs. He was taken in by Skewes. Eventually he moved to Melbourne. He met a young woman and they became engaged. That relationship ended apparently four weeks before they were to be married, because of his problems with alcohol. Then through the church he met the victim in the matters for which he was sentenced in 1992. His next relationship was with a woman his age whom he met through the church in Geelong (and whom he married as already mentioned). She was English and had three children, then aged fourteen, seven and four. They bought a house in Geelong. At that stage he was relatively stable, though he still had occasional problems with alcohol. On one occasion they separated for three weeks. He went to Ballarat. They decided to sell their home in Geelong. She moved with the children to live with him in Ballarat in a rented premises. A week later she became ill and shortly thereafter died of meningitis in late 1999. The children's father applied for custody but failed. The children went to live with Mr. and Mrs. Skewes, but the applicant slept at his rented property, drinking excessively.

201. Under the heading "Assessment" Mr. Joblin states that the case is somewhat extraordinary and what separates it from others of such a serious nature is the applicant's very good intellect. He has good insight. The issue with him is simply that he has had and continues to have "considerable anger about his history". He is concerned about his Aboriginality. He is concerned about his Irish father. He is concerned about being "dumped" on a weekend at an infant welfare centre in Geelong and then being fostered to inappropriate persons. He felt isolated and alienated. In addition he was subjected to sexual abuse by an uncle. Mr. Joblin opined: "Given that history and lack of stability, there is, in my opinion, good reason to predict the development of a serious disturbance in psychological functioning of an anti-social nature. Indeed that transpired." By early 1980, the applicant was in Pentridge. In addition he had a history of alcohol abuse. He told Mr. Joblin that basically he was a binge drinker. When at times he reflects on his history he cannot tolerate the anxiety and self-medicates with alcohol. Mr. Joblin continued "Quite obviously, the alcohol exacerbates and aggravates an underlying anger and frustration. Unfortunately [he] has sought to take out that anger on four female victims who have been in a situation with him when he has been upset and drinking." He has difficulty forming appropriate relationships. He feels he cannot trust anyone. The two paragraphs quoted in paragraph [34] above then follow in the report. Mr. Joblin stated that the applicant did not demonstrate any significant psychological abnormality. He is not psychotic. He does, however, have serious psychological and psychosocial problems that stem from his history. He is confused over his Christianity and Aboriginality. He is confused about his relationships. Until the issues mentioned are addressed, "one would have some concern for this man. He needs serious psychotherapeutic intervention....There is considerable work to be done before he can be given an optimistic prognosis."

205. In the section of her report headed "Opinion," besides the views already quoted, Dr. Vine stated that she did not believe that the applicant's pattern of offending indicated a deliberate choice made out of anger and a desire to punish, rather than a response to emotional stress. The applicant was adamant that mixed with his anger was also a desire for a return to intimacy and emotional connectivity. Such a view should not be immediately discounted. The issue primarily related to offences that had occurred in the setting of intimate relationships.

209. It is now possible to proceed to re-sentence the applicant in the light of the facts relating to the offending and to the applicant and of the expert opinions, all summarised above. Several of Mr Tehan's arguments on the first five grounds bear on matters relevant to re-sentencing. Since it has been unnecessary to rehearse and deal with those arguments (though I have closely considered them), I shall set out in summary form the principal reasons leading me to the sentencing disposition I propose.

212. The offences to which the applicant pleaded guilty are, with one possible exception (count 6), serious ones, as is shown by the maximum penalties applicable. This is especially true of rape. Essentially, the two sets of instant offending were committed upon women who had helped or befriended the applicant, were committed upon them in their own homes, at night and after the applicant had drunk himself into intoxication, and involved their being degraded, humiliated and terrorised over periods of many hours. To judge from the expert evidence, the offending sprang from the applicant's anger and resentment in reaction to perceived personal rejection, betrayal and lifetime disadvantage which, as he knew from past experience, he was not able to control after over-indulgence in alcohol. In determining the length of the sentences for all counts other than count 4 and 6 the protection of the community from the applicant is, by virtue of s.6D(a), the principal sentencing purpose and, even in the case of counts 4 and 6, it is, by s.5(1)(e), a relevant purpose. The protection of the community from the applicant is, in my opinion, also a proper consideration, and an important one, bearing on the decision whether, and if so to what extent, to direct otherwise than as provided in s.6E for the cumulation of individual sentences. In addition, general and specific deterrence are important in this case, as is the manifesting of the court's denunciation of the applicant's conduct. Further, regard is required by s.5(2)(f) to be had to the applicant's previous character, a concept amplified in paragraph (a) in particular, and also paragraph (c), of s.6. It must not, however, be given such weight as to lead to the imposition of penalties which are disproportionate to the gravity of the instant offences. Here, the applicant's antecedent criminal history shows that the instant offences were not uncharacteristic aberrations but rather that the applicant manifested in committing them a continuing attitude of disobedience to the law, so that retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. Again, the antecedent criminal history illuminates the applicant's moral culpability in the instant case and shows dangerous propensity on his part and a need to impose condign punishment upon him. In short, the considerations discussed in the joint judgment in Veen v. The Queen [No. 2][16] on this topic are particularly apposite.

215. Mr. Tehan submitted that there were a number of factors suggesting reasonable prospects of rehabilitation. He listed what he called long periods of normal relationships with women, the fact that the applicant was a loving step-father, was intelligent and was not a predator, the fact that the offences were not premeditated and were (he said) not motivated by a desire to punish or to seek out vulnerable women, the applicant's abstaining from abuse of alcohol, and the existence of some remorse. (Dr. Vine's evidence lends some support to the submission that punishment was not a motive, but it is difficult to square that entirely with the applicant's statement to R that what he was doing was a pay back for when she had "come on to him". Mr. Gyorffy certainly did not accept that punishment was not involved. In any event, each episode was an exercise of power and domination.) But the sentencing purpose of rehabilitation must take a subordinate position in the face of the other purposes I have mentioned and particularly the primacy of protection of the community. This is especially so where the two episodes are substantially replicas of two earlier episodes.

218. The applicant's co-operation with police, his plea of guilty (manifesting acceptance of responsibility and a willingness to facilitate the course of justice), and some evidence of remorse are to be taken into account as mitigatory. In addition, his background was relevant. That background had two aspects in Mr. Tehan's argument: first, the sexual abuse he suffered as a child and, secondly, his being placed, from infancy, in unsatisfactory institutional care and highly unsatisfactory foster care, with consequent separation from his natural parents and concomitant disadvantage. In R. v. AWF[17] this Court held that childhood sexual abuse suffered by an offender was relevant to moral culpability, rehabilitation and specific deterrence, though it was made clear that its relevance and persuasiveness varied greatly and that its force was not strong where the charges were of the most serious kind, as these are. The court also made it clear that evidence as to an offender's background may explain, but will rarely excuse, the offending. It must be remembered that the applicant had obtained a university degree before the present offending. In any event, as it seems to me, neither aspect can have much weight here in the face of the nature and objective gravity of the two sets of offences and the principal sentencing purpose of protection of the community and other important sentencing purposes applicable. So far as the applicant's Aboriginality is concerned, the law, as I understand it, is that the same sentencing principles apply to an Aboriginal offender as to any other offender, but there may be particular matters which a court must take into account in applying those principles which are mitigating factors applicable to the particular offender, including disadvantages associated with the offender's membership of the Aboriginal race: Neal v. The Queen[18]; R. v. Rogers and Murray[19]; and R. v. Fernando[20]. (The way of life of the offenders in those cases was far different from that of the applicant in Geelong and elsewhere in Victoria.) The relevant matter on the evidence here, in my view, is that the applicant was brought up in the care that has been described, separated from his natural parents, and I have already dealt with its significance.

221. Mr. Tehan did not challenge the individual sentences imposed below and I see no reason for thinking that any different individual sentence should have been passed. Each is within range and appropriate. Further, he expressly stated that he made no submission that there should not have been some cumulation within episodes and between episodes. What he challenged was the degree of cumulation having regard particularly to the principle of totality. Mr. Tehan's approach is, despite some submissions he made on ground 3, a recognition of the view that there must be a degree of cumulation for multiple sexual or violent offences in a grave case: cf R. v. O'Rourke[21]. Each additional offence here, even within the one episode, involved a further invasion of the victim's bodily integrity or physical security and thereby evidenced further criminality on the part of the applicant: R. v. O'Rourke[22] But the principle of totality must be observed. Mr. Tehan made submissions as to the appropriate amount, if any, of cumulation of the sentence on each of the first 8 counts. I have had regard to his submissions and indeed in respect of some sentences have arrived at precisely the same figure as he suggested. There is no need, I think, to rehearse his submissions on this aspect.

