R v H J M [2009] VSCA 267

1 The applicant pleaded guilty in the County Court to eight counts of sexual penetration of a child under 16, one count of wilfully committing an indecent act with a child under 16 and five counts of incest. After hearing a plea in mitigation of sentence, the learned judge sentenced the applicant as follows:

Incest (aiding and abetting child's mother or father)

2 This amounted to a total effective sentence of 11 years and 3 months' imprisonment. His Honour ordered that the applicant serve a non-parole period of 7 years and 9 months' imprisonment. The applicant was sentenced as a serious sexual offender on counts 3 to 14 inclusive, under Part 2A of the Sentencing Act 1991.

3 The applicant now seeks leave to appeal against the individual sentences, the total effective sentence and the non-parole period.

4 The applicant is now 44 years old. He was aged between 39 and 40 years at the time of the offences and 41 years at the time of sentence.

5 All the offences were committed between 1 January 2005 and 12 February 2006 in Swan Hill, against the same victim, XY, who was between 10 and 11 years old. The applicant was the nephew of XY's father ('father'),[2] who had been in a long-term sexual relationship with XY's mother ('mother').

6 The mother, father, and GG, who was also the father's nephew, were all involved in the offending and pleaded guilty to similar offences.[3] Based on the reasons of the judge who sentenced the mother and father, his Honour accepted that the father was the 'dominant and organizing [sic] personality in the offending'.[4]

7 The judge who sentenced both the applicant and GG described the offences as follows:

In general what would occur is that [the father] would return to [XY's] premises, on completion of a delivery trip in his truck, and [the father] would then bath and have [XY] come into the bath and have her perform oral sex on him. After that he would take ... [XY] into the main bedroom and at this stage he would be joined by [the mother] and you [the applicant] or you GG, although the two of you were never together when the sexual abuse took place. Everyone would be naked and perform different sexual acts on each other and with [XY], including oral sex on [XY], [XY] performing oral sex on [the father, the applicant and GG and on the mother]. [The mother] would perform oral sex on [XY]. [XY] penetrating [the mother] at [the mother's] request or [the father's] direction. [The father] would insert his penis into [XY's] vagina. On occasion [the applicant or GG] would take [XY] to her own bedroom and would sexually penetrate her but, of course, that would be on an individual basis. To further compound your foul behaviour photographs were taken of various members of the group performing sexual acts upon each other and in particular with [XY] ...[5]

8 The offences to which the applicant pleaded guilty occurred on four separate occasions. Counts 1 to 5, which covered acts of sexual penetration, indecency, and incest (by aiding and abetting XY's mother and father to commit acts of incest) occurred on the first occasion. Counts 6 and 7 occurred on the second and third occasions, respectively, and involved the applicant sexually penetrating XY in her bedroom. XY's parents were in the house at the time those offences occurred, but were not otherwise involved in the particular sexual acts. Counts 8 to 14 occurred on a single occasion. His Honour described the nature of the acts which constituted the counts as follows :

Count 1 involving you place [sic] your penis in [XY's] mouth, which she did on the instructions of [the father]. Count 2 is on the same occasion being the placing of your tongue in [XY's] vagina shortly after Count 1. Count 3 occurred at the same time as Counts 1 and 2 with you rubbing your penis against [XY's] vagina without penetration. Count 4 is a count of incest whereby you aided and abetted [the father] in placing his penis in [XY's] mouth. Count 5 of incest relates to [the mother] placing her tongue in [XY's] vagina on the same occasion as Counts 1-4. Again you suggested in your record of interview that [the mother] did this at the instruction of [the father]. Count 6 is a count where you placed your penis in [XY's] mouth. On another occasion, as in Count 7, you placed your tongue in [XY's] vagina. Count 8 is another count of incest whereby you aided and abetted [the father] in placing his penis in [XY's] mouth. This occurring at the same time as you were engaging in oral sex with [XY] using your tongue. As for Count 9, this related to you inserting your penis into the mouth of [XY] as at the same occasion as Counts 8 and 10 where there was another occasion of oral sex with your penis in [XY's] mouth.

