R v Hilton [2001] VSCA 134

5. The applicant, who is now 55 years old, was sentenced after pleading to three counts of sexual misconduct with a youth who was under his care, supervision or authority. Count 1 charged that the applicant did, between 1 November 1993 and 18 April 1994, commit an indecent assault on a 16 year old; count 2 that he did between 1 January 1994 and 18 April 1995, take part in an act of sexual penetration with a 16 or 17 year old (oral penetration); and count 3, that he did between 1 January 1994 and 18 April 1995, attempt to take part in an act of sexual penetration with a 16 or 17 year old (anal penetration). The three counts were representative of numerous similar offences. In that the offences occurred variously between 1 November 1993 and 18 April 1995, they occurred before the significant changes to the relevant sentencing regime which were made in 1997.

8. When pleading guilty the applicant admitted previous convictions. On 1 October 1968 he was convicted in the Court of General Sessions of committing an act of gross indecency with a male person and indecently assaulting a male person, for which he was sentenced and released on probation for two years. On 3 June 1974, he was convicted in the County Court of committing an act of gross indecency with a male person and indecently assaulting a male person under the age of 16; and for these offences he was sentenced and released upon entering into a bond to be of good behaviour for five years. On 1 October 1976, he was convicted in the County Court of indecently assaulting a male person under the age of 16, for which he was sentenced and released on a bond to be of good behaviour for three years.

11. The sentencing judge was told also of certain subsequent matters, eight charges of committing an indecent act with a child under 16, for which the applicant was sentenced to imprisonment for two years with a minimum of 15 months. That sentence was imposed by the Magistrates' Court at Warrnambool on 12 March 1999, so that when the applicant was sentenced in the County Court on 3 April 2000 that was a sentence he was still serving: he still had almost a year to serve.

14. The maximum sentence authorised by law for the three offences charged was, at the time of their commission, in the case of count 1 and count 2, three years' imprisonment and in the case of count 3, two years' imprisonment: Crimes Act 1958, ss.48, 49 and 321M and Sentencing Act 1991, s.109 before amendment in 1997. On 3 April, after a plea in mitigation on behalf of the applicant by his counsel, the applicant was sentenced on each of counts 1 and 2 to two years and six months' imprisonment and on count 3 to one year and six months' imprisonment. All sentences were ordered to be served cumulatively, each upon the other, making an effective head term of six-and-a-half years. That term was ordered to be wholly cumulative upon the sentence which the applicant was already undergoing, and the sentencing judge fixed a new minimum term of five years and five months from the day of sentencing, that is, 3 April 2000.

17. Before turning to the grounds upon which the applicant seeks leave to appeal against these sentences, I say something of the circumstances of the offending. Fortunately it is unnecessary to go into any great detail, for the details are referred to sufficiently in the judge's sentencing remarks. But briefly the victim was a youth who was born on 18 April 1977. In 1990 he had a very bad accident, suffering a serious head injury and some brain damage. As described by his father, it was six or eight months after the accident before he could go to school again: he was small for his age and the accident set him back physically. He lost a lot of coordination skills, along with his strength, and when he was 15 to 17 (that is, at the time of these offences) he appeared to be much younger physically and also mentally. He was in need of constant supervision and care.

20. This was known to the applicant, who lived in the same street as did his victim, whom he offered to help by giving him some manual work in the shop he was running. As the judge said when sentencing, having first obtained the consent of his parents to the boy's assisting him in the shop, the applicant "set out to seduce him and ... succeeded". Suffice it to add this then from the sentencing remarks (which were addressed to the applicant):

"Your abuse of [the victim] was systematic and prolonged. Sexual contact took place between you, in your shop, your car, on an open golf course and elsewhere. The ultimate effect of your conduct upon him must be a matter of conjecture, but his victim impact statement makes disquieting reading. You are a repeat offender. You have three times been given an opportunity to mend your ways. You deliberately targeted a particularly vulnerable adolescent and tricked his parents into letting him into your control. Having obtained their trust, you cruelly and systematically abused him."