224. Some aspects of the sentence I propose merit specific comment. The sentence eliminates the serious anomaly presently existing between his Honour's requiring total cumulation of the sentence on count 3 and his concurrency order on count 8. In my view, such total cumulation is quite inappropriate. Despite the prima facie rule in s.16(1), I would cumulate a portion of the sentence imposed on count 6 because that was an offence of violence. Less concurrency is merited in the case of the indecent assault the subject of count 7 than in the case of that the subject of count 2 because the former is a particularly depraved and degrading example of the offence. Finally, in my estimation in light particularly of the applicant's criminal history and his prospects, his release at the expiration of any shorter non-parole period than I propose would be in violation of justice.

227. In the light of all the foregoing facts and considerations, and having the principle of totality particularly in mind, I propose that the application for leave to appeal against sentence be granted, that the appeal be allowed, that the individual sentences be confirmed, but that in lieu of the declarations as to concurrency and cumulation it be directed that four years of the sentence on count 1, one year and three months of the sentence on count 2, three years of the sentence on count 3, four years of the sentence on count 5, one year of the sentence on count 7 and three years of the sentence on count 8 be served concurrently with each other, with six months of the sentence imposed on count 6 and with the sentences imposed on counts 4 and 9 and that it be further directed that six months of the sentence imposed on count 6 be served cumulatively upon the other portions of the sentences imposed on counts 1, 2, 3, 5, 7, and 8 and upon the sentence imposed on count 9. By operation of law, the sentence imposed on count 4 and six months of the sentence imposed on count 6 are concurrent with the portions of sentences the subject of the first declaration and with the sentence on count 9, whilst the other portions of the sentences imposed on counts 1, 2, 3,5, 7 and 8 are cumulative upon each other and upon the sentence imposed on count 9. As a consequence of the foregoing the total effective sentence is seventeen years and three months. This appears more readily by the following tabulation, in which the directions and unaltered provisions for concurrency have been translated into cumulation consequences:

I would fix a non-parole period of fourteen years. I would direct, pursuant to s.6F(1) of the Sentencing Act 1991, to be entered into the records of the court the fact that the applicant was sentenced for the offences subject of counts 1, 2, 3, 5, 7, 8 and 9 as a serious offender. Finally, I would make an appropriate declaration as to pre-sentence detention to the date of this court's order.

246. I have had the advantage of reading in draft the reasons of Batt, J.A. and I adopt his Honour's statement of the facts and the grounds of appeal in this case. For the reasons which his Honour has given I agree that the sentence imposed by the learned sentencing judge has been tainted by error with respect to the cumulation orders made on counts 4 and 6. In my view the sentencing error with respect to those grounds taints the entirety of the sentence and requires this Court to re-sentence the applicant: see R. v. Wakime[23].

249. In addition to re-sentencing being necessary on account of the errors in cumulation with respect to the sentences on Counts 4 and 6, it is my view that the aggregate sentence imposed, and the non-parole period which was fixed, were manifestly excessive and constituted a crushing sentence which offended principles of totality.[24] In my view the aggregate sentence, and non-parole period, were vitiated by error because the learned sentencing judge failed to properly assess and evaluate critical factors relevant to sentencing, namely, the impact on the applicant, as an Aboriginal child and man, of separation from his natural parents, and also the impact of sexual abuse which he suffered as a child whilst placed in foster care.

252. In this case the learned sentencing judge had before him a great deal of material, relating to the applicant, arising out of his previous convictions, in 1980 and 1992, on counts of rape. His Honour, who was a judge with considerable

experience in criminal law and in sentencing, heard a very detailed plea in mitigation, and more than once indicated that he was bringing to bear his experience when considering the appropriate sentences to be imposed on the applicant. It is very unfortunate that notwithstanding his Honour's experience some fundamental questions relevant to sentence were not properly addressed.

256. Amongst the material which was tendered before his Honour was a report co-signed by Mr. David Davenport, as acting co-ordinator, and Ms Wendy Brabham, as Director, of the Institute of Koorie Education at Deakin University. That report, dated 21st March 2001, disclosed that the applicant was a student with the Institute from 1994 until he completed his Arts degree in 1999. He had commenced by studying VCE English in prison and had been supported in those efforts by staff of the Institute so as to build his literacy and academic skills to the point of being able to tackle a university course. The applicant, in turn, had contributed to the development of a "Students in Custody Program" and had encouraged other prisoners to commence studies. In the report the following passage appears:

"Institute staff worked very closely with Clem over an extended period and included extensive pastoral care. Clem is a member of the Stolen Generation and had very deep issues relating to his childhood, reflected in the time taken to earn his trust. Clem was very well aware of the scars that he carried from his childhood and consciously set about building his resources through his Christianity and his studies."

260. The report continued by referring to the applicant's continuation of his studies after his release from prison and his gaining a degree, majoring in literature and sociology. He took a role in teaching new students and throughout this period neither smoked nor drank alcohol, and also began a relationship which led to marriage. He then took on the responsibility of parenting the two young children of his wife. The report continued:

"At this time Clem suffered a number of severe setbacks. Information about his time in prison was spread among neighbours and his wife's family and attempts were made to remove the children. His wife suffered a vicious sexual attack and not long afterwards died of meningitis. It is difficult to imagine a more difficult series of events for someone who has done so much to re-integrate into society, to create a stable family situation, and get to a position of being able to make a useful social contribution. Clem has always been aware of the issues that he carries from his childhood and recognizes his need for assistance, both through his religious pastoral care and through counselling. We firmly believe that Clem has made huge progress in the rehabilitation that his childhood requires if he is to fulfil his dreams of leading a normal life and making a contribution to his society. We intend to continue to support those efforts."

264. Having regard to important issues raised in other material which was available to his Honour, the Institute of Koorie Education, a well-respected organisation, was in a very good position to offer relevant evidence to the Court. In the submissions on sentence Mr. Davenport was called to give evidence to expand upon the written report.

267. Mr. Davenport commenced his evidence by saying that the "Students in Custody Program" arose out of the recommendations of the Royal Commission into Aboriginal Deaths in Custody. He had met the applicant in Barwon Prison and helped him in his VCE English studies. Upon his release the Institute assisted the applicant in gaining hostel accommodation in an Aboriginal hostel in Geelong and the applicant became a full-time student at Deakin University. During this time he saw the applicant at least once a week. He said of the applicant that he was always dealing with the issues from his childhood, and that he, Mr. Davenport, tried to concentrate on the positives in the applicant's life.

270. In cross-examination the prosecutor seized on the use of the words "Stolen Generation" in the report, and suggested that that term implied that the applicant had been "snatched away" from his family. Mr. Davenport said that he had used the term "generally" and that the term applied to Aboriginal people who were not brought up with their own families but were brought up with families not of their choosing. He said that whilst he did not know the precise details of the separation of the applicant from his family he knew that he had been brought up in an unhappy family situation, not with his natural family, and that he had "issues relating to his treatment during that time". The prosecutor suggested that Mr. Davenport was guilty of using emotional language. Mr. Davenport said it was an emotional issue but he denied that he was using the term to gain an emotional response. He said that from his conversations with the applicant he understood that he had been brought up in a family which was abusive to him, that he was unhappy there and that he made efforts to find his real family and that when he did locate his real family that contact shocked him as well. The following passage then appears:

"And all of that equates to you coming to the conclusion that he was one of the Stolen Generation does it?---I was using that term generically, in a term, and if you want to correct ... HIS HONOUR: He's backed off, Mrs Williams. MRS WILLIAMS: I think the point's been made, Your Honour. HIS HONOUR: Re-examination, Mr Collins? MR COLLINS: No Your Honour. HIS HONOUR: I don't hold it against your client. MR COLLINS: I did not assume that at all, Your Honour. HIS HONOUR: Yes. MR COLLINS: And, Your Honour, with your permission, if this witness could be excused, please? HIS HONOUR: Most certainly. MR COLLINS: Thank you sir."