This occasion, as in Counts 8, 9 and 10 involved joint sexual activity with [the father and mother] also. Count 11 involves you placing your tongue into [XY's] vagina after the four of you, that is [the mother, father and XY] left the loungeroom and went to the bedroom. As in Count 12, you then placed your penis in [XY's] mouth. Count 13 involved you aiding and abetting [the father] to commit incest by placing his penis in [XY's] mouth. Count 14 is another count of incest when on the same occasion you aided and abetted [the mother] to introduce her tongue into the vagina of [XY]. Again you suggested that this was done by [the mother] on the instruction of [the father]. On being arrested on 13 February 2006 you made admissions to about five or six sexual incidents. It is significant that [XY] makes no reference to you in her statements as to you engaging in any sexual activity. But there are several photographs of you committing various sexual acts on [XY], sometimes in company with one or others of the co-accused. Such pornographic material was found on a search of the [relevant] premises.[6]

9 As would be expected, XY has been seriously harmed by the abuse. A report prepared by Dr Naomi Malone, a psychologist, stated that:

... although she is beginning to establish new relationships both at home and school, she appears to have both a low self-esteem and depressive symptoms, which I believe are highly likely to be related to the abuse she has suffered. [XY] has also been observed by others to become extremely upset and angry immediately following telephone access with her mother. It is my opinion that [XY] will require ongoing support to further acknowledge and explore deeper issues which are likely to arise for her, and [I] recommend that she have sessions at least fortnightly for at least the next 6 - 12 months.

10 The applicant admitted ten prior convictions arising out of six court appearances. These included convictions for aggravated cruelty to an animal in 1984 and 1986 (these offences occurred in the company of co-offenders), and a 1992 conviction for one count of sexual penetration of a child between 10 and 16, on which he was sentenced to be released on a Community Based Order for a period of 12 months. During the plea hearing, a further conviction for indecent exposure in 1980 was admitted.[7]

11 His Honour noted that the applicant had admitted his offending behaviour in his police record of interview. He said that this was a significant admission because XY had not referred to his involvement in her sexual abuse, in her police statement.

12 His Honour noted that the applicant's role in the offending involved him complying with the directions of his uncle, the father. Initially the father invited him to the mother's house to participate in sexual activities with the two adults. The child was later introduced into these activities and the applicant abused XY at the father's invitation, and with the mother's agreement.

13 His Honour noted the sentences imposed on the father and mother and GG, to which we refer below, but said that he did not consider that 'the principle of parity is applicable in these sentencing dispositions'.[8] In relation to the sentence imposed on the mother, his Honour took account of the fact that the abuse of XY ended as the result of the mother reporting the offending to the police after she had ended her relationship with the father and entered into a new relationship with another man. His Honour took account of the fact that the applicant's co-offender GG was intellectually disabled. He commented that 'the difference between the sentence imposed on you [the applicant] and that of GG, involves consideration of the number of counts upon which each of you were presented, the intellectual limitations of GG and his lack of sexual convictions prior to these proceedings, although counts 1 and 2 of which GG was convicted related to the 1980s'.[9]

14 At the hearing of the appeal, the applicant's counsel initially sought leave to lead new evidence, relating to the applicant's mental condition and his likelihood of re-offending. In sentencing the applicant the learned judge relied on psychiatric evidence that he was of normal intelligence and met the diagnostic criteria for paedophilia. On the appeal, the applicant's counsel sought leave to rely on a psychiatric report prepared by Dr Danny Sullivan and a neuro-psychological report prepared by Professor Crowe on 13 March 2009 and 21 June 2009, respectively, which were said to 'cast doubt on the evidentiary basis' of the findings made by his Honour in sentencing the applicant.

15 The psychiatric report of Dr Alan Jager tendered at the plea hearing was based on the doctor's impressions gained on interviewing the applicant, rather than on any testing of the applicant. The reports of Dr Danny Sullivan, a forensic psychiatrist, and of Professor Simon Crowe, a clinical neuro-psychologist, were based on extensive IQ and other testing.

16 Following discussion between the Bench and counsel for the applicant as to whether the subsequent reports of Dr Sullivan and Professor Crowe were admissible under the principles governing admission of new evidence on an appeal against sentence,[10] counsel for the applicant sought leave to amend the grounds to add (or rather, reinstate)[11] grounds of appeal alleging that the sentence was manifestly excessive (ground 1) and that there was an unjustifiable lack of parity between the sentences imposed on the applicant and his co-offenders (ground 2). Leave to amend the grounds of appeal by adding those two additional grounds was granted, with the consent of counsel for the Crown.

