R v Garratt [2002] VSCA 160

9. On 23 August 2001, his Honour sentenced the appellant as appears in the Schedule to these reasons. The total effective sentence was 12 years and 6 months' imprisonment and his Honour fixed a non-parole period of 9 years. In respect of counts 3 to 13 the appellant was sentenced as a serious offender for the purposes of the Sentencing Act 1991. On 5 September 2001, the appellant filed a notice of application for leave to appeal against sentence on grounds to which I will refer later

and, on 9 November 2001, he was granted leave to appeal by a judge of this Court.

13. It is now necessary to set out briefly the context in which the offendings occurred and the background to the appellant's plea of guilty. In doing so, I draw on the summary of evidence compiled by the Crown, the correctness of which was not challenged by the appellant's counsel (save for some immaterial details).

17. In 1997, the appellant lived with his wife and their nine-year-old son in an outer eastern suburb of Melbourne. The mother of A was a close friend of the appellant and his family. In August or September 1997, A, who was born in May 1990 and who was therefore then aged seven, was invited to stay with the appellant and his wife while her mother was attending to her young baby who was ill, and counts 1 and 2 occurred whilst A was living with the appellant's family. On the second night she was there, the appellant pulled down her pants and placed her hand on his penis and had her rub it. He then touched her vagina. A complained that it was hurting. Those acts were the subject of count 1. On the third night that A stayed with the appellant he tried to insert his penis into her vagina. He said to her, "This is OK. This won't hurt you." A became upset and the appellant took her home to her mother. He told her not to tell anyone what had occurred between them because "bad things would happen" to her if she did. In the result, A made no complaint at the time. The acts of offending were the subject of count 2.

21. The offences which are the subject of counts 3 to 8 occurred on various dates between 1 May 1998 and 31 October 1998. B and her mother, a single parent, were former neighbours of the appellant and between those dates B stayed at his home for extended periods, living there as part of his family, because her mother was experiencing financial and housing difficulties and needed child care.

24. The first three of those counts arise from B's first complaint against the appellant made in March 2000 to which reference is made later. The first, representative count 3, relates to numerous occasions when the appellant touched or fondled the complainant's vagina. Generally this was done over her clothing, but on at least three occasions underneath her underpants. He also touched her on the vagina while she was in the bath. On another occasion he touched her vagina while they were sleeping in a tent in the backyard of the appellant's home. The appellant admitted fondling B's vagina "quite a few times" and that it happened "quite regularly".

27. Count 4 relates to one occasion when B's friend C, the appellant's third victim, slept overnight with B at the appellant's home. On that occasion the appellant licked B and C on the vagina. (In so far as this incident relates to C, it is covered by the representative count 10.) Count 5 relates to one instance when B was in her bedroom. The appellant fondled her vagina over her clothes and then grabbed her hand and made her play with his penis.

30. Counts 6, 7 and 8 arise from B's second complaint made in August 2000[3]. Count 6 is concerned with the occasion when the appellant masturbated himself in front of B before inserting his penis in her mouth (the act of penetration being part of count 7). Count 7 is a representative count which is concerned with the appellant inserting his penis into B's mouth on a number of occasions - the appellant admitted "a couple of dozen times". He also admitted that generally, on those occasions, he ejaculated either on the girl or in the nearby towel. In her complaint in August 2000, B said that such sexual penetrations occurred on five occasions, and, although she could not recall specific incidents, she did say that on one occasion he ejaculated in her mouth, which nearly made her vomit, and she ran into the bathroom and "spat it out". Count 8 relates to an incident where the appellant rubbed Canestan cream over his penis and then inserted it into B's anus. She told him to stop but he continued. She said, "It seemed like a very long time to me, because it kept hurting." She reported that she was crying at the time but the appellant said to her, "Don't cry so loud. Put your head on the pillow so no one hears you." B said that it hurt every time she sat down for the next day or two.

34. Counts 9 to 13 relate to C, who was aged seven and eight years during the appellant's offences against her. She lived with her parents in a house near the appellant and was a friend of B and the appellant's son. She stayed at the appellant's house on a number of occasions between 1 May 1998 and 31 October 1999.

37. Counts 9, 10 and 11 are representative counts relating to numerous offending acts by the appellant against C. Count 9 relates to at least two occasions when she remembered the appellant touching her on the vagina, as well as one occasion when she remembered seeing him touch B on the vagina while B was asleep at his house. The appellant had earlier admitted that he had touched C on the vagina "quite a few times". Count 10 encompasses two occasions on which the appellant licked C's vagina, including a night when she was "sleeping over" in his house with B. C said that "He'd normally do it really, really hard ... . My vagina would get really, really sore". Again, the appellant had earlier admitted that offence. Count 11 relates to incidents where the appellant inserted his penis into C's mouth, but, as distinct from the preceding two counts, C did not refer to those incidents in her VATA tape statement in August 2000. The offence was, however, voluntarily disclosed by the appellant on 30 March 2000, when he admitted that he had engaged in that conduct on about a dozen occasions.

