R v G M T [2006] VSCA 13

1. The judge imposed a sentence that was manifestly excessive in all the circumstances, particularly having regard to the plea of guilty, the delay, the appellant's rehabilitation in the period since he ceased offending, his remorse, his otherwise good character, the nature of the sexual interference and the, at least partial, forgiveness of the victim.

2. The judge erred in taking into account for the purposes of sentence conduct which occurred outside the period covered by the presentment.

3. The judge erred in failing to give any consideration to the views expressed by the victim as to sentence.

4. The judge erred in finding that offending such as the appellant's was prevalent.

5. The judge erred in his assessment of the likelihood of the appellant re-offending.

3 The circumstances giving rise to the offence alleged were as follows. The appellant formed a de facto relationship with P in 1980 and they lived together in P's house for some 17 years thereafter. He moved out of P's house in 1998, yet continued thereafter frequently to visit her house. The relationship produced two children, the first being born in November 1983 and the second, the victim in this matter, a daughter, D, born on 16 November 1986.

4 The appellant began a sexual relationship with D in around 1989, when she was three years old and attending an Early Learning Centre, and it lasted until she was aged ten or eleven. The sexual relationship was more frequently acted upon when D was younger and involved various sexual acts, which occurred mostly in the lounge room and the parents' bedroom at the family home. The sexual acts involved occurred sometimes several times per week and at other times just once a month, for some seven to eight years. The acts occurred usually in the afternoon or at night, rather than in the morning, and occasionally in the middle of the day, for as long as D could recall. He would make his daughter look through pornographic magazines and videotapes while he watched her. The magazines mostly featured naked women, although there were others which featured males and females engaged in sexual acts. The videos usually featured female to female sexual acts. He would make D pick out scenes she liked and would then get her to undress and mimic the acts and poses that were depicted in the magazines and videos. The appellant would then make D perform oral sex upon him or fondle his penis, and he would perform oral sex on D and touch her vagina and her breasts. On occasions, the appellant would make D, while wearing a dress, take off her underwear and squat upon his face. On other occasions she would be required to pose fully naked, lying on her back with her legs spread wide open. D stated that she usually wore some form of clothing but no underwear during the sessions, the reason for this being that it would be easier for her to cover herself up if someone came home or to the front door. The appellant would make D masturbate herself while he watched, and on occasions would masturbate himself. D was made to masturbate herself and pretend to reach orgasm by making moaning or groaning noises. The appellant would become angry if D did not look as though she were enjoying herself. He would plan the amount of time he and D would have undisturbed without interruptions, allowing the performance of the sexual acts and the time in which to watch videos and perform poses, or, as D described in her statement, "just go straight to it". On these latter occasions, D and the appellant would perform oral sex upon each other, and on nearly every occasion D would have to masturbate herself in front of the appellant, faking an orgasm and performing poses. The appellant told D that what they were doing was wrong and that he would go to gaol for it.

5 In 1997 the appellant and P separated and he moved into a spare room of the family home. D was then between nine and ten years old. The appellant moved out shortly afterwards, but, although living elsewhere, continued to come to the family home on an almost daily basis, eating most meals and spending most of his time at the house. Although the physical sexual relationship with D had ceased by this time, the appellant continued to bring bras and lingerie to the house and have his daughter model them in front of him. This activity continued for a month or so and then stopped and the appellant has not abused D since that time.

6 On 6 February 2003 P was told by her daughter that the appellant had sexually abused her and she then confronted him with these allegations. He admitted to having had oral sex with D during her childhood, but stated that such sexual abuse ceased after he left the family home. The appellant was interviewed by police on 2 May 2003 but made a "no comment" record of interview.

7 The victim impact statement made by D makes very clear, in a most understated manner, the impact that the appellant's prolonged abuse of her has had on his daughter's life, her general wellbeing and her ability to form relationships. She remains, as one would expect, a deeply troubled young woman.

8 During the plea, extensive reliance was placed by the appellant's counsel on two reports by Mr Byron Rigby, a consultant physician in psychiatry, two reports by Mr Ronnie Jontof-Hutter, a clinical psychologist, and one from Mr Hitomi Akamatsu, a psychotherapist. Mr Rigby's opinion of 17 May 2005 includes the following passages:

"From [the appellant's] description, it is evident that there existed an enduring pattern of interest in pornography for a prolonged period up to and including the time of the offences. Judging from the stated duration of sexual abuse of his daughter, it is apparent that abnormal preoccupation with sex continued and was entrenched. As he was engaged in seeking assistance from [Sex Addicts Anonymous] and discontinued it before more recently recommencing, it is likely that this pattern has been resistant. Temporary patterns of behaviour that nevertheless continue for a considerable duration constitute a substantial proportion of [the appellant's] psychiatric abnormality. They reflect enduring character traits mentioned in the next paragraph."