17 Counsel for the applicant submitted that a comparison between the individual and total effective sentences imposed on the applicant and his co-offenders, and in particular the mother, was such as to give rise to a justifiable sense of grievance in the applicant.[12]

18 It is therefore necessary to consider the circumstances of the other offenders and the sentences imposed on them.

19 The father was a married man aged 47 at the time of sentence. He maintained a sexual relationship with the mother for some 13 years and had two children with her. One of these children was the victim of the offences. The offences to which the father pleaded guilty and the sentences imposed on him were as follows:

Indecent act with or in the presence of a child under 16

Procuring a minor to make or produce child pornography

Sexual penetration of a child under 16 with the child under 10

Sexual penetration of a child under 16 with the child under 10

20 Count 1 (buggery) involved the father offending against the intellectually disabled brother of the applicant, many years before the offences were committed against XY. At that time the father was about 13 or 14 and the victim was six or seven years old. XY was the victim in all the other counts, although count 15 related to pornographic photographs, which included other children related by blood or marriage to the father, as well as XY. It was common ground that counts 2, 3, 6, 7 and 9 (incest), count 4, (indecent act) and counts 10, 11, 13 and 14 (sexual penetration of a child under 16, and in the case of counts 10 and 11, a child under 10) were representative counts. The father received a total effective sentence of 15 years' imprisonment and was ordered to serve a non-parole period of 11 years' imprisonment.

21 When the mother reported the sexual abuse of XY to the police she initially denied participating in the activities herself, but later admitted doing so and pleaded guilty to the counts set out below. The judge who sentenced her found that she was of low intelligence, but not intellectually disabled, and that she was remorseful for participating in the sexual abuse of her daughter for almost two years. He said that she had been subjected to extensive physical and sexual abuse as a child and accepted that she would have been 'more easily cajoled into incestuous and other unacceptable sexual behaviour'. The sentences imposed on her were as follows:

Procuring a child for the purpose of child pornography

Sexual penetration of child under 16 and her care, supervision and authority

22 Counts 1, 2 and 4 (incest) and counts 8 and 9 (sexual penetration of a child under 16) were representative counts. Counts 1 and 3 (incest) involved acts of penetration between XY and the mother, whilst counts 2 and 4 (incest) and 6, 7 and 8 (sexual penetration) occurred when the mother aided and abetted the father, the applicant or GG to commit various acts of sexual abuse against XY. XY was nine and a half years old when the mother began abusing her and the abuse continued for almost two years. The mother was sentenced to a total effective term of 9 years' imprisonment and was ordered to serve a non-parole period of 5 years' imprisonment before being eligible for release on parole.

23 GG was invited by the father to participate in sexual activity with XY. He committed a smaller number of offences than the applicant. Psychological testing of GG revealed that he had an IQ of 67, with a reading capacity at grade 2 level. The psychological report also indicated that he 'would be quite limited in his capacity to make sound judgment and appropriate assessment of situations in which he found himself'.[13] GG had himself been abused by the father (his uncle) for some two decades. His Honour considered that GG's intellectual disability required moderation of the principle of general deterrence and that his moral culpability was reduced by his own experience of sexual abuse.

24 The offences to which GG pleaded guilty and the sentences imposed on him were as follows:

25 Counts 1 and 2 were offences against children other than XY, which occurred during the 1980s when GG was quite young.[14] Counts 9, 10 (incest) and 11 (incest) were committed when GG aided and abetted the father to engage in acts of sexual penetration with XY. GG received a total effective sentence of 8 years and 10 months' imprisonment, with a non-parole period of 5 years and 6 months' imprisonment.

26 The Crown conceded that his Honour had erred by imposing a longer total effective sentence on the applicant than on the mother. In our view, that concession was appropriate. As we have said, the mother's offending against XY began when she was aged nine and a half years old and lasted for almost two years. By contrast, she was between 10 and 11 when the applicant became involved in her abuse and he committed the offences over about a year.

27 The mother was sentenced to three years' imprisonment on count 1, which involved her own acts of sexual abuse on XY, whereas the applicant received four years ' imprisonment for the four counts of aiding and abetting incest.[15] As we have said, the mother was convicted of counts 1, 2 and 4 which were representative counts. The incest offences committed by the applicant were not representative counts.