274. After the witness withdrew his Honour then remarked to counsel that the foster mother of the applicant had been called as a witness on one of the previous court appearances of the applicant and that a stepbrother from the foster family had provided accommodation to the applicant at that stage in his life. Those comments suggested that it was his Honour's opinion that there was no basis for criticism of the applicant's treatment by his foster family. His Honour then embarked on an irrelevant discussion as to what were said to have been favourable comments made about Victorian judges in the report of the Royal Commission as to the approach to sentencing of Aboriginal offenders adopted by courts. His Honour remarked that in his criminal law experience he knew how judges and juries treated Aboriginal people, and referred to the Sentencing Manual, as to "how their ethnicity is to be taken into account."[25]

277. In the course of discussion with counsel his Honour said that there was no doubt that the applicant "had had a disadvantaged background", and his Honour, after referring to the applicant having been made a ward of State and subsequently being confined to youth training centres and other institutions, observed: "Anybody who went into care and custody was disadvantaged".

280. The assumption that the experience of the applicant in going into care and protection, and the subsequent events in his life, were the same as that of anybody else who suffered those events entirely ignored the question whether the Aboriginality of the applicant was a factor both in the circumstance that he came to be separated from his natural parents and in his own response to that event in his later life. That, in turn, was relevant both in understanding the cause of his offending and in considering what issues might be required to be addressed so as to ensure that it was not repeated.

283. In his remarks on sentence his Honour acknowledged that the applicant had "a clearly disadvantaged life", and that he was Aboriginal. However, as to the significance of his Aboriginality and the matters touched upon by Mr. Davenport, his Honour said this:

"A report was tendered from one Davenport, who also gave evidence. He clearly considered himself as an advocate and was most unimpressive. I do not accept those aspects of his report on which no reliance was placed and do not hold against you Davenport's attempts to mislead the court."

287. In his reasons for decision on the application for leave to appeal Brooking, J.A. said of that passage:

"I note in passing, only to say that it is a matter for regret, an unwarranted attack made by the judge in his reasons for sentence on Mr Davenport, co-author of the latter report."

291. I entirely agree with the observations of Brooking, J.A. and go further. Not merely was the attack unwarranted, it was completely misguided and itself constituted an emotional reaction to the term "Stolen Generation" which was used by the witness (as, indeed, he said), merely as a short hand reference to the experience of Aboriginal people separated from their parents - for whatever reason - at an early age[26]. By responding in the way that he did his Honour failed to appreciate that there were matters of the applicant's Aboriginality and separation from his parents which were highly relevant to sentencing.

295. Sentencing principles are the same for all Victorians. Race is not a basis for discrimination in the sentencing process. Nothing I say in these reasons should be taken as suggesting that Aboriginal offenders should be sentenced more leniently than non-Aboriginal persons on account of their race. The offences committed by the applicant, and admitted by him, are extremely serious - as I shall discuss. That is not to say, however, that considerations and factors of race may not be taken into account on sentencing, where they are relevant.

298. To ignore factors personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn, the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not re-offend and, in turn, to ensure the long-term safety of the public.

301. To have regard to the fact of the applicant's Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that a proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified, and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender's situation which might arise by virtue of the offender's race or history would not be overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored.

304. In Neal v. The Queen[27] Brennan, J. held:

"The same principles are to be applied, of course, in every case, irrespective of the identity of the particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account in accordance with those principles, all material facts, including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the administration of justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal."

308. In R. v. Rogers and Murray[28] Malcolm, C.J., after observing that it would constitute racial discrimination were the sentencing of Aboriginal people to be based on their Aboriginality, noted:

"It follows from this that the sentencing principles to be applied in relation to a sexual offence committed by an Aboriginal must be the same as those in any other case. It is apparent, however, that there may well be particular matters which the court must take into account in applying those principles, which are mitigating factors applicable to the particular offender. These include social, economic and other disadvantages which may be associated with or related to a particular offender's membership of the Aboriginal race."

312. In R. v. Gibuma and Anor[29] McPherson, S.P.J. (with whom Shepherd and De Jersey, JJ. agreed) was concerned with a Crown appeal in which the sentencing judge had remarked that the level of sentencing for indigenous people in Queensland, even for serious crimes, had generally been at a lower level than for non-indigenous persons. As to those remarks McPherson, S.P.J. observed:

"A particular complaint is levelled by the appellant against this passage in the sentencing remarks. It is suggested that it embodies a principle, which is erroneous, that indigenous people are, because of that characteristic alone and without more, to be treated differently from other Australians in the matter of sentencing. For my part, I did not so regard his Honour's remarks. I venture to suggest that it is neither colour nor race that commonly forms a determinant or a factor in matters of sentencing of the kind to which his Honour referred. It is the background, education, cultural outlook, and so on, of the particular individual involved. Considerations of that kind apply with equal force to persons who are not indigenes, or who are of races other than those commonly encountered in the northern part of the State. I do not doubt that this was both the opinion and the impression that his Honour was intending to convey by the remarks he made that have been challenged in this court."

316. In R. v. Woodleigh & Ors[30] the Court of Criminal Appeal in Western Australia considered a Crown appeal with respect to sentences imposed upon Aboriginal offenders for offences, including violence against women, committed against Aboriginal victims. The court rejected the notion that Aboriginal women would not receive proper protection from the courts by virtue of the fact that the offenders were also Aboriginal. Nonetheless, the court recognized that factors relevant to sentencing - on ordinary principles of sentencing - bearing upon the Aboriginality of the offender may ameliorate the sentence which would otherwise have been imposed. The court was concerned with the question whether the individual circumstances of offenders had been properly taken into account by the sentencing judge, or whether the offenders were treated as a group or class, without proper individual consideration. The court noted, first, as follows:

"We do not quarrel with the sentiment that there are many Aborigines who require special consideration when they appear before the courts. Each, however, needs to be dealt with individually and on the merits applicable to each. On his Honour's approach, who were the least blameworthy were treated exactly the same as those who were most blameworthy. . . . The principles applicable in connection with the sentencing of Aborigines are the same as those applicable to all members of the community, although the application of those principles to a particular Aboriginal offender will frequently lead to a disposition which is different from that which it would have been in the case of a non-Aboriginal offender."[31]

320. After a helpful analysis of relevant cases Wood, J. in R. v. Fernando[32] extracted a number of propositions relevant to the sentencing of Aboriginal offenders, and aspects of two of those propositions stated by his Honour have relevance here. His Honour noted, and I agree, that in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt, yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. Secondly, and subject to the important consideration of the terms of s.6D and s.6E of the Sentencing Act, I also accept, that, as his Honour observed:

"(I)n every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part".

324. In a paper on sentencing of Aboriginal offenders Toohey, J. made the important observation that Aboriginality was not always an advantage for an offender on sentencing. His Honour noted:

"The relevance of Aboriginality is not necessary to mitigate; rather, it is to explain or throw light on the circumstances of an offence. In so doing it may point the way to an appropriate penalty. Aboriginality may in some cases mean little more than the conditions in which the offender lives. In other cases it may be the very reason why the offence was committed."

"The suggestion, sometimes made, that Aboriginality should be included among mitigating factors to be given some formal recognition is the more suspect. It carries overtones of patronage and superiority .... It is demeaning to Aborigines to suggest that somehow their Aboriginality is necessarily a mitigating consideration. Rather it is, to echo the words of Professor Rowley, `a matter of justice' (Rowley, A Matter of Justice, 1978). Aboriginality may sometimes be a circumstance of aggravation in the sense that an Aboriginal community may regard an offence as more serious than would a non-Aboriginal community. Bringing liquor into the community is one example. But any sentence must be subject to the over-arching notion of proportionality ..."[33]

332. It may follow, therefore, that when applying the sentencing principles which are common to all Victorians different outcomes may result for an Aboriginal offender simply because mitigating factors in the background of the offender, or circumstances of the offence, occurred or had an impact peculiarly so because of the Aboriginality of the offender.

335. The circumstances in which the rape offences in 1980, 1992 and the present rape offences were committed arose out of emotional stress, that stress, on the evidence of psychiatrist, Dr Ruth Vine, and psychologist, Mr. Ian Joblin, in part relating directly to the applicant's fears of rejection which were in turn closely related to his understanding of his separation from his natural mother and the consequent impact of that experience on his life. Even having regard to considerations of deterrence and the protection of the community emotional stress is a relevant consideration to be taken into account by a sentencer. In Neal Brennan, J. observed[34]:

"Emotional stress which counts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor (see D.A. Thomas, Principles of Sentencing (2nd ed., 1979), pp.194, 207). The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence (Bright [1916] 2 K.B. 441 at 444, per Darling, J.). Consideration of emotional stress is commonplace in the exercise of a sentencing discretion: see, for example, the observations of Jacobs, J. in Veen [1979] HCA 7; (1979) 143 C.L.R. 458 at 490. A particular example of emotional stress arising from problems existing in Aboriginal communities in North Queensland was furnished to us in the transcript of remarks made by Dunn, J. (unreported, Supreme Court, Queensland, 18 September 1981) in passing sentence upon Alwyn William Peter who had been convicted of manslaughter of a woman on another Aboriginal reserve in North Queensland."

