R v G J N [2005] VSCA 183

2 This is an appeal against a total effective sentence of eight years' imprisonment with a non-parole period of five years imposed on the appellant in respect of four counts of indecent act with a child under the age of 16 years and three representative counts of incest.

3 The appellant was born on 30 March 1968 and married the complainant's mother in 1993. She had been married before and had two children from her previous marriage: the complainant, who was eight years old at the time, and the complainant's younger sister. After marrying the appellant, the complainant's mother changed the complainant's surname to the appellant's surname and instructed the complainant to call the appellant "Dad".

4 On 5 December 2003 the appellant was committed before the Magistrates' Court at Geelong to stand trial on four counts of indecent act with the complainant and five counts of incest upon her. He reserved his plea. At a case conference on 24 May 2004 his representatives stated that he would plead guilty to a suitably drawn presentment and wished to negotiate the counts to which he would so plead. Following negotiation, on 10 September 2004 he stated through his representatives that he would plead guilty to a presentment containing four counts of indecent act with a child under 16 years (counts 1, 2, 3 and 4) and to three representative counts of incest (counts 5, 6 and 7).

5 On 15 September 2004 the appellant was arraigned on those charges before a judge of the County Court at Geelong and pleaded guilty to each count. After a plea in mitigation the judge sentenced the appellant to 9 months' imprisonment on count 1, 12 months' imprisonment on each of counts 2 and 3, 15 months' imprisonment on count 4, four years' imprisonment on count 5, seven years' imprisonment on count 6

and five-and-a-half years' imprisonment on count 7. His Honour further ordered that 12 months of the sentence imposed on count 7 be served cumulatively on the sentence imposed on count 6, thus making for the total effective sentence of eight years' imprisonment, and his Honour ordered that the appellant serve a minimum of five years before being eligible for parole.

6 The appellant contends that the judge fell into error in formulating the sentences imposed on the three representative counts of incest. He submits that the correct approach to sentencing on representative counts is as outlined by Batt, J.A. in R. v. SBL[1] and that the judge deviated from that approach by sentencing the appellant in effect on the totality of his offending as revealed in the depositions. In R. v. SBL, Batt, J.A. stated that:

"Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. ... "[2]

7 According to the appellant, the judge's error is evident in the fact that the judge did not refer specifically to the principles of sentencing applicable to representative counts, or refer with any particularity to the specific incidents of abuse which the appellant admitted, and in the fact that the judge described count 6 as a "representative count of repeated acts of sexual intercourse occurring over a quite lengthy period" and to counts 5 to 7 as being "representative of continuing incidents of sexual abuse". The appellant also relies upon the length of the sentences imposed on counts 6 and 7. He argues that it is inconceivable that the judge could have come to periods of imprisonment of that order without in effect sentencing the appellant on all of the " ... repeated acts of sexual intercourse occurring over a quite lengthy period" to which the judge referred.

8 I do not accept the argument. Granted that the judge did not refer specifically to the principles of sentencing applicable to representative counts, the principles are well known, and the judge was an experienced criminal trial judge who was doubtless familiar with the principles and with their application. It is true that his Honour did not refer to the particular acts and circumstances constituting counts 5, 6 and 7 and that he spoke of them as representative counts of incidents of digital and lingual penetration of the complainant and of repeated acts of sexual intercourse with the complainant. But the particular circumstances of each count were not in doubt and in point of fact it was not inaccurate to describe each count as representative of a multitude of incidents of digital and lingual penetration and sexual intercourse. The prosecutor opened his submissions on plea by handing up to the judge a Crown summary of the case conference and took the judge through the contents of that document. It described the particular circumstances of those counts with relative precision and in terms which tied each count to a particular occasion, as follows:

"Count 5 Incest

(Between 25/3/02 - 28/3/02)

On a school night just before Easter 2002 when the Complainant was 16 she was home ... watching television in the lounge room wearing her satin nightie and a dressing gown. She was sitting in the centre of the 3 seater recliner couch. The Accused was sitting on her right closest to the television with his legs up on his recliner and she had her legs out also on his recliner. He put his left arm around her shoulders, then took it away and introduced a finger in to her vagina and moved it around inside her. She lay back shocked with her eyes closed while this was going on. The Accused got up and went into her sister's room. She opened her eyes and realised she had no underwear on. She couldn't remember it coming off.