28 The applicant received only six months less than the mother for two of the counts of sexual penetration of a child under 16, even though these offences were committed at a time when XY was under the mother's care, supervision and authority. All of the offences committed by the mother involved gross breaches of trust.

29 Although the judge who sentenced the mother accepted that she had been sexually abused as a child, suffered from low self-esteem and was permanently psychologically damaged, he did not accept that she had committed the offences because the father threatened to harm or kill her (ie the mother) if she did not participate.

30 We do not consider that the imposition of a total effective sentence on the applicant which was two years and three months longer than total effective sentence imposed on the mother, can be justified on the basis that the mother voluntarily reported the offences to the police. We also consider that his Honour erred by imposing longer sentences on the applicant for aiding and abetting incest than the sentences imposed on the mother in relation to her own commission of the offence of incest.

31 XY's abuse by the mother was a fundamental betrayal of the responsibility owed by a parent to a child. The mother colluded in the father's actions, as well as abusing XY herself, for two years. XY was not only persistently and cruelly abused and exploited, but has lost her mother and father because of their offending and subsequent imprisonment.

32 Having regard to all of the above matters, we consider that the sentences imposed on the applicant were such as to give rise to a justifiable sense of grievance. By contrast, we consider that the disparity between the total effective sentence imposed on GG and the applicant was justifiable for the reasons given by his Honour. Because ground 2 is made out, the applicant must be re-sentenced. In these circumstances it is unnecessary to consider whether the sentences imposed on the applicant were manifestly excessive.

33 The nature of the offending, and the circumstances of the offender, have been described above. In re-sentencing the applicant it is also necessary to take account of the psychological/psychiatric reports of Dr Jager, Dr Sullivan and Professor Crowe.

34 Counsel for the applicant submitted that the evidence of Dr Sullivan and Professor Crowe was relevant to the applicant's moral culpability, and to the likelihood that he will re-offend. In addition, it was submitted that the principle of general deterrence should be sensibly moderated, because of the applicant's intellectual disability.[16]

35 The findings made by the trial judge were based on a psychiatric report prepared on 14 June 2007 by Dr Alan J Jager, which was tendered at the plea hearing. The report concluded that:

There is no significant history of substance abuse or psychiatric illness. At interview he displayed a normal emotional tone. His expressions of remorse were superficial. The history of disturbed conduct in adolescence and criminal behaviour at that time and since constitutes an Antisocial Personality Disorder. The repeated sexual offending against children, in the current case pre-pubescent, despite no admitted sexual fantasies in relation to children, constitutes an additional diagnosis of Paedophilia.

He was diagnosed with antisocial personality disorder. It is not clear that he satisfies diagnostic criteria for this disorder according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR). Even if he did not satisfy the mental diagnosis, given that the diagnostic criteria involve offending, the diagnosis is made in large proportions of those incarcerated. I am unclear how such a diagnosis would be of relevance to his sentence.

He was diagnosed with paedophilia. Once more, to my mind he does not meet the diagnostic criteria for paedophilia, as set out in DSM-IV-TR. The diagnosis is not made out simply by repeated offending against minors, but requires substantial sexual ideational preoccupation with minors, which is not clearly present. In [the applicant's] case, offences against minors are also mixed with a range of adult sexual relationships. He does not to my mind demonstrate a compelling sexual attraction to minors, but rather a mixture of poor judgment, cognitive deficits and limited assertiveness.

I should add that although deviant sexual arousal such as paedophilia is significantly associated with reoffending, the issue of controlling deviant arousal is always addressed in offender treatment, whether paedophilia is evident or not.

[The applicant] impresses as low functioning. He does not clearly have an intellectual disability, but has limited literacy and employment skills, and his language and demeanour suggest that he is of borderline intellect. I think this is relevant because (by his account) the offences of animal cruelty and the current conviction all occurred in concert, and the impression is that [the applicant] was not the instigator, but he engaged in all of these offences through a combination of poor judgment, gormlessness and stupidity.