40. Counts 12 and 13 were the subject of C's complaint of August 2000. Count 12 relates to an incident where the appellant inserted his tongue into C's vagina. She said that, afterwards, "it started really stinging". Count 13 relates to an attempt by the appellant to insert his penis into C's anus. She kept telling him to stop but he would not listen. Finally, she started crying because it was hurting. The appellant then desisted. C continued crying but the appellant told her to go to sleep. C said she feared that she would be yelled at if she kept crying.

44. At approximately 1 p.m. on 23 March 2000, the appellant drove his motor car to the primary school attended by B and her young brother. The appellant thought the time would coincide with the school's lunch hour and admitted that he knew B was at the school through inquiries he had made at her previous school. He said that he wanted to contact her. B, however, had observed the appellant's car when it was stationary adjacent to the school and when it circled the school, and had alerted the school staff. Members of staff reported that B was agitated and anxious at the time.

48. During the course of his offending the appellant made efforts to ensure that the victims did not disclose his criminal conduct to anyone. For example, he told them that he would go to prison if they told anyone what had occurred between them, and he said that they too would go to prison, or that "bad things would happen to them", if they disclosed his conduct. They also said that the appellant offered them small sums of money and gifts if they engaged in acts of sexual penetration. Moreover, on at least one occasion the appellant sought to attribute escalation of the offending to his young victim. In relation to the instance of vaginal touching in the tent, he claimed in his record of interview that " ... she didn't stop me, ya know. And then she reached over and started touching me, so it sort of escalated from there."

51. The material before his Honour also showed that, with the benefit of hindsight, it was apparent that during the time the offences were being committed, the children showed signs of distress which included bed wetting, thumb sucking, moodiness and stomach upsets. The judge found that it was clear that, the offending having occurred over a lengthy period and having involved repeated acts of penetration, the long-term effect of such behaviour on the young girls "can only be a matter of speculation".

55. On 28 April 1999, A, who was by then only eight years old, complained to her mother and then to the police about the appellant's offending conduct towards her. He denied the allegations when he was interviewed by the police in relation to them on 14 May 1999.

58. In early March 2000, B made a complaint by way of a VATE tape statement about the appellant's conduct towards her (and C), but she did not then mention the offences which later formed the subject of count 7. As at March 2000, C refused to make a statement about the matter. B's complaint, however, led to the appellant being arrested on 30 March and, as his Honour observed in his sentencing remarks, he had been in custody since that day. In a record of interview on 30 March, he admitted sexual contact with both B and C and disclosed the offending which constitutes the basis of counts 7, 9, 10 and 11. Following a committal mention on 8 June 2000, an eight-count presentment, which included several representative counts, was settled following negotiations between the prosecution and defence. A plea was to be heard in the County Court in September 2000. On 14 August, however, B made a second VATE tape statement alleging further misconduct by the appellant against her, including the count 7 offending (to which I have already referred) and on 24 August 2000 C was interviewed and made allegations against the appellant by way of a VATE tape statement, including the counts 9 and 10 offences, although not the conduct that constituted the basis of count 11. In light of these developments, a new charge was filed against the appellant in January 2001 and a committal mention was then set for 19 March 2001. It was adjourned for a contested hearing to be held in June 2001. In the interim, however, negotiations proceeded and resulted in the appellant's plea of guilty to the present presentment and the summary offence.

62. The appellant was born in the United Kingdom in 1952 and came to Australia with his parents and two brothers in 1960. He lived in Wollongong for a number of years working variously as a labourer in the steel mills, as a sales coordinator and as a security officer. As I have said, he admitted a number of prior convictions dating back to 1971 which occurred in and around Wollongong. After he was convicted on the last such occasion and placed on an adjourned bond for a period of three years in July 1992, the appellant and his family moved to Victoria and eventually settled in a house where the offences in question occurred. The appellant has been married twice, the first marriage lasting only two years. He met his present wife in the late 1970's and they were married in the early 1980's. They have one son who was born in the early 1990's. The appellant's wife suffers from a number of medical conditions, and it seems that whilst the victims were staying at or visiting the appellant's home, his wife was, on many occasions, confined to bed and during some of the period of his offending the appellant was unable to have sexual intercourse with her.

65. The learned sentencing judge rejected Mr Joblin's diagnosis of the appellant's paedophilia as being "by default" and found that the appellant's behaviour was "predatory rather than opportunistic".