Count 6 Incest

(Between 1/10/2002 - 31/12/02)

Later that year during the warmer weather when she was wearing her summer school uniform, the Complainant came home from school and went to her room. The Accused came into her room, undressed her completely, put her on her bed, rubbed her vagina until it was wet, told her many times that he loved her and then introduced his penis into her vagina. He moved it backwards and forwards slowly then pulled it out without ejaculating and ran to the toilet. While he was gone she put on her track suit. He came back into her room. She told him she had things to do and he left.

Count 7

(Between 1/10/2002 - 31/12/02)

Subsequent to the incident referred to in Count 6 the Complainant was up late in her bedroom doing her homework when the Accused came in and started kissing her on the mouth. He touched her breasts, rubbed her vagina over her underwear, removed her underwear and penetrated her vagina with his finger, moving it in and out. He then sat her on the bed, opened her legs and began kissing and licking her vagina. He penetrated her vagina with his tongue, then stopped and left the room."

I see no reason to think that the judge would have treated counts 5, 6 or 7 as being other than as described in the summary.

9 Arguably, the sentences imposed on counts 5, 6 and 7 were stern sentences. But, if so, it was not because of any attempt on the part of the judge somehow to reflect all of the wrongdoing referred to in the depositions. It was because of the serious nature of the conduct constituting the individual offences. As the judge put it:

" ... the conduct involved in the representative Counts 5, 6 & 7 is particularly reprehensible and of course aggravated by your parental relationship to the child.

The sentence I deem must indicate the community's denunciation of this conduct.

The issue of child abuse is a matter of great concern in this community."

10 In my opinion, the judge was right. The maximum sentence applicable to the offences alleged in counts 5, 6 and 7 was twenty-five years' imprisonment. They were serious offences. It is readily conceivable that sentences of between four and five-and-a-half years might have been imposed even if the counts were not representative counts.

Ground 2 - Insufficient discount for co-operation and plea of guilty.

11 The appellant makes a further point that, but for his plea of guilty, counts 5, 6 and 7 could not have been treated as representative counts and therefore that the judge could not have had regard to uncharged acts when formulating the sentence to be imposed on counts 5, 6 and 7. According to the appellant, that entitled him to a special discount on sentence or at least to a greater discount than the judge allowed.

12 I do not think that there is anything in that point either. The applicant's plea of guilty to counts 5, 6 and 7 as representative counts gave him advantages which he would not have had if he had pleaded not guilty and been convicted at trial. He was spared the risk of trial on at least two further counts of incest and at the same time he had the assurance that the sentence imposed on the representative counts would be proportionate and in effect that there could not be cumulation pursuant to the requirement relating to serious sexual offenders. As Ormiston, J.A. explained in SBL, where an accused pleads guilty to a representative count:

" ... The accused may fairly expect that the matter will be brought to a conclusion by the acceptance of the pleas at the end of the sentencing process. That is a benefit not only to the accused but also to the victims who otherwise would face the real risk of having to give evidence at some later trial if some such practice were not adopted. I should add that, notwithstanding various comments in the authorities discussed above to the effect that there is no bar on the bringing of a further prosecution for charges which are not the subject of specific counts, I am firmly of the view that any such attempt would be stayed as an abuse of process. The accused is also advantaged in that, howsoever seriously each count may be viewed by reference to the facts making up a representative count, any sentence imposed must still be proportionate and there can in effect be no cumulation, notwithstanding the requirements relating to serious sexual offences. Moreover, having regard to the principles which were examined in R. v. Lomax [1998] 1 V.R. 551 and Director of Public Prosecutions v. Grabovac [1998] 1 V.R. 664, the requirements of totality would ordinarily call for much concurrency especially in relation to charges of this nature."[3]

Grounds 3 and 4 - Plea of guilty and remorse.

