R v Garner [2000] VSCA 85

13. The applicant was sentenced to 18 months' imprisonment on each of counts 3 and 4, 12 months' imprisonment on each of counts 1 and 2, nine months' imprisonment on count 5, six months' imprisonment on each of counts 6 and 10, eight months' imprisonment for the summary offence, three months' imprisonment on count 8, two months' imprisonment on count 11 and one month's imprisonment on each of counts 7 and 9. The judge directed that the whole of the sentences passed on counts 5 to 11 and the sentence for the summary offence, together with six months of the sentence passed on count 2 and 12 months of each of the sentences passed on counts 3 and 4, be served cumulatively upon each other and upon the sentence passed on count 1 but that otherwise the sentences be served concurrently. As I have mentioned, that made a total effective sentence of six-and-a-half years' imprisonment in respect of which his Honour fixed a non-parole period of five years.

16. If one makes a chart showing the offence charged, the victim, the circumstances of the offence, the maximum penalty and whether or not the count was representative, one begins to see the care that went into the structure of the sentence. That impression is confirmed by the sentencing remarks. I would not infer, as counsel submitted we should from his Honour's report pursuant to Rule 2.27 of the Supreme Court (Criminal Procedure) Rules 1998, that he erred in the manner identified in Director of Public Prosecutions v.Grabovac.[2]

19. The applicant seeks leave to appeal against sentence on six lettered grounds as follows:

"The learned sentencing judge erred in the following respects:

(a) the sentence on the summary offence was excessive having regard to the level of indecency of the material;

(b) in ordering cumulation of the sentence for the summary offence;

(c) in not ordering greater concurrency in relation to counts 3 and 4, which relate to similar conduct in relation to the same victim and same period;

(d) in ordering total cumulation of counts 5 to 11 on each other and on count 1;

(e) in not providing for a greater difference between the head sentence and the non-parole period, having regard to the fact that none of the victims were buggered, the applicant's remorse, plea of guilty, public disgrace, loss of business, confiscation of a houseboat valued at $110,000 and the learned judge's acceptance of expert evidence that the applicant is a low to moderate risk to reoffend;

30. The valuation referred to in ground (e) was made by the manager of the Jerusalem Creek Marina and Camping Ground on a walk-in walk-out basis on 16 December 1998. The expert evidence referred to is that of Mr Ball, whose report was in evidence below and who was called to give evidence on the plea.

33. Before turning to counsel's submissions I shall say something of the applicant's background and the circumstances of the offences. From 1977 to 1989 the applicant lived alone in a two storey house on a double block with a swimming pool at Frankston. After 1989 he resided at Cranbourne South. Those houses were the locations of the offences charged in counts 1, 3, 5, 6, 8 and 11 and the summary offence. He owned a houseboat, more fully described on the back of the presentment as a 13.7 metre powered cabin cruiser, which was moored at Lake Eildon. That was the location of the offences charged in counts 2, 4, 7, 9 and 10. A forfeiture order made by the learned judge, by consent, included the houseboat.

36. The applicant became known to the complainants and their families in his role as their financial consultant or local scoutmaster. Over a period of time he gained their trust and respect. Some years after leaving the scout movement, which had provided him with the opportunity for the offences for which he was sentenced in 1981, the applicant set up a boys' club operating from his home in Frankston. It was attended by about 15 boys whom the applicant taught skills such as rope-tying and other scout-like activities. With the consent of their parents he took some of them on camping trips, motorcycle riding, water-skiing, staying on the houseboat at Lake Eildon and on holidays interstate and, on one occasion, overseas.

39. The complainant L was introduced to the applicant by the M family when he was 13. By that stage the applicant was running the boys' club. The first representative count related to indecent assaults committed at Frankston and the second to indecent assaults committed at Lake Eildon. At both locations the applicant directed the complainant to sleep with him and fondled the boy's penis, sometimes placing the boy's hand on his own penis. L said that the applicant sexually assaulted him on about 20 occasions in 1985 and 1986 when he was aged 14 to 15. In a record of interview the applicant admitted touching L's penis numerous times and fondling him, mainly when the boy was asleep.

42. The applicant met the M family when he was engaged as their insurance representative and financial consultant. The complainant M and two brothers became involved in the scout group where the applicant was scoutmaster. In 1988 the applicant invited M to attend the Bicentennial Exposition in Brisbane. The boy's parents consented and he spent two weeks travelling by car with the applicant. It was whilst staying at various motels on that trip that he was first sexually assaulted but thereafter the applicant remained a trusted family friend and M was allowed to spend weekends at Lake Eildon and to stay at the applicant's house. Count 3 was representative of occasions on which the applicant took part in an act of sexual penetration with M at Frankston and count 4 was representative of occasions when he took part in an act of sexual penetration with the complainant at Lake Eildon. At the time of those offences, M was aged 10 and 11. The applicant admitted fondling him during the Queensland trip and to sexually assaulting him on numerous occasions both at home and on the houseboat. Count 6 charged an act of sexual penetration committed at Cranbourne South on M's 13th birthday. The applicant did not deny that allegation but could not recall it. He admitted sexual assaults committed against M from the age of 9 to 15.