24. The applicant now seeks leave to appeal essentially upon the basis that the sentences imposed were manifestly excessive. As described in the notice of application for leave to appeal, the complaint was that the term of imprisonment of six-and-a-half years, when made wholly cumulative upon the sentence already being served, was manifestly excessive and "against the evidence". It was claimed too that the judge did not "give sufficient weight to the personal circumstances of the applicant", or to the plea of guilty or to "evidence of rehabilitation", and that the judge gave undue weight to the applicant's prior convictions.

27. On 20 June 2000, the Registrar granted leave to the applicant to add to the existing grounds of appeal. Although eight in number, the first is to some extent repetitive and others are somewhat vague. Ground 1 is that the sentences imposed were manifestly excessive and (again) "against the evidence", thereby expanding, presumably on the original first ground. Grounds 2, 3 and 4 are that the judge either ignored or "failed to give careful consideration to" the principles of proportionality and totality. Ground 5 is no longer argued. Ground 6 asserts that the judge failed to accord sufficient weight to the period of time between the date of the applicant's last prior conviction and the date of the offences. Grounds 7 and 8 refer generally to the provisions of the Sentencing Act and the evidence and submissions put on the plea, but they are so vague as to lack any significant content.

30. As already indicated, all these various grounds come down in the end to this: that the sentences imposed were manifestly excessive; for although complaint is made in the grounds about the weight given to sundry specific factors, it cannot be shown that the sentencing judge failed to take them into account and the weight which his Honour gave them, whether too little or too much, is a matter of inference from the sentences actually imposed. They are therefore but particulars of the ground of manifest excess. Certainly the judge did not fail to take into account the applicant's plea of guilty and the applicant's loss of his own wife and children (with the exception of one daughter who continues to support him) and the loss of the business that he had for many years been running. This morning Mr Tehan stressed to us the applicant's sorrow, shame and remorse and what was said to be his commitment to counselling, but this was put before the judge on the plea, and so those factors too were brought to account.

33. Nor, I would add, can it be demonstrated that the judge, an experienced judge in this area, paid no regard at all to the principle of proportionality or to the principle of totality; the complaint is surely that the sentences are such as not properly to reflect the application of those principles. As for the period of time between the date of the applicant's last prior conviction (that is, conviction for previous offending, in 1976) and the date of the offences, this was relied upon expressly on the plea as some evidence of rehabilitation and it was surely brought to account. The difficulty for the applicant is that obviously it was open to this comment made by the Judge of Appeal who dismissed the application on 21 June 2000:

"It has been pointed out by counsel on his behalf in a careful and able argument that the last of those convictions was now many years ago, indicating that the applicant had made a successful, or at least relatively successful, attempt at reformation. On the other hand the attempt turned out as demonstrated by these convictions not to be effective in the long run. In effect he was able to reform himself but only for a period."

37. Subject to one possibility I shall refer to later in connection with the provisions of the Sentencing Act relating to serious sexual offenders, in my opinion the applicant has not established any specific error in his sentencing. As for manifest excess, that ground does not admit of much argument, for a sentence either is or is not manifestly excessive. I have read what was put on behalf of the applicant in the course of the plea in mitigation and have read more than once the sentencing remarks of the judge. Mr Tehan, in his careful argument pointed to all that could be put in favour of the applicant, but, as explained to the applicant when his application was dismissed in June 2000, the question is not whether we would have imposed the same sentences, but whether we consider that the sentencing judge in some way went beyond that range of sentences which was properly open to him in the exercise of his sentencing discretion, and in this case I do not think that that was so. It may be that the sentences were stern, but this was a grave breach of trust and the victim was particularly vulnerable. I agree, with respect, with what was said in that regard by both the sentencing judge and the Judge of Appeal who dismissed this application last year.

40. At one stage this morning, Mr. Tehan began an argument that the minimum term of 5 years and 5 months was inexplicably long when compared to the head sentence - the total effective sentence - of 6½ years; but when it was pointed out that that overlooked that that sentence was ordered to be served cumulatively on the sentence already being served and that the period of 5 years and 5 months was the new minimum term fixed in respect of both, the argument was not pursued.

