R v G L H [2008] VSCA 88

2 I agree with Lasry AJA, for the reasons which his Honour gives, that the application for leave to appeal should be granted, that the appeal should be allowed, and that the appellant should be re-sentenced as his Honour proposes.

**3 This is an application for leave to appeal against sentence by GLH ('the applicant'). The applicant was presented at the County Court at Morwell on 22 January 2007 and pleaded guilty to six counts of committing an indecent act with a child and one count of incest.[1] Those counts were based on events which occurred between May 2004 and December 2005.

4 After hearing a plea in mitigation on behalf of the applicant the sentencing judge imposed the following sentences:**

three years' imprisonment (one year of which was to be imposed cumulatively on all other sentences imposed)

one year imprisonment (wholly cumulative on the sentences imposed)

six months' imprisonment (wholly cumulative on the sentences imposed)

six months' imprisonment (wholly cumulative on the sentences imposed)

six months' imprisonment (wholly cumulative on the sentences imposed)

six months' imprisonment (wholly cumulative on the sentences imposed)

**5 The total effective sentence thus imposed was seven years' imprisonment. A period of four years' imprisonment was fixed before the applicant would become eligible for release on parole. A period of seven days pre-sentence detention was declared.

6 In relation to Counts 4, 5, 6 and 7, the applicant was sentenced as a serious sexual offender pursuant to the Sentencing Act 1991 (Vic).

7 The applicant relies on five grounds in support of his application for leave to appeal against the sentence imposed on him:**

The learned sentencing Judge erred in his approach to passing sentence on the representative counts (Counts 1 and 2).

The learned sentencing Judge erred in his application of the totality principle as demonstrated by the sentences imposed on all counts and the orders made for cumulation in respect of Counts 3-7.

(a) failing to state whether he had imposed a disproportionate sentence pursuant to s.6D of the Sentencing Act 1991; or,

(b) imposing a disproportionate sentence in circumstances where it was not warranted.

The learned sentencing Judge erred in giving insufficient weight to the Applicant's remorse.

**8 At the time of these offences the applicant resided in a caravan park in Traralgon. The victims were his grandchildren and at the time that the offending commenced, the children were aged 11 years, 10 years and 7 years.

9 The evidence in support of Count 1, which was a representative count, indicated that on approximately 25 May 2004 the eldest child, R, was in the lounge of her family home watching television with her sisters. After the sisters left the room the applicant began to tickle her and then touched her vagina over her clothing. Later on the same day a similar incident occurred whilst the child was in her bedroom dressing and a few days later a further incident occurred of a similar nature, also in the lounge of the premises. The evidence disclosed further incidents of touching of the victim's vagina over her clothing or underwear in 2004 and in 2005.

10 The representative Count 2 concerned conduct between 1 September 2005 and 31 October 2005 involving S, who was then aged 12. This also involved touching the victim's vagina over her clothing and the evidence indicated that this occurred on five occasions during that period.

11 Count 3 concerns a discrete incident on 1 December 2005. The applicant and his grand daughters were sitting watching television and when two of them left the room temporarily, the applicant placed his hand down the side of the shirt of S and, with some force, rubbed her breast. She told him to stop and pinched him in an effort to stop him touching her and shortly afterwards left the room.

12 Count 4 concerns an incident which occurred on 27 December 2005 and occurred while the victims were alone in the company of the applicant. He had previously cared for his grandchildren while their parents were at work. This incident concerned S who was at the time wearing pyjamas and was in the lounge watching a movie on television. The evidence indicated that the applicant told her to open her legs and when she refused he placed his hands on her knees and tried to force them apart. S pinched the applicant in an effort to prevent him from doing what he was doing but he nonetheless pulled down her shorts and pulled her legs apart, placing his hands inside her underwear. He touched her vagina for some time before placing his finger inside the outer part of her vagina. She closed her legs and rolled off the couch and went to her bedroom with the applicant saying, 'Come on let me feel you'.

13 Count 5 concerns an incident on 27 December 2005 with the child J, who was 8 years old at the time, where the applicant rubbed her leg before rubbing her vagina over her clothing with some force.

14 Count 6 also involved J and happened immediately after the incident described in Count 5 while a movie was being watched in the lounge. The act comprising Count 6 involved the applicant touching J's buttocks.

15 Count 7 immediately followed the incident referred to in Count 6 and involved the applicant touching J's breasts whilst she sat on his lap.