45. The complainant A was introduced to the applicant by a friend and often stayed with him and other boys on the houseboat. Sometimes he went camping or stayed overnight at the applicant's house. He described three specific occasions, which were the foundation for the fifth representative count, committed when he was 11 or 12. On one of them he had been swimming naked with the applicant in the pool at the house at Frankston. When he was changing in the applicant's bedroom the applicant began touching his penis. The boy was lying on the bed and the applicant offered him money if he would allow him to suck his penis, which then occurred. Count 7 related to an occasion when A was 13. The applicant touched him on the penis whilst they were wrestling in a playful way in the lounge area of the houseboat. They were both fully clothed and the applicant desisted when A told him to stop. The applicant was not interviewed in relation to the specific allegation the subject of count 5. He did not deny the allegation the subject of count 7 but could not recall the circumstances. He admitted touching and fondling A in a sexual way over a period of time.

48. The complainant H met the applicant through his cousin A and spent a lot of time with the applicant and other young boys both at the applicant's home and on the houseboat. He also went on a motorcycle camping trip with the applicant and other boys. One evening in 1996, after the camping trip, he stayed overnight at the applicant's house and they slept in the same bed. H was wearing boxer shorts or underpants and the applicant was naked. The applicant started rubbing the boy's buttocks and, when he objected, promised that he could shoot an air rifle and would be provided with air rifle slugs to do so. The applicant was not interviewed in relation to this allegation.

51. I interpolate that it was not the only occasion on which such inducements were offered. M said, for example, that, during the period that he was molested by the applicant, he was given presents such as bicycles and Nintendo games.

54. In February 1997 H and the complainant E travelled with the applicant to Lake Eildon. One morning the applicant took the houseboat to a remote part of the lake. H said that when they were swimming naked in the lake the applicant touched his penis. The applicant denied that allegation in the record of interview, but it was the subject of count 9 to which he pleaded guilty. On the same morning the applicant told H and E to hold each other's penises whilst the applicant videotaped them. His voice and laughter can be heard on the tape encouraging the complainants' behaviour. He admitted making the video recording, which was the subject of count 10.

57. Count 11 related to an occasion in November 1997 when the applicant videotaped E whilst he was naked in the shower recess at the applicant's home. That also was admitted.

60. Police attended at the applicant's home at Cranbourne South and executed a search warrant. They seized numerous photographs and video cassettes depicting child pornography. The items seized related to counts 10 and 11 as well as being the foundation of the summary charge.

63. The applicant participated in two recorded interviews, in the course of which he made numerous admissions, but some of his answers were evasive and there was at least one false denial. It should also be mentioned that, after being interviewed the first time, the applicant telephoned A, requesting him not to talk to the police and asking him to contact his cousin H and request him not to talk to the police either. As counsel conceded on the plea, it could not be contended that the applicant's admissions or co-operation with the police were total.

66. Mr Holdenson reminded us that the applicant pleaded guilty, if not at the earliest opportunity available to him, then at least at the second committal mention, thereby saving time and expense to the community as well as sparing the five complainants the trauma of giving evidence. Counsel also referred to the applicant's admissions and co-operation with the authorities and to his consenting to the making of both forfeiture and confiscation orders, which, as I have mentioned, included the houseboat. In addition, the applicant did not oppose the making of compensation orders under s.86 of the Sentencing Act 1991, although in the event the judge declined to make those orders. In all the circumstances, counsel said, the pleas of guilty were also evidence of remorse.

69. He acknowledged that the judge accepted each of those matters. In particular his Honour said that the applicant's plea of guilty constituted a significant mitigatory factor. Counsel submitted that that supported the submission he would later make that the sentence was manifestly excessive. If significant weight had been given to the plea of guilty and its consequences, what, counsel asked rhetorically, would the sentence have been in its absence? I should say at once that I do not accept that submission. I think the sentence would have been significantly more severe.

72. I have earlier referred to the report and oral testimony of Mr Ball, a forensic psychologist, under whose supervision the applicant had successfully completed a sex offenders' treatment program of a kind that is thought to be much more effective than the therapy that he was offered after his convictions in 1981. Counsel submitted that the applicant's undertaking that course further evidenced his remorse, showed that he did not wish to reoffend and demonstrated that he had good prospects of rehabilitation.