339. Brennan, J. went on to observe that the facts in Neal also pointed to "some special problems" which might explain, although not justify or excuse, Neal's conduct. He observed that in Neal's case a dramatic and emotional confrontation had occurred with the non-Aboriginal victim "apparently produced by a deeply-felt objection to departmental control of the reserve". Brennan, J. then made the observations as to the relevant principles in sentencing Aboriginal offenders which I have earlier noted.

Aboriginal offending and the factor of childhood separation

343. Considerations arising from an offender's Aboriginality may exist whether the Aboriginal person is living in an urban or a rural situation. In any instance the Court is seeking to gain a proper appreciation of the circumstances of the individual offender for the purposes of sentencing, including such factors relevant to that offender as the person's own experience as an Aboriginal person.[35]

346. When regard is had to the welfare and other expert reports which were tendered before the learned sentencing judge it emerges very clearly that far from his Aboriginality being an irrelevance to the circumstances in which the offending conduct occurred, it is pivotal. Indeed, the history of the applicant has remarkable similarities to many of the cases reported upon by the Royal Commission into Aboriginal Deaths in Custody. The impact of a person being separated from family, endeavouring to regain contacts with that family, being rebuffed in those efforts, and thereupon suffering anxiety about being denied the opportunity to fully embrace his or her Aboriginality, was often addressed in individual reports and in the findings of the final report of the Royal Commission. The Commissioners recognised the impact of a person, in those circumstances, being socialised not into the family and kin network which would otherwise be the experience of an Aboriginal person living in urban circumstances but being socialised, instead, by the need to survive in institutional communities, including juvenile detention facilities and homes.[36] That is not to say that in all cases of such separation the impact on the child in later years must have been adverse: that possibility, however, needs to be recognised[37].

350. A report from Mr. Austin Dowling of the Social Welfare Department (then Community Welfare Services Department) was provided to the judge who sentenced the applicant in 1980. This was the first occasion of rape for which the applicant was before the Court. The applicant was born on 11 May 1963, and was aged 36 at the time of the present offences.

353. The Welfare report noted that the applicant and his sister[38] were placed in the care of the Social Welfare Department on 20 July 1964, on the grounds that they had no settled place of abode. The author reported that their mother had said that the father had taken the children away from her, whereas the father said that the mother had deserted the children. Neither parent appeared in Court when the order was made. The mother subsequently applied for the return of the children but it was noted by the Department that the mother herself had been a Ward of State as a neglected child, when living in Queensland, and it was reported that "she was likely to lapse into a career of vice".

356. In December 1964 the father (who was not an Aboriginal person) asked for the return of the children. That request and subsequent requests made both by him and by the mother for access to their children were refused by the Department. In May 1965 they were fostered to a non-Aboriginal family. It is unnecessary for the purposes of these reasons to identify the name of the family. Mr. Dowling, the author of the report which was presented to the Court in 1980, was a senior officer of the Welfare Department. He made the frank acknowledgment that "placement of Clem and his sister with (the foster parents) was a misjudgment". To explain that conclusion he set out a history of events which had occurred during the foster parent arrangements. Five months after the fostering had occurred the foster parents told the Department that they were not interested in fostering part Aboriginal children.

359. The applicant's natural mother asked to see the children whilst they were held in a children's home prior to being fostered. The matron of the children's home deliberately refrained from acting on that request and when the applicant's mother visited the children's home she was told that her son had been fostered.

362. Mr. Dowling reported that the mother had never been consulted about the fostering of her son or daughter. The files record numerous attempts thereafter by both father and mother to see the applicant. The father had also not been consulted about the fostering of the applicant. The attempts by the father and the mother to see the applicant and his sister continued for years, without success.

365. Over the period of some three years the foster parents sought and had 10 or more babies temporarily placed with them, and the Department began to question whether the placement of so many babies in the care of the foster parents was affecting the applicant and his sister. By 1972 the foster mother reported to the Department that the applicant was a constant source of irritation and annoyance to the family.

368. In 1972 an officer of the Department reported that the applicant was "at risk" with his foster parents, and a psychiatrist who saw the applicant reported that he was "fairly disturbed". The reason for his disturbance was not given but it is notable that the applicant subsequently reported that whilst in foster care he was subject to sexual abuse by the brother of the foster mother. The suggestion that the applicant had been subject to sexual abuse was treated with suspicion by the learned sentencing judge in the present case, notwithstanding the fact that there was ample evidence before him to support the conclusion that the events had in fact occurred and had been earlier reported on by the applicant. I return to this issue, later.

371. In March 1973 (when the applicant was nine years old, and his sister eight) the foster mother asked if the Department would take the children back, as she felt that she could not cope with them any longer. Arrangements were then made to place the children in an institution. A few days later the foster mother told the Department that the family now realised that "they never fully accepted Clem and Sharon as members of the family". She advised, however, that they were now prepared to accept them as their own and the Department agreed that they should stay with the foster parents. Nine months later the foster mother reported that she was unsure whether the applicant and his sister should remain with her as she felt her own family was suffering and she continued thereafter to make reports of the difficulty of coping with the applicant and his sister.

374. In June 1974 the foster mother admitted "she feels ashamed to own (sic) Clem at times". She said that as to his schooling, she did not want to send him to the same school as her own children as she did not want him to be there with the same name. In June 1974 a field officer reported that the applicant was being denied activities that he enjoyed (such as singing and swimming), by his foster parents, who were members of a fundamentalist religious sect. He complained that he had been "belted all his life". In July 1974 the foster mother reported uncertainty about whether she should keep the applicant, but a child psychiatrist prevailed on her to persevere with the arrangement because he felt it was better than the applicant suffering the rejection of being returned.

377. Problems continued in following years until August 1975 when the applicant was admitted to Ballarat Children's Home and the foster placement came to an end. It was at this time that Mr. Dowling came to know the applicant and had responsibility for him. He reported that in February 1979 the applicant asked if Mr. Dowling could find the applicant's natural parents. The mother was found to be living in Queensland and upon his release from Turana in October 1979, the applicant flew to Queensland, but remained only about a fortnight. Mr. Dowling reported:

"There was much quarrelling in the family and Clem came back to Melbourne, readmitted himself to Turana and asked to be placed in Poplar House - the highest security section. He felt most at ease there."

381. In his conclusion to his 1980 report, Mr. Dowling, who was Deputy Superintendent of the Central Highlands region, reported as follows:

"Clem is a part Aboriginal, late adolescent boy who has been rejected by two sets of parents - his natural and his foster. His personality is characterised by impulsiveness, emotional immaturity, and social insecurity, and incompetence. It was thought at one stage, when Norwood Children's Clinic in Ballarat carried out an EEG, that Clem may be suffering from a minimal brain syndrome of some sort. However, it is clear that the inappropriate foster placement (almost all placements of black children with white families fail), the totally inappropriate management of Clem by his foster parents and the inadequacy of the Social Welfare Department supervision of the placement - particularly the failure to terminate the foster care placement when (the foster mother) was so directly crying for help - and the final failure of the attempt to be reconciled with his natural mother, have all had profoundly negative effects on Clem's emotional and social development. While it must be the case that society has to exert control over Clem to prevent further anti-social behaviour, it must also be so that the changing of his unwanted behaviour can be achieved only by expert care over a period of time. The court is respectfully requested to consider how best this may be done."

385. In notes of an interview between the applicant's then solicitor and Mr. Dowling, which notes were tendered during the 1980 sentencing hearing, Mr. Dowling expanded on the contents of the earlier Welfare Department report to which I have referred. In 1971 the Welfare Department files recorded that the applicant was not getting on well at school and was getting into fights and reported "he was proud of his colour in an aggressive way". As to the 1971 report about school yard fighting and the applicant's pride in his Aboriginality, Mr. Dowling stated:

"Generally speaking, most people say that Clem was ambivalent about his 'Aboriginality' even negative as (Mr. Dowling) was inclined to believe, yet this is one instance where he appears to identify strongly with his Aboriginality."