13 The appellant further contends that, apart from any special discount for pleading guilty to representative counts, the judge failed to give sufficient weight to the appellant's early plea of guilty and to his remorse and lack of prior convictions.

14 I do not agree. It is trite that the judge was bound to take into account the appellant's plea of guilty, and other things being equal to allow an appropriate discount on sentence, and to take into account the appellant's genuine remorse and to mitigate penalty accordingly. There is, however, no reason to doubt that the judge did just that. As his Honour put it:

" ... I accept that an attitude of contrition has been maintained through the currency of these proceedings and your counsel's submission that you are entitled to a discount for an early plea of guilty is well founded. You have saved the community the expense and inconvenience of a trial and have spared the victim the unpleasant experience of giving evidence about these matters.

I accept that you are genuinely remorseful for your conduct. All of the material that I have had placed before me confirms this ... "

15 The appellant submits to the contrary that it is manifest that the judge did not allow an appropriate discount. As he would have it, it is hard to imagine that he would have received a higher penalty if he had pleaded not guilty and been convicted at trial. But I do not think that is so. As the judge observed, there were a number of aggravating features associated with the appellant's offending. Each of the offences involved a significant breach of trust in what was in effect a father and daughter relationship. The offending conduct occurred over an extended period of time, at first when the victim was only 10 or 11 years old, and later, after a respite, when she had turned 16 years of age. Not surprisingly it had substantial adverse psychological and emotional effects on the complainant. According to her victim impact statement, which was not contested, her performance at school was retarded and interrupted, her relationship with her mother and remaining family and friends was strained and she suffered from significant depression and her sense of self-esteem and attitude towards life were seriously disaffected. At the risk of repetition, the offences the subject of counts 5, 6 and 7 were serious offences warranting serious punishment and, were it not for the appellant's plea of guilty and genuine remorse, he could have expected to receive a sentence, in my opinion, considerably greater than that which was imposed.

16 The appellant next submits that the judge should not have ordered any cumulation of the sentences imposed on counts 6 and 7; for in the appellant's submission counts 5, 6 and 7 simply reflected different ways in which the same offence was committed. He accepts that some cumulation might have been warranted if the offences had related to different episodes. But he argues that it was not warranted here because the different counts merely reflected different types of the one offending in what was in effect one single incident.

17 I reject the argument. Counts 5, 6 and 7 related to separate and distinct offences committed at different times. They cannot be sloughed off as mere different types of the one offending. They were repeated offences and the fact of the repetition was a significant aggravating factor. I do not doubt that some degree of cumulation was warranted, and in my opinion the degree of cumulation ordered by the judge was anything but excessive. It seems to me that it accurately reflects the distinct character of each of the offences and results in a total effective sentence which is no more than is warranted by the total criminality the subject of the three counts.

18 Finally, the appellant argues that in the circumstances of his plea of guilty, his co-operation with the authorities, his genuine and concretely expressed remorse and his lack of prior convictions, the sentence which was imposed presents as manifestly excessive. I do not agree. For the reasons already given, I consider that the sentence was within the range.

22 The order of the Court is that this appeal is dismissed.

[1] [1998] VSCA 144; [1999] 1 V.R. 706.

[2] [1998] VSCA 144; [1999] 1 V.R. 706 at 725 [70], see also Ormiston J.A. ibid at 724 [64]-[66]; cf. R. v. JCW [2000] NSWCCA 209; (2000) 112 A.Crim.R. 466 at 476 [57]- [68], per Spiegelman, C.J.

[3] ibid. at 724 [64].