[The applicant's] offences were appalling, but in light of your request that I review his psychiatric assessment for appeal, I hold the opinion that his apparent intellectual dullness may not have been appreciated at sentencing. I note that the sentencing comments reflected that [the mother and GG] had intellectual deficits, although these were not noted in the case of [the applicant]. The nature of the offending in concert suggests that all parties were grossly impaired in their appreciation of social and sexual norms, although should have appreciated that their actions were wrong. This may be understood, although not in any way condoned, by reference to the offenders' family backgrounds of abuse and intergenerational sex.

37 Professor Crowe was provided with, among other things, the reports of both Dr Jager and Dr Sullivan and administered a number of psychological tests to the applicant. On the basis of his testing, he concluded that:

The pattern of performances revealed by [the applicant] on this occasion indicate a man of 43 years and 10 months who presents at this point in time as performing consistently in the mildly intellectually disabled range in the present. He does demonstrate some aspects of performance in the normal range including his performance on tests of speed of processing. He performs in a similarly impoverished way on tests of memory functioning and demonstrates poor ability to be able to appropriately control his responses on tests of the frontal executive function, consistent with the notion of a disinhibition syndrome. The origin of these deficits seems to me to be developmental. I could identify no clear aspect of injury or disease in [the applicant's] history, which would account for these phenomena and as a consequence I assume that a longstanding pattern of borderline/intellectually disabled functioning would most likely account for the presentation in the present.

...

The pattern of performances revealed by [the applicant] on this occasion indicate a man of 43 years and 10 months who has been convicted of numerous acts of inappropriate sexual conduct who presents at this point in time as performing consistently in the mildly intellectually disabled pattern of intelligence in the present. He does have some strengths in so far as his performance on speed of processing is in the normal range. He demonstrates significant weakness in the area of memory functioning but consistent with his level of intellectual functioning and a poor ability to be able to control his responses as demonstrated on the frontal executive functions including the heightened level of error on the Verbal Fluency Test, poor ability to be able to control his responses on the Stroop Colour Word Test and poor ability to be able to monitor and benefit from feedback on the Wisconsin Card Sorting Test, 64 Card Version. [The applicant] endorses minimal levels of self reported depression, anxiety or stress.

38 Professor Crowe was also asked to 'assess the degree to which [the applicant] is neuropsychologically impaired and the likely impact that this would have on [the applicant's] participation in the relevant offending behaviour'. He was also informed that the purpose of the report was to support the argument that the applicant 'merely "went along" with the offending at the behest of the various co-accused'. He responded as follows:

[The applicant] would appear to my mind to have a longstanding intellectual disability and currently performs in the mildly intellectually disabled range. This would be consistent both with his trajectory with regard to his educational experience, as well as with his relatively undistinguished career as a baker's assistant for many years. [The applicant's] relative strength in the area of processing speed may give the illusion of him performing at a somewhat better level than would be expected just because he is capable of keeping information on track and processing it more quickly than would ordinarily be observed with someone with intellectual functioning of this level.

With regard to the implication of [the applicant's] current presentation to his offending behaviour, certainly [the applicant] is less rather than more likely to be the instigator of these kinds of heinous sexual exploits and given that he is someone who has poor control of his inhibition, would be someone who would quite easily be induced into illegal behaviour without the usual restraints associated with someone with intact frontal executive functions. This is not to gainsay the fact that [the applicant] seems to have become involved in a number of these types of situation over the years.

Thus, with regard to your suggestion that [the applicant] may have just gone along with the suggestions of others, I don't think this circumvents his guilt but nonetheless, it would indeed be the case that someone with [the applicant's] level of intelligence and his poor ability to be able to benefit from the usual restraints associated with appropriate levels of inhibition and the inability to weigh up the situation to ensure more appropriate behaviour would culminate in a situation in which it would be very difficult for him to delay immediate gratification in the context of the situation described.

39 In re-sentencing the applicant we must also give weight to the fact that he made full admissions when he was interviewed by the police, and also implicated GG in the offending. His admissions were of considerable significance because XY did not refer to him in her statement. Without the applicant's admissions there may have been insufficient evidence to charge him with these offences.[17] Weight must be given to the utilitarian value of his guilty plea as well as to the fact that it has relieved XY from the ordeal of having to relive her abuse by giving evidence at his trial.