Mr. Dowling further reported that the applicant, as at 1980, preferred the security of Poplar House at Turana and the security of Pentridge, rather than the insecurity of being outside such an institution.

391. When the applicant was taken from the foster family and placed back into care he was transferred to Ballarat Children's Home, from which he ran away on numerous occasions. He was then placed in a variety of institutions, including Tally Ho Boys Home, Bayswater Boys Home and at the age of fourteen he was transferred to Turana. He absconded from Turana on many occasions, often to visit his sister, who had herself been confined to institutions such as Winlaten and Tally Ho.

394. The first offence of rape occurred in 1980, at knifepoint, when the applicant was aged 17 years. He was due to be released from Turana the day after he committed the offence. He raped a social worker who had accompanied him on day release the day before his release,. They had drunk alcohol together and then the applicant, who had become intoxicated, suddenly turned violent. I will discuss this offence in more detail later.

397. Upon release from imprisonment for the 1980 rape (he was sentenced to 5 years maximum, with 2 years 6 months minimum) he commenced a relationship which lasted between the ages of 19 and 22 and he had had other relationships since that time.

400. The second serious offences occurred in 1992 with a woman with whom he had an apparently stable relationship but whom he raped and humiliated at knifepoint and abducted. The applicant and the woman both belonged to a charismatic religious sect. They had planned marriage but disagreement about pre-nuptial sexual relations had led them to arrange a counselling session with their pastor. On the day of the appointment the applicant got drunk and the session was cancelled. He later told psychologist, Mr. Joblin, that he feared that the pastor was going to order the relationship to be terminated. He could not explain why he had committed the offence and was deeply remorseful. He was sentenced to a minimum of 5 years and 6 months' imprisonment. On his release from prison in 1997 some counselling by psychologists was attempted, but the applicant felt the staff at the clinic he attended did not understand him. It was during this last sentence that he commenced his studies, referred to earlier.

403. Having made brief reference to the 1980 and 1992 prior rape offences, by way of providing context, I now return to analysing the sentencing issues which emerged in both of those court cases.

406. A report from consultant forensic psychiatrist Dr. David Sime dated 6 October 1980 which was provided to the Court on that occasion, recorded that the applicant had a very positive and warm reaction to the Turana staff including the social worker against whom the offence was committed. Dr. Sime recorded that the applicant could not understand why he committed the offence, given that he liked and respected the person concerned, but Dr. Sime recorded that "it would appear that there was no prior intention to sexually assault (the victim) previous to discussion which began to develop concerning Aboriginals. It would seem that somewhere in the conversation about this time, there was a trigger point which set off a reaction which switched his attention and identification of (the victim)".

409. Dr. Sime recorded that a pleasant conversation with the victim (whilst they were drinking beer together) changed when the social worker victim disclosed that she had read files on the applicant and knew about the circumstances of his separation from his parents. Dr. Sime recorded that the applicant:

" . . . was also evidently upset that (the victim) knew so much about him, and then when the subject moved to a discussion on Aboriginals, this sparked off his very deep feelings of bitterness, resentment, and feelings of rejection which emanate from his background. There is no doubt at all that these feelings are extremely strong and in this area of his mental makeup he is emotionally very disturbed. (The applicant) is highly sensitive about his parental background and that was exacerbated in recent (times) by a disastrous visit to his real mother in Queensland. She had been discovered for him after pressure by (the applicant) on the authorities to find his parents. When he arrived he was to be (extremely) disillusioned when he discovered that she was an alcoholic and sexually promiscuous. The visit was only to last just over a week and ended up in a drunken fight with his mother's de facto. (The applicant's) attitude towards his parents had been very ambivalent. On the one hand he felt very strongly that they had deserted him by placing him in a home and not making contact with him afterwards. On the other hand he was (word unclear) identified as an Aboriginal with his true parentage and highly sensitive about it. Thus in the situation of the sexual assault and physical aggression towards (the victim) she appeared in some way to have become identified with his mother and his action was an explosive attempt to humiliate her. (The applicant) has a little insight into this. He described his emotional state to me as 'carrying a load on my shoulder about mother'."

413. The applicant (as he apparently had indicated in his record of interview with police at the time) indicated to Dr. Sime that since breaking with his mother he felt his emotions piling inside him, and that at the time when he assaulted the victim:

"I lost complete control. I did not ask for anything. I think I must have taken it all out on her. There is nothing more mean to a woman than rape - she'll remember me by this ... I was not sexually aroused. I was not thinking about sex."

417. Dr. Sime reported that the applicant had a serious alcohol problem and that alcohol was a factor in him becoming aggressive in the manner in which he did on that occasion.

420. Dr. Sime reported to the Court that the applicant's case was very complex and unusually difficult to formulate advice for the Court. It was not a straightforward case of sexual assault and there was a complicated emotional background which was involved. He reported that the applicant was very institutionalised and had become dependent on institutions. As I have said, the assault and rape on this first occasion occurred the day before he was due to be released from Turana.

423. A psychiatric report from Dr Alan Bartholomew was also provided to Judge Forrest, who sentenced the applicant in 1980. Dr. Bartholomew also identified the applicant's Aboriginality as a factor in his case, in addition to the fact that since the age of 12 his life had been spent largely in institutions. Although the record of interview was not available to the sentencing judge in the present case, Dr. Bartholomew's report was, and in that he reported the applicant's concern about his racial status. Dr Bartholomew directed the sentencing judge's attention to a number of answers in the record of interview conducted by police which he said highlighted the applicant's "concern over his racial status". The record of interview is no longer available. Dr. Bartholomew reported that for all of the problems which the applicant presented, he nonetheless "has some very real strengths".

426. We have not had access to the sentencing remarks of the judge in 1980, but it is plain that the applicant's anxiety concerning his Aboriginality and his problematic welfare history, as relevant factors to his offending, were before the court.

429. On the occasion of sentencing in 1992 Chief Judge Waldron had a psychiatric report from Dr Lester A. Walton which gave a detailed history of the welfare experience of the applicant, his complaints of sexual abuse, and noted his sense of insecurity in relationships. He noted the applicant was a binge drinker and had difficulty sustaining relationships. He concluded that he had a fundamental distrust of relationships, which "reaches right back to his earliest childhood and the maltreatment he received then".

432. I turn, then, to the present case, and the approach adopted by the sentencing judge on this occasion.

435. In my opinion, it is quite apparent in reading the transcript of the submissions on sentence in the present instance, as well as the sentencing remarks of the judge, that his Honour saw no significance in the Aboriginality of the applicant. This was so notwithstanding the contemporaneous and historic reports (from welfare officers and from psychiatrists and psychologists) and other evidence which was presented to him which, on close examination, would have indicated otherwise. In fairness to his Honour, it is not clear to me that this issue was highlighted by counsel for the applicant, but his Honour's response to the evidence of Mr. Davenport may have been a factor bearing upon counsel's decision as to the issues on which he thereafter focussed attention.

438. Dr. Ruth Vine, a consulting psychiatrist, presented a report dated 9 April 2001, in which the background of separation of the applicant was detailed, as was the fact that the fostering arrangement had been a failure. Dr. Vine noted (and this is confirmed by the 1980 welfare files) that the adoptive family had very rigid and set ideas and were members of the Christian Brethren sect. They imposed strong religious views on the applicant, who considered that he and his sister had been adopted by them "in part because they wanted to rescue them because of their Aboriginal background". The applicant reported to Dr. Vine that he had been sexually molested by a relative of the adoptive family between the ages of 7 and 11.

441. Dr. Vine noted that apart from sexual offences the applicant had a very limited involvement with the criminal justice system and was a person who thought deeply about his offending and tried to come to grips with it. She noted his exceedingly disturbed background and noted, too, that he struggled to understand his past, and to come to terms with his situation. He had had numerous relationships without there being any aggression with his partner. She considered that the sexual assaults on women for which he had been convicted did not arise out of a need for sexual gratification but reflected anger in reaction to perceived personal rejection and betrayal. His actions were accompanied by alcohol misuse. She did not consider that he acted in a predatory manner. She considered the offending was "likely to be a consequence of his experience of multiple rejections during childhood". Dr. Vine added:

"I do not believe that there is an indication that Mr. Fuller-Cust's pattern of offending indicates a deliberate choice made out of anger and a desire to punish, rather than a response to emotional stress."