Mr Rigby then discussed the appellant's enduring character traits, stating that they were a result of long-term distortions of development since childhood. He said of the appellant that they included an insensitivity to, or disassociation from, the impact of this behaviour on others; secretiveness; obsessiveness; a tendency to control; denial or splitting off of awareness of the nature of his acts; and the lack of real emotional bonds with others. He said that there was difficulty in penetrating the appellant's denial and intellectual positions, and that "this unreachable quality is an obstacle to his recovery that he is gradually mastering". Mr Rigby thought that the appellant remained amenable to treatment and rehabilitation, but that "his progress is likely to be slow, however". Mr Rigby's view was that the appellant "must adopt a policy of avoiding circumstances that could conceivably be perceived to involve risk of re-offending". In considering the appellant's prospects of re-offending, Mr Rigby said:

"The prognosis of individuals who have persistently committed apparently conscienceless acts of sexual abuse, especially to their own children, is notoriously difficult. Re-offending in perpetrators of child sexual abuses is common."

Mr Rigby said of the appellant that he had a good chance of avoiding further offences and that "it is likely that he would not re-offend. He will require assistance by individuals who are willing to confront him vigorously".

9 The sentencing judge dealt in considerable detail with the reports of both Mr Rigby and Mr Jontof-Hutter, concluding that:

"Whilst this court would hope that you will not re-offend in like manner, it has significant unease in that regard. This unease is based on the findings made by both Dr Rigby and Dr Jontof-Hutter in their quite recent examinations of you. It would seem that you are still, to some degree, in some denial as to the precise nature and extent of your offending with your daughter and the enormity of your offending."

After quoting extensively from Mr Rigby's report, the judge added that the aspect of public protection must be an important sentencing consideration for the court, and that he could not say with any degree of confidence that the appellant would be unlikely to commit further sexual offences against children.

10 Under ground 2 it was argued that the presentment was settled after discussions between prosecution and defence at committal. The count alleged maintaining a sexual relationship with a child under the offender's care and supervision between 5 August 1991 and 30 April 1998, which the prosecutor informed the judge resulted from the offence coming into being in August 1991. The complainant was born on 16 November 1986. It was argued that the judge was not entitled to take into account matters occurring before August 1991 and that the judge had wrongly done so. Reference was made to three paragraphs of his Honour's sentencing reasons in which his Honour made reference to the fact that the appellant had commenced an abusive sexual relationship with his daughter when she was three, and that the abusive conduct spanned a period of "some eight years". It was argued that these references were not merely narrative, and that in making them the judge erred in principle by taking into account matters not within the ambit of the offence with which the appellant was charged. Accordingly, the basic submission was that it was not open to the judge to take into account events alleged to have occurred before 5 August 1991.

11 When the prosecutor opened to the judge the circumstances of the offending, reference was made to D's statement, which included reference to the relationship having commenced when she was "about three years old" in 1989 or 1990. The prosecutor told the judge that the offence only came into being by statute in August 1991, and therefore there could not be any reference in the count to acts occurring prior to that date, and the judge noted this. The prosecutor continued that reference was made to earlier events on the basis of them being, "as it were, uncharged acts to indicate context in relationship and they'd be before your Honour in any event". No objection was taken to this course, and the appellant accepted the victim's account of the abuse in its entirety. The prosecutor did not submit that the appellant fell to be sentenced for the sexual abuse which occurred prior to 5 August 1991, and it is clear that the judge understood the submission. The prosecutor said that the sexual acts engaged in by the appellant occurred "for the better part of seven to eight years". The period covered by the count in fact covered six years and nine months or thereabouts, and it was accepted by defence counsel that the relationship lasted for the entirety of this period. When the judge in his reasons for sentence referred to this period, it seems to me that his Honour was merely quoting what the prosecutor had said in his opening, making a statement which was both factually correct and accepted as correct by defence counsel.

12 There is, I think, nothing in the reasons for sentence which indicates that the judge included a component for the sexual abuse which occurred prior to 5 August 1991. It was, in any event, important for the judge to give consideration to the overall facts in context, including that the abuse began when the complainant was only three years old, having regard to the psychiatric and psychological evidence upon which the appellant relied, and the principal purpose of which appears to have been to show that there was little or no prospect of the appellant re-offending. The appellant's rehabilitation being a principal issue in sentencing, the judge had no alternative but, in this respect, to take into account the full context in which the offence had occurred.

13 I would accordingly reject ground 2.

14 Ground 5, which was argued next, claims that the judge made findings as to the likelihood of re-offending, to the effect that the court "had significant unease" about the issue and that it "could not say with any degree of confidence that you will be unlikely to commit further sexual offences against children". It was submitted that these findings were contrary to the evidence, being based on extracts taken out of context from the reports of both Mr Rigby and Mr Jontof-Hutter. The argument was that the judge failed to have regard to the ultimate conclusions reached by both experts and that his Honour treated past statements by the appellant as if they represented the present situation. It was argued that his Honour's finding as to the appellant's likelihood of re-offending was inconsistent with the finding of remorse, that the appellant was now in an appropriate and supportive relationship, and with all that had occurred in the seven or eight years since the appellant ceased offending. It was put that the finding was significant for sentencing purposes because it led his Honour to hold that specific deterrence was an important sentencing consideration.