75. Mr Ball's assessment was that the applicant presented a low to moderate risk of reoffending. Subject to a qualification to which I shall refer later, that assessment was accepted by the judge. In his evidence, Mr Ball drew a distinction between an offender such as the applicant and an offender where paraphilia is diagnosed. The applicant is not in the latter class, but rather, in Mr Ball's words, "has clearly made a choice about his sexual preference and his manner of pursuing that". That evidence and the applicant's compliance with the bond have a bearing on specific deterrence as one of the factors in an appropriate sentence. Moreover, he was not a sick man driven by impulses difficult to control but a man who made a deliberate decision, executed over a long period of time, to satisfy his desires in the predatory manner disclosed by the offences.

78. The next branch of Mr Holdenson's argument related to cumulation. He conceded, as was inevitable, that some cumulation was required but submitted that the measure of cumulation was excessive. The individual sentences were decided upon in a discriminating fashion. They reflect the distinctions that his Honour drew between the level of seriousness of the various kinds of molestation involved. Their moderate length, in the case of the 11 counts on the presentment, plainly reflects a view not only of the seriousness of the offences but also a mindfulness of mitigating factors.[3] No criticism is made of the individual sentences other than that imposed for the summary offence. The directions for cumulation similarly, in my opinion, were not indiscriminate. They have the effect of imposing an appropriate penalty with respect to each victim as well as leading to the total effective sentence that the learned judge considered to be just. This is not a case where cumulation has been, as it were, automatically or unthinkingly directed or where inappropriately low sentences have been decided upon with a view to cumulating all of them to produce a desired result.

81. Mr Holdenson did submit, as I have already foreshadowed, that the sentence imposed for the summary offence was manifestly excessive but, as Mrs Quinn pointed out, it reflected the number of different children involved in the photographs and video cassettes and their explicit nature. They were, as the learned judge said, taken by the applicant. There were 40 photographic slides, 27 photographs, a photo album and five video cassettes, which were consolidated into a single cassette for the purposes of the plea.

84. The total effective sentence was also said to be excessive bearing in mind what his Honour accepted was the limited nature of the offending and the circumstances of mitigation, many of which are referred to in another context in ground (e). The significance of those mitigatory factors will by now be clear, except perhaps the reference to the applicant's loss of business. He sold his business for $73,000. Under normal circumstances, it was said on the plea, it could have been expected to realise approximately $112,000.

87. Turning to the non-parole period, Mr Holdenson submitted that the matters personal to the applicant were of special significance at that stage of the sentencing process and that, in the light of the evidence given by Mr Ball and its acceptance by his Honour, it was appropriate that there be a significant disparity between the total effective sentence and the non-parole period if the applicant's rehabilitation were to be facilitated.[4] It was submitted that the gap between six-and-a-half years and five years was "unusual as a matter of impression". I do not think that it is. I shall return to this branch of counsel's case in a moment.

90. In my view all the mitigating factors on which counsel relied were not only taken into account by the judge but were given appropriate weight. The circumstances of aggravation were considerable. There were five separate victims, the offences spanned 13 years, if one counts the summary offence, and there were five representative counts. As his Honour said, the offences on the presentment involved an egregious breach of the trust reposed in the applicant by the complainants' parents, who were induced to believe that the applicant was providing healthy activities, moral support and an agreeable experience to their children, when in fact he was engaged in a well planned course of indecent conduct endangering their psychosexual adjustment. General deterrence, specific deterrence, just punishment, denunciation and the protection of the community were all relevant, albeit that they had to be tempered by the mitigatory factors to which counsel has referred and the prospects of reformation which his Honour accepted. In my opinion, each of the sentences is within the range, including the total effective sentence and the sentence imposed for the summary offence.

93. A judge should be given considerable latitude in the way in which, in a case such as this, he or she arrives at a just total effective sentence. Compare R. v. Mantini[5] and the cases there discussed. Earlier in these reasons I referred to the attention that had evidently been given to the offences charged, whether or not they were representative, their circumstances, the identity of the victims and the maximum penalties. I can detect no error in his Honour's directions for cumulation and concurrency, especially as, on many of the counts, the applicant stood to be sentenced as a serious sexual offender.[6]

96. When the learned judge accepted the evidence of Mr Ball he said immediately thereafter that the probabilities favoured the conclusion "that, if appropriately punished and appropriately guided within the adult sexual offenders' program, the prisoner will avoid behaviour threatening him with life in prison". We know from his Honour's report that he hesitated between a non-parole period of four-and-a-half years and a non-parole period of five years. The words "if appropriately punished" in the passage I have read are important in understanding the choice that his Honour made. Moreover the offences were of such a character that it was open to him and to us to consider that less than five years' imprisonment would not do justice, but would undermine the penal and deterrent objectives of the sentence.

104. I agree the application should be dismissed for the reasons given by Callaway, J.A.

114. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

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

[2] [1998] 1 V.R. 664 at 683.

[3] They also reflect a lower level of penalties at the relevant times.

[4] Cf. s.5(1)(c) of the Sentencing Act.

[5] [1998] 3 V.R. 340 at 348-350.

[6] Mr Holdenson conceded that they were counts 3 to 9.