445. Dr. Vine, in oral evidence, said that she considered the fact that the applicant had himself been a victim of sexual assault was relevant to his own offending. In the course of an earlier discussion with counsel the learned sentencing judge expressed some disbelief about the credibility of assertions of childhood sexual abuse which were often raised by persons facing sentence. His Honour observed that such assertions of sexual abuse was a recent phenomenon in the criminal justice system. Later, when Dr. Vine gave evidence, the judge queried whether there was any inevitable correlation between early sexual assault and later criminal conduct. Dr. Vine agreed that, by and large, people deal with such events, but added that:

"What the research shows is that those who are most likely to deal with traumatic events, even horrific and continuous traumatic events, are those that have in other areas of their life a degree of consistency, and love, and containment, and I think Mr. Fuller-Cust's tragedy, if you like, is that really the deficits in his life were in many, many areas and not just in his very early life, but also throughout his middle childhood and despite, I am sure, the best intentions of those in charge of the various institutions also throughout his adolescent life, so that he really never had the opportunity to develop a stable sense of who he was and I think that it is that cumulative effect that makes the vulnerability to acting in ways following those earlier events much greater."

Dr. Vine noted how the applicant struggled to understand his background and was very vulnerable to feelings or suggestions of rejection.

450. In questioning Dr. Vine, the prosecutor asserted that suggestions made by the applicant that he had been rejected by his mother should be discounted, by virtue of the fact that when he married in October 1998 his mother was in attendance, thereby demonstrating "a loving relationship with his mother". Dr. Vine did not agree. She thought that whilst that might appear to be so on the surface (and said that she was pleased that there was some degree of reconciliation with his mother), she doubted that that would mean that he did not still believe that she had failed to care for him as a child, or would remain upset that he had been placed into foster care. Dr. Vine noted that the applicant was not a predatory person and that these instances of rape had occurred in very specific types of situations, whereas in other circumstances he was a firm and loving stepfather and a friend to other people, including his victims. Dr. Vine said that the applicant had an underlying resentment and an underlying sensitivity to any perception of a relationship being taken away. Dr. Vine said that "the experiences that we endure, or enjoy as children are powerful ones and are very hard to negate by later experiences".

453. Dr. Vine said that for the future what was required was a prolonged intensive period of psychological treatment, and said there was the capacity for treatment to be successful.

457. Although the learned sentencing judge queried whether the suggestion of sexual abuse was a recent report by the applicant that was not the case. It was referred to in the report by Dr. Lester Walton, a consulting psychiatrist who reported to the sentencing judge in 1992 and who provided details of the sexual abuse as it had been relayed to him by the applicant. His report also identified the person against whom the allegation was made. Dr. Walton also reported that the difficulties the applicant had with relationships, and his sexual offending behaviour, "reaches right back to his earliest childhood and the maltreatment he received then".

460. In my view, it was essential that the question of sexual abuse against the applicant, as a child, should have been fully evaluated and considered by the sentencing judge: see R. v. AWF[39]. Factors related both to questions of the applicant's Aboriginality and to childhood sexual abuse played an important part in his offending, and may well have been interrelated.

463. In a report by Mr. Ian Joblin, a forensic psychologist, dated 23 March 2001, which was also tendered in the present case, once again the history of the applicant was set out in detail, including the fact that the applicant had discovered much about his own history by obtaining his welfare file. Mr. Joblin reported that shortly before the applicant made contact with his mother, whilst he was in Turana, he learned from his mother that his father had committed suicide. Mr. Joblin also identified the applicant's Aboriginal background as having been a factor in the breakdown of the fostering arrangements with the foster parents. Mr. Joblin reported:

"The issue with this man is simply that he has had and continues to have considerable anger about his history. He is concerned about his Aboriginality. He is concerned about his Irish father. He is concerned about being 'dumped' on a weekend at an infant welfare centre in Geelong and then being fostered to persons who he believed accepted responsibility for him for inappropriate reasons."

He again recorded childhood sexual abuse allegations and the problems that alcohol created. Mr. Joblin reported that the applicant expressed his aggression through sexual violence and that -

"rather than being designed primarily as a sexual expression or symptoms of a serious psycho-sexual disorder (his offences) are rather an expression of aggression and symptoms of a psycho-social disorder of some severity. Sexuality is used to emphasise the debasement of females. It is not simply an assault but a sexuality used to demonstrate the intensity of his anger."

469. Mr. Joblin recorded that the applicant's psychological and psycho-social problems stem from his history, and that counselling and psychiatric programs in the past have not addressed the issues that are vital determinants in the mental state which produced the offences. That observation is very important, in my opinion.

472. Mr. Joblin reported that the applicant was confused over his Christianity and Aboriginality and confused about relationships. He considered that until these issues were addressed there would be concern about his future, and Mr. Joblin considered that the applicant needed serious psycho-therapeutic intervention and that considerable work was required to be done with him before an optimistic prognosis could be given, but that "with intervention at a level stronger than that attempted previously the bases for his offending may be resolved".

475. Thus, both Dr Vine and Mr. Joblin accepted that the applicant could respond to appropriate therapy, which required understanding of the deep seated causes of his offending. The opinion of Dr Walton in 1992 was also entirely consistent with that conclusion.

478. In his remarks on sentence the only reference to Aboriginality was his Honour's observation that the applicant was "born of an Aboriginal mother by an Irish father". He added that:

"Your parents' relationship and failure to care for you attracted the attention of the relevant government authority within about 12 months of your birth and court orders were made that you and your sister be placed in the care of government."

As to the allegations of sexual abuse after being placed in foster care, his Honour reported that:

"At least one report asserts that you were sexually abused by a (foster parent's relative)."

484. His Honour made no finding of fact that the applicant had in fact been sexually molested. Not only had that report been repeatedly made, but very detailed allegations were made in the course of the plea, including the suggestion that the person (who was named, but was deceased) had died at a time when he was also the subject of allegations of sexual abuse by persons other than the applicant. His Honour accepted that "your history showed a high degree of dysfunction, disadvantage and immaturity in your life during your formative years". He noted that the applicant had travelled to see his natural mother and came away with a feeling of rejection which, his Honour thought was "heightened no doubt by your ignorance of the fact that such rejection was not uncommon."

487. His Honour accepted that the applicant had had a "clearly disadvantaged life". His education had terminated at 13 years. As to the matters set out in the reports of Dr. Sime and Dr. Bartholomew and after dealing with, and dismissing the evidence of Mr. Davenport, his Honour observed:

"Dr. Walton did not consider the sexual abuse you suffered had any direct relevance to your present sexual offending per se. I took Dr. Vine and her evidence to be agreeing with that."

It is difficult to understand how his Honour could have drawn that conclusion from the report of Dr. Walton to which I have earlier referred or from the evidence of Dr. Vine. Plainly, both regarded the history of sexual abuse as being of considerable significance in the applicant's case.

492. In dealing with the evidence of the applicant's sense of rejection by his natural mother, his Honour appeared to unreasonably discount the weight which Dr. Vine and Mr. Joblin attached to that information, by saying that their information should be read subject to the material which had emerged during the plea as to the attendance of the natural mother at the applicant's wedding, and the fact that the applicant had, at the time of these offences, been attempting to reconcile with his foster parents.

495. In my opinion, the treatment of factors personal to the applicant and as to his antecedents in his Honour's sentencing remarks was quite inadequate and meant that critical factors were not adequately addressed on sentencing.

499. For reasons discussed in the judgment of Batt, J.A., the applicant must be re-sentenced, in any event. The errors which I have identified in the sentencing process merely add additional reasons why, in my opinion, that must be so. Counsel for the respondent, Mr. Gyorffy, accepted that in exercising my own discretion in re-sentencing the applicant I am entitled to draw my own conclusions from the material which was available to the judge on sentencing. Furthermore, in drawing my own conclusions from that material for the purpose of sentencing I am also entitled to have regard to reports such as that of the Royal Commission into Aboriginal Deaths in Custody, the reliability of that report as a relevant reference source as to sentencing issues having been recognised by this Court[40].