16 The offences were disclosed by S and J them day that the offences in Counts 5, 6 and 7 were committed and a report was made to police. On 12 January 2006 police attended at the home of the applicant and he was taken to the Morwell Police Station where a record of interview was conducted. In answer to the questions he was asked over a lengthy period by the police, the applicant denied any involvement in these offences.**

17 It is only necessary to deal with two of the errors raised by the applicant's grounds of appeal - those identified in grounds 1 and 3. Counsel who appeared on behalf of the Director of Public Prosecutions, conceded that both errors had been made by the sentencing judge and they vitiated the sentence imposed. He did not contend that a disproportionate sentence had been appropriate and he accepted that the result must be that the applicant falls to be re-sentenced by this Court. In our opinion the concessions made by the Director were appropriate and proper.

**18 The sentencing judge imposed sentences of three years' imprisonment on each of Counts 1 and 2, they being the representative counts. It is relevant to compare the sentences on those counts with the sentence of 6 months' imprisonment on Count 4 - the count of incest. In my opinion, Count 4 was the most serious offence on this presentment. In the absence of stated reasons by his Honour, the only plausible explanation for the disparity between those sentences is that the applicant was being additionally punished for conduct other than that for which he was entitled to be sentenced on the two representative counts on the presentment.

19 The purpose of representative counts and the way they should be treated in sentencing is explained in the judgment of this Court in R v SBL,[2] where Batt JA said:**

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 a wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone.[3]

20 In this case, during the plea before the sentencing judge, the prosecutor identified an incident occurring on 25 May 2004 as the incident for which the applicant was to be sentenced on Count 1 and noted that:

The other incidents are representative of the ongoing conduct that has occurred between those dates.

**21 Likewise, in relation to Count 2, the prosecutor opened the matter to his Honour in relation to a specific incident which she identified as occurring between 1 December 2005 and 31 October 2005.

22 The applicant submits, correctly, that his Honour failed to explain the basis for imposing the sentence on each representative count. There was no reference to authority during the submissions on the plea and the sentencing judge does not refer to legal principle in imposing the sentence. I am satisfied that these circumstances clearly demonstrate error and the application for leave should be granted and the appeal allowed on this ground alone. It is appropriate, however, to also deal briefly with ground 3 and I turn to that ground.**

**23 Apart from the submissions of the applicant in support of this ground, counsel for the Director accepts that there are only two possible explanations for the imposition of the sentences leading, as they do, to a total effective sentence of seven years' imprisonment with a minimum term of four years before eligibility for parole. First, that the sentencing judge did intend to impose a disproportionate sentence under s 6D(b) of the Sentencing Act 1991 (Vic) and that he was in error in not expressing the reasons for doing so, including by reference to an assessment of whether the applicant would remain a danger to the community beyond the term of a proportionate sentence.

24 Alternatively, when making orders for total cumulation either pursuant to s 6E of the Sentencing Act 1991 (Vic) or otherwise, in the absence of any reference to principles of totality or proportionality, the Crown concedes his Honour was likewise in error.

25 As to the first of those possibilities, in R v Prowse,[4] Buchanan JA observed that the discretion to impose a disproportionate sentence will be rarely exercised. In that case his Honour noted that**

... if his Honour did impose a disproportionate sentence or intended to, he failed to make any assessment as to whether the appellant would remain a danger to the community beyond the term of a proportionate sentence. I am not confident that such a finding was necessarily implicit in the sentencing remarks. In any event, the finding that the appellant would represent a danger to the community at the end of a proportionate sentence, a finding that was required to be made according to the standard of proof beyond reasonable doubt, should have been made expressly.[5]

**26 Likewise, in this case there is an absence of reasoning which explains what is clearly a disproportionate sentence and similarly the sentencing judge makes no reference to any finding that this application would remain a danger to the community beyond the term of a proportionate sentence. In my opinion, as appears below, the evidence before the sentencing judge indicates the contrary.

27 The concession of error by the Crown in relation to this ground was appropriate and it therefore follows that the application for leave should be granted and the appeal allowed. It would then follow that the applicant would fall to be re-sentenced.**

**28 It is important to note that the Victim Impact Statements from each of the victims in this case identify the sad and serious effect of offending of this type. Each of the statements by the three victims refer to the loss of trust which resulted from the applicant's conduct. They each predict that the loss of trust will be a lasting effect of the offending by the applicant.

29 So far as the applicant's circumstances are concerned, apart from the submissions of counsel, the evidentiary material before the sentencing judge included a detailed and carefully presented report from clinical psychologist, Mr Patrick Newton. That report revealed that between 24 May 2006 and 18 January 2007, the applicant had attended eight counselling and assessment sessions with Mr Newton. The overall impression created by that report is that the applicant has insight into the wrongfulness of his offending, accepts the need for appropriate and effective psychological treatment, and displays genuine remorse.