68. I now turn to the appellant's arguments in support of the grounds of appeal.

72. Mr Hughan for the appellant first argued ground 2, under cover of which it is alleged that his Honour erred in fixing a sentence on count 7 of five years' imprisonment, in light of the voluntary disclosure by the appellant of the offences covered by that count, when those offences were not known to the authorities. Counsel's argument in support of this ground boiled down to this. Counts 7 and 11, it was said, were relevantly similar in that they were representative counts which charged the appellant with a like offence against two victims who were under the age of ten years at the relevant time. Both offences, said Mr Hughan, were first made known to the police because of the appellant's voluntary disclosure of them. B did not disclose the count 7 offence in her first VATE tape statement and C did not allege the count 11 offence at all. Counsel submitted that this voluntary disclosure entitled the appellant to a "significant added element" of leniency, relying on what McHugh, J. said in Ryan v. R.[4], namely:

"The statement in Ellis that 'the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency' is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case."

It was then said that the judge fell into error when he gave such a sentencing discount in relation to count 11, but gave no, or alternatively only a smaller, sentencing discount in respect of count 7.

77. In his sentencing remarks, the judge expressly acknowledged that he had to have regard to the appellant's guilty pleas, to the admissions made to the police and to the fact that "those admissions went beyond specific complaints made by the girls". He then said: "I have given the [appellant] significant allowance by reason of [his having pleaded guilty] and a further allowance in respect of count 11". The judge then cited part of the passage from the judgment of McHugh, J. in Ryan to which I have just referred.

80. In my view, however, even if it is assumed that his Honour gave the appellant a smaller sentencing discount in relation to count 7 than he gave in respect of count 11, he did not err because there is a material qualitative difference between the two sets of disclosures, fully justifying a differential in sentencing discount as between the two counts. As McHugh, J. said in the above passage in Ryan, the principle that a sentencing discount should be given to an accused who makes a voluntary admission of an unknown offence that was committed by him or her, is not to be "quantitatively, rigidly or mechanically applied". Much depends on the significance of the disclosure. Put simply, the count 11 offence was and would have relevantly remained unknown but for the appellant's voluntary disclosure of it. The same cannot be said in relation to the count 7 offence, as B complained of it in August 2000. Given that the appellant had disclosed more than B did as to the number of occasions when the sexual penetration occurred, it was nevertheless a disclosure of less significance than that relating to count 11, and therefore a differential in the sentencing discounts as between the two counts was warranted.

83. I consider that the appellant's alternative claim that the judge gave no sentencing discount at all for his disclosure in relation to count 7 is also without foundation (notwithstanding that in his report to this Court the sentencing judge candidly stated that he could not recall whether he had given such a sentencing discount). The appellant's disclosure of the count 7 offence fell into a category similar to his disclosure in relation to the offences which formed the subject of counts 9 and 10, in the sense that, in respect of each of those three counts, the relevant victim had made a subsequent complaint so that those counts were based on two sources of information, one source being the appellant and the other the relevant victim. It seems clear enough that his Honour had those three disclosures present to his mind when he spoke of "admissions [that] went beyond the specific complaints made by the girls". It will be recalled that the judge then went on to speak of making "a further allowance in respect of count 11". In my view, he did so because he recognised that the sole source of information for that count came from the appellant and this warranted a greater sentencing discount. Such an allowance was "further" to the allowance of which his Honour spoke a little earlier, being that in respect of the "admissions that went beyond the specific complaint ...". In my view, in speaking of those "admissions", his Honour could only have been speaking of the appellant's disclosures in relation to the offences which were the subject of counts 7, 9 and 10. Further, there were of course very good other reasons for the sentence on count 7 being heavier than that imposed on count 11, given the appellant's aggravating conduct in respect of that count.

86. Consequently, I am of the view that ground 2 must fail.

90. Turning now to ground 1, it is claimed under cover of that ground that the total effective sentence is manifestly excessive because:

(i) it is crushing in the light of the age of the appellant and his family circumstances;

(ii) due weight was not given to the voluntary disclosure of the appellant of serious offences not known to the authorities;

(iii) of the delay in the proceedings.

96. In support of particular (i), it was contended, in essence, that his Honour did not give sufficient weight, first, to the hardship that will be suffered by the appellant and by his family by his having to serve the sentence, given the illness of his wife who relies heavily on his assistance; secondly, to the fact that his young son was not permitted to see him for eight months prior to his being sentenced; and, thirdly, to his age. In my view none of those factors constitute hardship in the relevant sense - see R. v. Holland[5] - such as would entitle the appellant to a material sentencing discount, although no doubt they were matters to be taken into account in synthesising the total effective sentence. It is not said that his Honour failed in this regard.

99. Similarly, for the reasons I have given, there is no substance in the complaint that there should have been a significant added element of leniency in respect of the total effective sentence imposed because each of counts 7, 9 and 10 involved criminal conduct which was disclosed by the appellant before the victims made those allegations.