502. The Royal Commission into Aboriginal Deaths in Custody, in the National Report of the Commissioners, identified the over-representation of Aboriginal people in prisons and the underlying factors which led to such deaths in custody. The Commissioners identified one factor being the impact on Aboriginal people who had been separated from their natural families at an early age and placed under the control of welfare institutions and/or being adopted out. Of the 99 deaths in custody investigated by the Royal Commission, 43 of those who died experienced childhood separation from their natural families, through intervention by State authorities or by missions or other institutions[41]

505. The Royal Commissioners acknowledged that many non-Aboriginal people who participated in the removal of children from their parents in such circumstances did so for the best of motives, and that in some cases opportunities were offered to the children concerned which might otherwise not have been obtained. The Commissioners noted, however, that for most the consequences were negative. The Commissioners observed:

"The consequence of this history is the partial destruction of Aboriginal culture and a large part of the Aboriginal population, and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal and non-Aboriginal people. The other consequence is the considerable degree of breakdown of many Aboriginal communities and a consequence of that and of many other factors, the losing of their way by many Aboriginal people and with it the resort to excessive drinking, and with that violence and other evidence of the breakdown of society. As this report shows, this legacy of history goes far to explain the over-representation of Aboriginal people in custody, and thereby the death of some of them."[42]

The Commissioners noted that for Aboriginal people, this history "is burned into their consciousness".[43]

510. The significance of the work of the Royal Commission and the potential relevance of its findings to cases involving Aboriginal offenders who had experienced separation from their natural families has been well recognised[44], and the potential for there to be a connection between that experience and later offending behaviour should not be underestimated[45].

513. The report of the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, which was delivered by the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, in April 1997, investigated the separation of Aboriginal children from their families "by compulsion, duress or undue influence". The report therefore distinguished what it called "forcible removal" from removals "which were truly voluntary, at least on the part of parents who relinquished their children, or where the child was orphaned and there was no alternative indigenous carer to step in."[46] The report, however, made clear that the term of reference was treated as including not merely children who were "removed" from their parents but also those who experienced "separation from their families".[47] The authors of the report noted[48] the results of the National Aboriginal and Torres Strait Islander Survey of 1994, conducted by the Australian Bureau of Statistics[49], which reported that Aboriginal people surveyed who had been taken away from their natural families as children were twice as likely to have been arrested on more than one occasion than were Aboriginal people who did not have that background.

516. The circumstances of the offences against the two victims in the present case are set out in detail in the reasons of Batt, J.A. and demonstrate that both women endured a shocking and humiliating attack. In her Victim Impact Statement dated 27 March 2001 the first victim described suffering nightmares for months after the attack, and continuing to experience fear when away from her home, as well as anger, loss of self confidence and esteem. She can no longer enjoy life as she once did. She felt, "shamed, used, hurt". The victim of the second attack said in her statement, dated 27 March 2001, that she had attended a psychiatrist since the attack, was on medication for depression, and the attack had deeply affected her social life and her capacity to trust people. She saw no future for herself and had sold her house because she could not bear to remain in it after the assault.

519. Those reports emphasise the seriousness of the offences committed by the applicant. Both women had been attacked by someone they had liked and with whom they had a relationship, in one case the couple planning marriage. The attacks must have been all the more shocking and devastating for them because there had been no previous hint of such rage and violence in the conduct of the applicant towards them, and no indication that he would seek to hurt and humiliate them, as he did.

522. The circumstances of the offences in themselves would require severe punishment. But in this case there is the additional factor of the prior history of sexual offences committed by the applicant. The applicant is a "serious offender", as defined in Part 2A of the Sentencing Act 1991, and by s.6D(a) the Court in determining the length of sentence must regard the protection of the community from the offender as the principal purpose for the imposition of sentence. Section 6D(b) provides that in order to achieve that purpose the court may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

525. Furthermore, by virtue of s.6E every term of imprisonment imposed on a serious offender must, unless otherwise directed by the Court, be served cumulatively on any other sentence imposed. In this case the offences were extremely serious and it was entirely appropriate that significant periods of cumulation of sentences should be imposed, to provide for cumulation with respect to the attacks on the two offenders and also cumulation for the offences committed against each offender. The issue in the case was whether the cumulation led to an overall sentence which demonstrated error in the sentencing process.

528. Had full cumulation of all relevant sentences been imposed, a sentence of some 36 years would have resulted. The prosecutor conceded that such a sentence would have been, unquestionably, manifestly excessive. Thus, it was necessary for the learned sentencing judge to have directed that cumulation of the sentences imposed be modified so that complete cumulation not be ordered. The objective had to be that the final aggregate sentence imposed was one which did not constitute a "crushing" sentence, or one which, as a matter of law was manifestly excessive.

531. Appalling as the offences were, there were factors which militated against the imposition of a sentence as high as that imposed. In the first place, there were the pleas of guilty. The presentment to which the applicant pleaded guilty was not that which was originally filed, and it was only after matters of dispute were agreed between the prosecution and defence that the applicant pleaded guilty, and did so as soon as that situation was reached. His Honour concluded that the applicant "eventually pleaded guilty, albeit after a contested committal during which both victims were cross-examined". His Honour accepted that the plea of guilty saved the victims from giving evidence again and added that "in my view conviction was inevitable, and that reduces to some extent the weight to be given to your plea of guilty but it has some weight." In my opinion, full weight should be given to the pleas of guilty, and to the applicant's statements of remorse.

534. The applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who is likely, if free, to prey on members of the public at large. The absence of such an element in the offending is not a mitigatory factor, as such. Rather, the presence of a predatory feature would be an aggravating factor. But the absence of this factor is relevant to the question of rehabilitation. The applicant's attacks were upon persons with whom he had what he considered to be a relationship (using the term very broadly) and was triggered by factors deeply embedded in his past, coupled with a fear of rejection. An additional factor is that these offences occurred very soon after the death of his wife, itself a traumatic event for him. The recognition of those factors does not excuse the applicant's conduct, but is a necessary precondition if treatment and rehabilitation are to have prospects of success, as Dr Vine explained.

537. In turning to consider the appropriate orders which should be made in re-sentencing the applicant I have regard to the fact that no challenge has been made to the individual sentences imposed, rather than against the orders of cumulation. For that reason I would not vary the length of sentences imposed on each offence, which, in any event, appear to me to have been within the appropriate range of sentences which might have been imposed. I do, however, consider that the orders as to cumulation and concurrence require variation.

540. I have had the advantage of reading in draft the reasons of the other members of the court and I largely agree with the approach to re-sentencing adopted by Batt, J.A. and with his Honour's evaluation of the respective seriousness of the offences. It is apparent, however, that I am not in agreement with the other members of the court as to the appropriate orders as to cumulation and concurrence with respect to some of the sentences, which leads to the result that the effective head sentence and non-parole period which I would have imposed on re-sentencing would have been lower than those on which the other members of the court are agreed. In those circumstances it is not appropriate that I elaborate on my conclusions as to the appropriate periods of concurrence or cumulation for the individual counts. It is appropriate, however, that I make some further, but limited, observations.

543. I agree with Batt, J.A. that less concurrency was appropriate in the sentence on count 7 than in the case of count 2. I agree, too, that no order as to cumulation should be made with respect to count 4 (which as a matter of law would have been served concurrently unless otherwise ordered), but that a period of cumulation should be ordered with respect to count 6 (although I would have imposed a lesser period than proposed by Batt, J.A.). Further, in my opinion, to achieve an appropriate aggregate sentence - one which would not constitute the sentence to be manifestly excessive or to offend principles of totality (even when having regard to the terms of s.6D and 6E of the Sentencing Act) - would require the imposition of a greater period of concurrency on counts 2, 3, 6 and 8 than is proposed by their Honours.

547. I would grant leave to appeal against sentence and allow that appeal so as to set aside the orders as to cumulation and concurrency made below. For the reasons, stated, above, I do not agree with the orders proposed by the other members of the court in re-sentencing the applicant. I would myself have made orders as to cumulation and concurrency on individual counts which resulted in a total effective sentence and a non-parole period which were lower than those proposed by their Honours.

552. This has not been an easy appeal to deal with and I acknowledge with gratitude the statement of the facts and reasons of Batt, J.A. and the reasons of Eames, J.A. both of which I have read in draft.

555. I agree that grounds 6 and 7 of the amended grounds of appeal must succeed. I too am of the opinion that the circumstances of the offending against two females on separate occasions was most serious and required stern punishment, particularly on account of the applicant's previous convictions for rape and sexual offences in 1980 and 1992. That is not to say that he is to be punished again for past offences. For sentencing purposes, including the protection of the community, it cannot be overlooked that after the applicant was released on parole in May 1997 for 2 counts of aggravated rape, 1 count of rape, 1 count of causing injury intentionally or recklessly, 1 count of abduction for the purposes of sexual penetration and 2 counts of aggravated indecent assault he re-offended in a similar manner within 12 months of termination of his parole.