43. It is appropriate, however, to mention more particularly some of the points that were developed by Mr. Tehan in argument. First, Mr. Tehan stressed that in sentencing on each of the three counts the judge imposed a term of imprisonment which was a high proportion of the maximum penalty fixed by law. That is of course true, as a matter of fact, but it need not betoken error. Given the circumstances of the offending it is scarcely surprising, notwithstanding what could be put in mitigation. The maxima were then much lower than they are now: since 1997 the maximum penalty for the offence described in count 1 has been 10 years' imprisonment and for that in count 2, as also for that in count 3, five years'. Of course the judge was bound to sentence having regard to the maxima current at the time of the offending and there is no suggestion that his Honour did otherwise. But these were bad cases of the particular offences involved, given, for instance, the particular vulnerability of the victim, the persistence in the offending as indicated by the fact that the counts were representative, and the abuse of trust involved. Mr Tehan contended that the offences in question were not the worst of their kind, but that argument must be properly understood: see, for example, what was said in Mallender[1]. The qualification made there is only the more important when the maximum fixed at the time for a given offence can properly be seen as low, as I think was the case here; for, as Charles, J.A. said in argument, in such cases where the maximum is relatively low, there will often be a greater range of cases that call for its application in sentencing, or something close to it. What is important is that, after taking into account all that can be put in mitigation, the sentence imposed should be proportionate to the offending and the maximum fixed by law is but one indication of the gravity of the crime. In short, I see no error of the kind urged by Mr Tehan by reference to the maxima fixed for these counts.

46. Then there was the question whether, at any stage of the sentencing that occurred on 3 April 2000, the applicant was to be treated as a serious sexual offender. In the course of the plea, this was a question raised by the prosecutor and by the judge: it was then agreed that, whatever else might be said, by the time the applicant was sentenced on count 3, he was to be treated as a serious sexual offender. It is now submitted by Mr Tehan (who was not counsel below), and conceded by the Crown, that that was a mistake: the definition of "sexual offence" was such as not to attract the consequence just mentioned. None the less, I think that that is all that need be said because, in the result, the mistake led to no error in the sentencing. The principle set out in s.6D(a) is, as has been said, no more than the common law, and his Honour said expressly in the course of his sentencing remarks that he saw no need to rely upon any other of the special provisions relating to the sentencing of serious sexual offenders. After referring to the requirement that the court was "to regard the protection of the community ... as the principal purpose of" the relevant sentencing, the judge said that, as he saw it, there was "ample latitude for the attainment of that object within the penalties prescribed by law for [the applicant's] offence and ordinary sentencing principles". Plainly the special provisions in question had no direct impact on the sentences passed.

49. The other point emphasised by Mr Tehan in argument was this: that, unusually, in this case the sentences imposed on all three counts were made wholly cumulative upon each other and also upon the sentence already being served. In the end, as I followed him, Mr Tehan did not press this last; certainly it cannot be surprising that the sentences imposed for this offending were made cumulative upon the sentences earlier imposed for other offending. As for the sentences imposed on counts 1, 2 and 3, it must be remembered that these were all representative counts, extending over a relatively long period of time. As Miss Pullen pointed out, the offences were in fact very different, evidencing a steady progression from masturbation to oral penetration and ultimately to attempting anal penetration. In the circumstances of the offending, I do not find any error in the judge's making the orders he did for cumulation. Questions of concurrency or cumulation are matters, it has been said, for "sound discretionary judgment" and each case must depend upon its own facts. As Vincent, J.A. said in the course of argument, the question is whether the real character of the offending in its various forms is sufficiently reflected in the penalties imposed unless cumulation is ordered.

52. In the end, the question must be whether the sentencing discretion miscarried, and in my opinion that is not established in this case. As I have said already, the sentences may be stern, but, whether taken separately or together, and whether attention is focused upon the individual sentences imposed or the orders for cumulation, as I see it there was no error in the exercise of the sentencing discretion.

[1] (1986) 23 A.Crim.R. 179.