R v G D R [1999] VSCA 9

5. The applicant admitted seven prior convictions incurred between 1961 and 1972. These included offences of dishonesty and liquor-related offences. None involved sexual misconduct.

8. After hearing a plea for leniency, in the course of which she received from a psychologist and some doctors reports touching the applicant, the learned judge on 18 September last sentenced him as follows:

counts 2, 3, 4, 5 and 9 - 18 months' imprisonment on each count;

counts 7 and 8 - three years' imprisonment on each count.

"counts 2 to 5 to be served cumulatively on count 1 but concurrently with each other. I further order count 6 to be served cumulatively on counts 1 to 5. I further order that counts 7 and 8 be served cumulatively on count 6 but concurrently with each other. I further order count 9 be served cumulatively on the previous counts".

This resulted, so the learned judge said, in a total period of imprisonment of nine years, and she fixed a non-parole period of five-and-a-half years.

18. The applicant later lodged notice of application for leave to appeal against sentence, pleading the sole ground that the sentence was manifestly excessive in all the circumstances.

21. I now turn to a summary of the facts in these matters. The offences all involved as victim a daughter of the applicant and were committed on her between the ages of six and eleven. She had been born in June 1980. Count 1 involved the applicant, who was naked, taking the victim to his bedroom and getting her to lie down on the bed. He lifted up her nightie and rubbed his penis about her buttocks and ejaculated. He told her not to tell her mother or brother and that the conduct was "our little secret".

24. Count 2 occurred on a day when the applicant had decided not to go to work and the complainant had asked him if she could take the day off school. He said to her words to the effect, "You know what you'll have to do to get the day off". The victim lay on the applicant's bed and he placed his penis between her buttocks and moved until he ejaculated. She asked him for money and he gave her four dollars, with which she bought some lollies. This was the first occasion this sort of thing occurred, but thereafter the applicant gave her money and gifts in return for sexual conduct.

27. Count 3 occurred in the applicant's bed. He was naked. He ordered the victim to take off her underpants and variously lay on top of her with his penis between her legs or placed her astride him. He attempted to put his penis into her vagina. She protested at the pain caused and he then stopped.

30. Counts 4 and 5 also occurred in the applicant's bed and involved him licking the victim's vagina and placing his penis between her legs and moving until ejaculation.

33. Count 6 involved the applicant taking the day off work and the victim requesting a day off school on the understanding she would have to perform sexual conduct. The applicant made her stand on a stack of telephone books in the bathroom. He stood behind her and moved his erect penis between her legs until ejaculation.

36. Count 7 occurred in the applicant's bedroom late at night and involved the victim sucking his penis until ejaculation. Similar conduct was the basis of count 8 when both parties had taken a day off school and work respectively. Count 9 was a repetition of the conduct involved in count 6, and on this occasion the victim had asked for a new kitten, which the applicant later bought for her.

39. Perusal of the transcript of the plea does not enable one to conclude whether any of the counts were treated as representative. Before this Court, both counsel agreed that they should not be so treated.

42. It is necessary also to set out a history of complaint - and, indeed, lack of complaint - by the victim. It appears she first reported the applicant's conduct to a counsellor at her school when she was in Grade 7. She declined then to make a statement, but it was her belief that the counsellor to whom she complained later spoke to her father. In any event, on 19 February 1997 the victim made a report to the police, but on 25 February she made a statement of "no complaint" to the police. On 23 July the applicant went voluntarily to the Frankston police after contacting them several days earlier. At that contact it had been agreed that he would later attend at the police station. Upon interview, after having been cautioned, he volunteered that he had been sexually abusing the victim over five or six years and gave some detail of this. The following day, the victim made a signed statement of complaint to the police, stating she was sick of blackmailing the applicant, from whom she had received, in addition to the cat, a horse, a queen-size bed and some $6,000-worth of goods from Myer's. This statement related to some counts and she later provided statements as to others.

45. When the applicant was first interviewed by the police he admitted counts 1, 2, 8 and 9. On further questioning in September, he made admissions as to those counts and admitted counts 6 and 7. Counts 3, 4 and 5, which had then been disclosed by the victim, were put to him in May 1998 but he declined to comment thereon. Subsequently the victim wrote to a police officer seeking to withdraw her complaint.

48. Mr Perry of counsel, who appeared before this Court for the applicant, indicated, as I understood him, that the applicant's motivation in going to the police involved both the blackmail and its effects and a genuine desire to make amends.

51. When this application was called on, Mr Gyorffy, for the Crown, conceded that the cumulation directions in the court below evidenced error, resulting as they did in a total effective sentence three times the maximum imposed for the most serious offence of the applicant. He also allowed that this circumstance would infect the head sentence and consequently throw into doubt the relationship between that sentence and the non-parole period fixed in the court below. The Court thereupon invited Mr Perry to make a plea, on the basis that it fell to us to re-sentence the applicant. Mr Perry, if I may say so, performed this task with economy, and it is fair to say that none of his points were gainsaid by counsel for the Crown.

54. Mr Perry submitted there was no evidence of violence on the part of the applicant in the offences, but he conceded that their time span was an aggravating circumstance. He pointed out that the last offence charged had probably occurred in 1991, and that there had been a voluntary cessation of offending by the applicant, as well as his voluntary contact with the police. Mr Perry then set out a number of findings of the learned judge in the court below and commended them to this Court as being plainly open on the evidence. The most significant of these are as follows: that the applicant's prior convictions are not relevant to sentencing; that the applicant comes to be sentenced as a man with a long and good employment record and with a solid family background and education; that a psychiatric report, and indeed the whole of the circumstances, made it unlikely that the applicant would re-offend; that the evidence showed that the applicant had truly accepted responsibility for his behaviour, being described by the doctor as both remorseful and guilt-ridden; that there had apparently been a reconciliation between the applicant and the victim.

57. For my part, I would subscribe to all of those findings.

60. On the other hand, Mr Perry conceded that the applicant must be visited with a sentence of imprisonment and that some cumulation in structuring that sentence was appropriate. In my opinion this is an eminently sensible concession, reflecting, as it did, the seriousness of the applicant's conduct and the effects on his daughter, which obliged her to undertake counselling and which caused her to exhibit difficult and anti-social behaviour. This concession also reflects the maximum penalties fixed by Parliament for these offences.

63. That having been said, I have reached the clear view in this matter that the applicant, having offended as he did, voluntarily desisted and did much, in a spirit of true remorse, to make amends for his unlawful conduct. That exercise, at his age and in his position in the community, cost him dearly in some respects other than his imprisonment.

66. Having regard to all the circumstances, I see no reason to impose individual sentences different to those imposed in the court below. Should the other members of the Court agree, I would further propose that six months of the sentence on count 2 and six months of the sentence on count 9 be served cumulatively upon each other and cumulatively upon the sentence imposed on count 7, making for a total effective sentence of four years. I would further propose a non-parole period of two years.

The application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed. Upon re-sentencing, the applicant is sentenced as follows:

counts 2, 3, 4, 5 and 9 - 18 months' imprisonment on each count;

counts 7 and 8 - 3 years' imprisonment on each count.

The Court directs that six months of the sentence imposed on count 2 and six months of the sentence imposed on count 9 are to be served cumulatively upon each other and cumulatively upon the sentence imposed on count 7, making for a total effective sentence of four years. The Court fixes a non-parole period of two years.

The Court declares that the period of 144 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.