102. As to the claim in particular (iii), the delay in the proceeding is explicable by, inter alia, the need for the police to complete their investigations, particularly given that the appellant was not forthright with them when the first complaint was made by A in May 1999 and by the fact that the complainants were still young children, so that special arrangements had to be made in recording their statements and otherwise dealing with them. Moreover, the appellant then had to be given the opportunity of refuting the allegations. In the circumstances, the delay was not an undue delay as is contemplated in R. v. Miceli[6]. In any event, it is clear from his Honour's sentencing remarks that he was fully aware that the appellant had been arrested on 30 March 2000 and that he had been in custody ever since. I have no doubt that this fact was part of the mitigatory matrix to which he had regard for the purposes of the sentencing disposition.

105. In my view, it also cannot be said that the total effective sentence is manifestly excessive. It is to be borne in mind that whether it is such a sentence does not admit of much argument. When all the relevant circumstances are considered, the sentence appears to be manifestly excessive or it does not. It is not a question of what sentence this Court would have imposed on the appellant had it been in the shoes of the sentencing judge. Rather, the question is whether it is reasonably arguable that the sentence that was imposed by his Honour is outside the range of sentences that was properly available to him. In fixing the total effective sentence, the sentencing judge had to fix a sentence which, inter alia, properly reflected the gravity of the appellant's criminal conduct having regard to all the relevant circumstances. That the offences to which the appellant pleaded guilty were serious is made plain by the maximum terms of imprisonment prescribed for them by Parliament which are set out in the Schedule to these reasons. Moreover, the circumstances of the offending were most serious, given that they involved paedophilic conduct over a considerable period - two years - in respect of three very young girls in relation to whom the appellant stood in a position of trust. The offending conduct was of a predatory nature and the appellant took steps to frighten them into being silent about his crimes and offered them inducement to participate in his perverse conduct. Worse

still, on at least one occasion he sought to shift the responsibility to his seven or eight year old victim. Moreover, he continued his criminal conduct after being confronted in May 1999 when he made false denials. Moreover, the appellant had a prior history of sexual offending against young girls, and in all the circumstances, the principles of special and general deterrence were of particular relevance in the sentencing disposition in this case, as were the principles of denunciation and just punishment for them. Furthermore, the appellant had to be sentenced in relation to most of the offences as a serious offender. It is plain that his Honour had regard to those matters just as he did to the matters that were of a mitigating nature, including those personal to the appellant.

109. In the circumstances, as I have said, it is my view that the total effective sentence is within the range of sentences that was properly open to his Honour, and consequently, ground 1 must fail.

112. For these reasons, I would dismiss the appeal.

124. The order of the Court is that the appeal against sentence stands dismissed.

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1 Indecent act with a child A 47(1) Crimes Act 1 year 10 years

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2 Attempted sexual A s.321M Crimes 3 years 20 years

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3* Indecent act with a child B 47(1) Crimes Act 1 year 10 years

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4* Indecent act with a child B 47(1) Crimes Act 1 year 10 years

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5* Indecent act with a child B 47(1) Crimes Act 1 year 10 years

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6* Indecent act in the B 47(1) Crimes Act 6 months 10 years

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7* Sexual penetration with B 45(1) Crimes Act 5 years 25 years

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8* Sexual penetration with B 45(1) Crimes Act 4 years 25 years

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9* Indecent act with a child C 47(1) Crimes Act 1 year 10 years

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10* Indecent act with a child C 47(1) Crimes Act 1 year 10 years

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11* Sexual penetration with C 45(1) Crimes Act 3 years 25 years

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12* Sexual penetration with C 45(1) Crimes Act 2 years 25 years

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13* Attempted sexual C s.321M Crimes 3 years 20 years

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Summary Loitering near a school B s.60B Crimes 6 months Level 7 fine

Offence without reasonable Act 1958 (cumulative) or imprisonment

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TES: 12 years, 6 months imprisonment. Section 18(1) declaration: 512 days.

[1] The counts are described in the Schedule attached to these reasons. It also sets out in respect of each count, the description of the offence, the relevant victim, the statutory provision creating the offence, the maximum penalty prescribed under it and the sentence imposed by the judge. Also shown in the Schedule are the cumulations that were ordered by his Honour.

[2] In order to preserve the anonymity of the three victims, I have simply called them A, B and C.

[3] As will appear later, the appellant had, on 30 March 2000, voluntarily told the police of some of his offending conduct which is the subject of count 7.

[4] [2001] HCA 21; (2001) 179 A.L.R. 193 at 197.

[5] [2002] VSCA 118.

[6] [1997] VSC 22; (1997) 94 A.Crim.R. 327.