558. I appreciated the careful consideration given by Eames, J.A. to the applicant's Aboriginality and the dysfunction and disadvantages which resulted from separation from parents and later rejection by his mother, unsuccessful foster parenting during his formative years and sexual abuse at an early age. Nevertheless, the matters referable to family separation and unhappy childhood and all the other mitigation matters before the sentencing judge do not justify a lower individual sentence on any of the 9 counts than that imposed in the County Court, in my opinion.

561. In so far as the applicant's Aboriginality and problematic welfare history, coupled with abuse of alcohol, were relevant to his offending in 1980 and again in 1992, it was necessary in 2001 for the court to impose a very substantial period in custody for the protection of the community. I found nothing in the reports before the court which indicated with confidence that the applicant is unlikely to re-offend if circumstances repeat themselves in the future.

564. The main issue in the appeal is the cumulation required between the 3 counts involved in the first episode and the 6 counts involved in the second episode bearing in mind that the two episodes took place two months apart and concerned two victims. I note that the grounds of appeal do not attack any of the individual sentences imposed on counts 1 to 9. The cumulation proposed by Batt, J.A. has the effect of adding 4 years and 9 months of the effective sentence imposed on counts 1 to 3 to the effective sentence imposed on counts 4 to 9, namely 12 years and 6 months. In my view, the effect is to produce a total sentence that is fair and just in all the circumstances.

567. The gap produced by Batt, J.A.'s non-parole period of 14 years is appropriate, in my opinion. Any longer gap may prove difficult for the Parole Board to administer and difficult for the applicant to abide.

570. For these reasons I agree with the orders proposed by Batt, J.A.

[1] An evident slip for "or" occurring in the transcript of the sentence.

[2] The author of the letter referred to in paragraph [[].

3] This Court was told by counsel for the applicant that the substitute presentment to which the latter pleaded guilty was quite different from the original presentment and was largely consistent with what he had admitted in interviews. Accordingly, it should not be treated as a late plea: Cameron v. The Queen (2002) 76 A.L.J.R. 382, esp at paras [23]-[25].

[5] Section 16(A)(c) makes s.16(1), providing for concurrency unless otherwise directed, inapplicable to a sentence of imprisonment imposed on a serious offender for a relevant offence.

[7] His Honour's finding that the applicant did degrade and humiliate the two victims is not specific to the indecent assaults nor does it answer the adverbs of degree "seriously and substantially."

[8] On one reading of the transcript counsel seems to be agreeing with his Honour's view, but I do not think that is the correct reading. In any event, it was not suggested, and I would not hold, that the applicant was precluded from disputing the point of law here.

[9] [1998] 3 VR 340 at 347-348.

[10] [1998] 1 VR 664 at 680.

[12] [1997] 1 VR 246 at 253. The applicant in that case was not a serious sexual offender.

[13] (1982) 30 SASR 84 at 92-93. Care must be taken in relying on interstate cases as it seems that the mechanism of partially concurrent sentences is available, or at any rate availed of, only in Victoria: Fox and Freiberg, Sentencing - State and Federal Law in Victoria, 2nd edn, para 9.626. The ability to direct or order "otherwise" permits of partial concurrency.

[14] [1997] 1 VR 242 at 243.

[15] [1998] 4 VR 114 at 142.

[16] [1988] HCA 14; (1998) 164 CLR 465 at 477.

[17] [2000] VSCA 172; (2000) 2 VR 1.

[18] [1982] HCA 55; (1982) 149 CLR 305 at 326.

[19] (1989) 44 A.Crim.R. 301 at 307.

[20] (1994) 76 A.Crim.R. 58 esp. at 62-63.

[23] (1997) 1 V.R. 242 at 243-245.

[24] See Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295, at 340 per Kirby, J.

[25] The learned sentencing judge was author of the Victorian Sentencing Manual, a work of considerable benefit to sentencing judges. In the section on Aboriginal offenders some of the cases which I hereafter cite are referred to as to the question of racial equality in sentencing but no reference is made to the issues which I discuss herein as to the relevance to sentencing of the experience of early childhood separation of Aboriginal offenders from their natural parents.

[26] The breadth of usage of the term "stolen generation" was recognised by O'Loughlin, J. in Cubillo v The Commonwealth [2000] FCA 1084; (2000) 174 A.L.R. 97, at 114-115; see, too, the comments of the Full Court in Cubillo v The Commonwealth [2001] FCA 1213; (2001) 183 A.L.R 249, at 254 [15]. See, too, the later discussion in these reasons.

[27] [1982] HCA 55; (1982) 149 C.L.R. 305 at 326.

[28] (1989) 44 A.Crim.R. 301 at 307.

[29] (1991) 54 A.Crim.R. 347 at 349.

[30] (1994) 76 A.Crim.R. 302.

[31] (1994) 76 A.Crim.R. 302 at 305-306. See too R. v. Harradine (1992) 61 A.Crim.R. 201 at 205.

[32] R. v. Fernando (1992) 76 A.Crim.R. 58, at 62-63.

[33] The Hon. Justice Toohey "Sentencing Aboriginal Offenders", paper delivered to the Second International Law Congress, 19-24 June 1988, Surfers Paradise, Queensland. I am indebted to Ms Stephanie Fryer-Smith, the author of Aboriginal Bench Book for West Australian Courts (2002) for the reference to the paper by Toohey, J. and for other useful references on these topics.

[34] [1982] HCA 55; (1982) 149 C.L.R. 305 at 324.

[35] See Toohey, J. op cit, at p.4; see, too, R. v. E. (A Child) (1993) 66 A.Crim.R. 14.

[36] See for example the report by J.H. Wootton Q.C., (formerly Wootton, J. of the Supreme Court of New South Wales): "Report of the Inquiry into the Death of Malcolm Charles Smith", 11 April 1989, at p.4ff.

[37] In Cubillo, supra, at 115, O'Loughlin, J., when discussing the breadth of usage of the term "Stolen Generation", said that the mere fact that a child of part-Aboriginal ancestry was placed in an institution would not justify identification of that person as a member of the "Stolen Generation", it being necessary to go further and in each case to examine why the child was institutionalised, and whether it was necessary for that to have occurred in the interests of the child. His Honour's comments were made in the context of a claim of breach of duty of care by the State. The adverse impact of separation of Aboriginal children, for whatever reason, has been long recognised, the first academic writing on the topic being at least as early as 1951, by Professor R.M.Berndt (see P.Read, "Bibliographical Review of the Literature of the Stolen Generations", Vol 3, No.73, Aboriginal Law Bulletin (1995), at 22).

[38] The applicant's sister was a year younger than him, being born on 25 May 1964.

[39] [2000] VSCA 172; (2000) 2 V.R. 1 at paras.3-7, para.34

[40] See R. v. Telford, 4 June 1996, unreported (Phillips, C.J.. Southwell and Smith, A.JJ.A.) at p.18.

[41] Royal Commission into Aboriginal Deaths and Custody, National Report, Vol. 1 par. 1.2.17, p.5, April 1991.

[44] The report of the Royal Commission was described by criminologist Professor Richard Harding as being "a unique inquiry, unparalleled in any other part of the world" which he said "served to raise public consciousness as to distinctive areas of Aboriginal disadvantage and paved the way for such ground-breaking work as the enquiry into the removal of Aboriginal children from their natural parents", See "Prisons are the Problem: A Re-Examination of Aboriginal and Non-Aboriginal Deaths in Custody", R.W. Harding, Aust & N.Z. Journal of Criminology, Vol 32, No 2 (1999) 108, at 119.

[45] In the National Aboriginal and Torres Strait Islander Survey, conducted by the Australian Bureau of Statistics in response to a recommendation of the Royal Commission, more than 10% of Aboriginal persons aged 25 years and over reported being taken away from their natural family by a mission, the government or "welfare": see National Aboriginal and Torres Strait Islander Survey, 1994, Australian Bureau of Statistics, at page 2.

[46] "Bringing Them Home", Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Wilson, et al, Human Rights and Equal Opportunity Commission (1997), p.5.

[48] Bringing Them Home Report at p.15.

[49] National Aboriginal and Torres Strait Islander Survey 1994, at p.58, Detailed Findings, Australian Bureau of Statistics, 1995a, ABS Catalogue No. 4190.0, Canberra. (Where only a single arrest had occurred there was no significant reported difference by reference to childhood separation experience).