30 In his summary of opinion, Mr Newton described the applicant as profoundly and dysfunctionally introverted. Mr Newton said:**

He is intensely socially withdrawn and has little interest in interpersonal contact with others. Reinforcing this, his social skills are extremely poor and his capacity to interpret interpersonal nuance is deficient. These traits are entrenched parts of his personality and are sufficiently severe to warrant the diagnosis of a Schizoid Personality Disorder.

**31 Mr Newton qualified that diagnosis and explained that it did not mean that the applicant suffers from, or has suffered from, a psychotic disorder. The diagnosed disorder does not correlate with a diagnosis of schizophrenia or psychotic disorders.

32 Mr Newton diagnosed the applicant's sexual activity with his three granddaughters as being of sufficient severity and duration to warrant the formal diagnosis of 'Paedophilia, Non-Exclusive Type, Sexually Attracted to Females'.

33 Mr Newton expressed the view that the applicant's risk of recidivism fell into the 'moderate-low' risk category. He said that with further treatment the risk of recidivism could be further reduced. He described the applicant as a 'diligent participant in his counselling'. It is, however, clear from his report that further counselling and treatment will be required by the applicant.

34 The applicant is now 56 years of age and the product of an unhappy and isolated background. His education was slow and difficult and it concluded at the end of Year 8. Commencing at the age of 17 years he spent 12 years in the army and achieved the rank of corporal.

35 In 1970 the applicant married and the marriage produced three children. The marriage ended in divorce in 1982. During the 1980s the applicant had been living in Adelaide but came to Victoria in 1988 with his ex-wife's encouragement and worked in various jobs including in the timber industry.

36 The applicant has no prior convictions for any offences.

37 In addition to his psychological difficulties, the evidence before the sentencing judge indicated that the applicant suffered from a heart condition and had a serious heart attack in 1997.

38 So far as the offending is concerned, there were several mitigating factors on which counsel for the applicant relied during the plea in the County Court and which counsel before us also referred to. It is the case that the offending, whilst serious, was opportunistic and was not accompanied by violence or the threat of violence or any other inducements offered to the victims to co-operate. Apart from the two representative counts, the rest of the incidents are specific and confined, particularly in relation to the child J, with all of the incidents occurring on the one day.

39 Although the applicant made denials in his record of interview, he has apparently always instructed his counsel that he wished to plead guilty and it was submitted that his plea was entered at the first appropriate opportunity. The applicant's instructions were to resolve the matter as a plea and the discussions concerning how that might be done took some time. Mr Newton refers to the applicant's persistent expression of his remorse in his report although the sentencing judge made no reference to that issue in his reasons for sentence.

40 Before us, counsel for the applicant accepted that the sentence on Count 4, which was the most serious, needed to be increased. Nonetheless he submitted that the incident, whilst serious, was a single incident and was not a representative count and he pointed to the lack of prior or subsequent offending on the part of the applicant.

41 Counsel submitted before us that the applicant had done all that he was required to do to participate in the sexual offender's programme but that could not occur until the result of this application was known. Material was provided to us which indicated that he had enrolled in courses whilst in custody and was working seven days a week in order to keep occupied.

42 In his submissions, counsel for the Director agreed that Count 4 was the most serious and accepted that the prospects of rehabilitation were 'reasonable'. He did not contend that a disproportionate sentence was required under the serious sexual offender provisions and he also agreed with the submission of counsel for the applicant that a longer period of parole might be appropriate in order to ensure the applicant's supervision. I would give effect to those submissions.

43 In all the circumstances, I would re-sentence the applicant as follows:**

**44 On Counts 3 to 7, the applicant would fall to be sentenced as a serious sexual offender pursuant to ss 6B and 6C of the Sentencing Act 1991 (Vic). Taking the sentence on count 4 as the base sentence, I would order that four months of the sentence on count 1 and four months of the sentence on count 2 be cumulated on each other and on the sentence on count 4. I would further order that two months of the sentence on count 3 be served concurrently with the sentence on count 4, that the sentences on counts 5, 6, and 7 be served concurrently with each other, and that three months of the six months of those concurrent sentences be served concurrently with the sentence on count 4.

45 That would result in a total effective of sentence of four years' imprisonment. I would fix a minimum term of two years' imprisonment before the applicant becomes eligible for release on parole. The Court will make a proper declaration regarding pre-sentence detention.

[1] The maximum penalty for committing an indecent act with a child under 16 years is 10 years' imprisonment - Crimes Act (1958) s 47; the maximum penalty for the offence of incest is 25 years' imprisonment- Crimes Act (1958) s 44.

[2] [1998] VSCA 144; [1999] 1 VR 706.

[4] [2005] VSCA 287.