40 His Honour did not make a clear finding as to whether the applicant was remorseful. However, the applicant's early admissions, his guilty plea and his attempt to have himself registered as a sexual offender are, in our view, evidence of remorse. Dr Jager considered that the applicant was at moderate risk of re-offending and would require extensive treatment to reduce that risk. That opinion was based on his view that [the applicant] was a paedophile, a diagnosis with which Dr Sullivan disagreed. Nevertheless Professor Crowe considered that he was at risk of engaging in illegal behaviour when led by others. That opinion, combined with the applicant's earlier convictions for indecent assault and sexual penetration, require some emphasis to be placed on specific deterrence.

41 For offences subsequent to count 2 the applicant must be re-sentenced as a serious sexual offender. In relation to those offences the Court is required by s 6D(a) of the Sentencing Act 1991 to 'regard the protection of the community from the offender as the principal purpose for which the sentence is imposed'. In addition s 6E of the Sentencing Act 1991, requires the terms of imprisonment imposed on counts 3 to 14 to be served cumulatively on each other unless the Court otherwise directs.

42 The offences committed by the applicant must be regarded as extremely serious. They are likely to have a grave effect on XY's psychological well-being for a very long time, if not for ever. On the other hand, the applicant's moral culpability is reduced to some extent by his low IQ, his own experience of sexual abuse and his vulnerability to the influence of others. The applicant's tendency to offend in company with others must be also taken into account in considering the protection of the community and his prospects of rehabilitation.

43 We note that his Honour grouped similar offences and imposed the same sentences and made the same orders for cumulation on offences of like nature. Although each separate offence added to the trauma experienced by XY,[18] we consider that the orders for cumulation,[19] treating ground 13 as the base sentence, should give some weight to the fact that some of the offences occurred as part of a single incident, whilst others occurred as stand-alone events. Having regard to all of the above matters we would re-sentence the applicant as follows.

44 This amounts to a total effective sentence of 9 years' imprisonment, the same sentence as that imposed on the mother, whose moral culpability was greater than that of the applicant, but whose voluntary disclosure to the police saved XY from further abuse. We would order that the applicant serve a minimum term of 6 years and 6 months' imprisonment. The applicant is sentenced as a serious sexual offender on counts 3 to 14.

45 The individual sentences we have imposed give weight to the applicant's intellectual disability and his guilty plea, as well as the other mitigating factors mentioned above. They also take account of the need to ensure appropriate comparability between the sentences imposed on the mother and on the applicant. Because of the large number of offences committed by the applicant it has been necessary to moderate the total effective sentence in order to reflect the principle of totality. We emphasise that neither the individual sentences nor the total effective sentences should be necessarily regarded as appropriate sentences for offences of this degree of gravity in other circumstances.

[1] Where the victim is under the care, supervision or authority of the offender, the maximum penalty is 15 years' imprisonment: see s 45 of the Crimes Act 1958.

[3] In the case of the father and GG some offences involved other victims; see [20] and [25] below.

[4] (Unreported, County Court of Victoria, Judge White, 26 June 2007) ('Reasons'), [4]. That finding was based on the sentencing remarks of the judge who sentenced the mother and father: [2006] VCC 1687.

[10] See for example R v Duy Duc Nguyen [2006] VSCA 184, [36] (Redlich JA).

[11] Originally the sole ground of appeal was that the sentence was manifestly excessive. An additional ground asserting that the sentence imposed on the father was such as to engender a justifiable sense of grievance in the applicant was subsequently added. Prior to the hearing of the appeal, the 'new evidence' ground was substituted.

[12] See R v Lowe [1984] HCA 46; (1984) 154 CLR 606, 623 (Dawson J).

[14] He was only 15 years old when he committed the 1981 offence.

[15] Although she received a higher sentence than the applicant on one other incest count, count 4.

[16] R v Verdins (2007) VR 269; R v McIntosh [2008] VSCA 242.

[17] R v Ellis (1986) 6 NSWLR 603; R v Ryan (2001) 206 CLR 267.

[18] Cf R v O'Rourke [1997] 1 VR 246, 252 (Winneke P, Brooking and Callaway JJA).

[19] As the applicant must be sentenced as serious sexual offender for counts 3 to 14, the presumption of cumulation applies, unless the Court otherwise directs. See s 6E of the Sentencing Act 1991. For reasons of comprehensibility we have expressed the sentences in terms of cumulation, rather than concurrence.