15 As was pointed out by Callaway, J.A. in Boyle[1], it is not an error of law to reject uncontradicted testimony and it is open to a tribunal of fact to form an opinion contrary to expert evidence. But it was, I think, open on the evidence as it stood for the judge to reach the conclusions to which he came, or the absence of any conclusion, concerning the possibility of the appellant re-offending. The evidence of Mr Rigby contained a number of statements, some of which have already been quoted, to the effect that the appellant's abnormal preoccupation with sex was entrenched, and that this pattern had been resistant. Mr Rigby's comments that the appellant's "unreachable quality is an obstacle to his recovery that he is gradually mastering" and that his "progress is likely to be slow, however" are simply two examples of a number of caveats and reservations expressed by him about the appellant's future prospects. It seems to me that, in light of the appellant's admitted behaviour for a period of more than seven years, the judge was perfectly entitled to have significant unease that he might re-offend. Public protection was clearly an important sentencing consideration for the court. I share the judge's view that it could not be said with any degree of confidence that the appellant "would be unlikely to commit further sexual offences against children". Nor is the fact that the appellant was plainly remorseful inconsistent with these conclusions.

16 Ground 5 also fails.

17 Ground 3 claims that the judge was in error in ignoring the wishes of D, who said in her impact statement that she hoped the appellant would not be imprisoned for more than five years. It was submitted that the judge was wrong to take the view that it would be quite improper for the court to take his daughter's expressed view in this regard into consideration when sentencing him. There is nothing in this ground. The judge was, I think, correct in giving no weight to the complainant's expressed wish. The attitude of the victim to the magnitude of a sentence such as this is, I think, usually to be disregarded by the sentencing judge.[2]

18 By ground 4, complaint is made that the judge said in the sentence:

"Clearly the aspects of just punishment and deterrence, whilst specific and general, must be important considerations for this court. Disturbingly offences of this nature have become far too prevalent in our community."

Mr Boyce argued that the matter of prevalence had not been raised on the plea, and that if the judge intended to rely on prevalence to justify particular weight being given to general deterrence, there had to be at least some evidentiary basis for such a finding.

19 I would accept at once that if a judge intended to rely on prevalence as a basis for justifying particular weight being given in sentencing, say, to general deterrence, it would be necessary to have some evidentiary basis for such a finding, unless the prevalence of the offence was notorious.[3] But the nature of the offence committed here by the appellant was such that much weight ought in any event to have been given to general deterrence. For example, having regard, for example, to what was said by Hedigan, A.J.A. in R. v. Ware[4], sexual abuse by fathers against their daughters might well be said to be notoriously prevalent in this community. But it is unnecessary to deal with this issue because I would not accept that the judge's reference to prevalence weighted his Honour's instinctive synthesis in such a way that less than proper weight was given to mitigatory factors. There is nothing in this ground also.

20 Ground 1 complains that the sentence imposed was manifestly excessive in light of the various particulars stated in the ground. The appellant's offending occurred over a lengthy period, the count alleging almost seven years. It was submitted by Ms Cannon for the Crown, quite rightly, that the appellant's acts were persistent, repulsive and unnatural; that he exploited the victim, who was his natural daughter; that he subordinated her, both physically and psychologically, to his demands and acts; and that she suffered, and continues to suffer, from the consequences of his offending. By his actions the appellant breached the trust placed in him as the father of a young girl, and his offending was very serious and merited condign punishment. In this case, factors of particular importance in sentencing included general deterrence, denunciation, and punishment and retribution. As Hedigan, A.J.A. said in R. v. Ware[5], with the agreement of Winneke, P. and Hayne, J.A.,

"The courts have had occasion more often than they would care to remember, particularly in the last decade, to consider matters raised by these cases involving both the interests of young persons and societal interests in protecting them by the detection and punishment of this type of crime, which strikes at the familial roots of civilised society."

21 Notwithstanding the mitigating factors relied on by defence counsel on the plea, the sentence imposed was in my view well within the appropriate range. Had I taken the view that there was any substance in any of the grounds alleged in this appeal, I should myself have proposed a sentence no less substantial, either as to head sentence or non-parole period, in place of that imposed by the judge.

22 I would dismiss the appeal.

25 The order of the Court is that the appeal is dismissed.

[1] (1996) 87 A . Crim. R. 539 at 546.

[2] R. v. Skura [2004] V.S.C.A. 53 at [48].

[3] R. v. Downie and Dandy [1998] 2 V.R. 517 at 520 - 522.

[4] [1997] 1 V.R. 647 at 653.

[5] [1997] 1 V.R. 647 at 653.