R v Hunter [2006] VSCA 9

6 The appellant, Neville Thomas Hunter, was born on 5 October 1946.

7 On 22 November 2004, at the County Court at Ballarat, a trial presentment was filed before the Judge, alleging against the appellant seven counts of buggery, eighteen counts of indecently assaulting a male person under the age of 16 years, one count of producing child pornography and one count of possessing child pornography - a total of twenty-seven counts. On 9 May 2005, at the County Court at Ballarat, the appellant was arraigned before the Judge and pleaded not guilty to all counts. There were then a number of short hearings and adjournments and negotiations also ensued as to representative counts to which the appellant would plead guilty.

8 On 12 May 2005, a "plea presentment" was filed over, with leave of her Honour, alleging six counts. The appellant was arraigned and pleaded guilty to these counts being:

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one representative count of buggery, occurring between 18 November 1979 and 30 April 1980 (count 2);

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four representative counts of indecently assaulting a male under the age of 16 years, also occurring between 18 November 1979 and 30 April 1980 (counts 1, 3, 4 and 5);

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one count of possessing child pornography, on 16 May 2001 (count 6).

9 The relevant maximum penalty for buggery is 15 years imprisonment, for indecently assaulting a male person under the age of 16 years is 5 years imprisonment and for possessing child pornography is 5 years imprisonment. The appellant had no prior convictions.

10 The prosecutor opened the matter (see later below) and tendered a number of exhibits including a victim impact statement. Her Honour then commenced hearing a plea in mitigation made on behalf of the appellant during which five witnesses gave evidence and nine letters from various persons were tendered. Her Honour indicated that she proposed to order that the appellant be assessed for the purposes of a psychiatric report and the prosecutor made submissions in reply to the plea in mitigation. The plea continued on 13 May 2005 and on 20 May 2005, and on the latter date a psychiatric report was tendered. The matter was adjourned for sentence on 24 May 2005.

11 On 24 May 2005 her Honour delivered comprehensive sentencing remarks which, save for the single ground of appeal, are not the subject of criticism and need not be recapitulated. Her Honour then sentenced the appellant as follows:

12 Accordingly, there was a total effective sentence of 6 years imprisonment and her Honour fixed a non-parole period of 4 and a half years imprisonment.

13 By notice dated 30 May 2005 the appellant sought leave to appeal against his sentence on the grounds contained therein. On 21 October 2005, pursuant to section 582 of the Crimes Act 1958, a Judge of this Court granted the appellant's application for leave to appeal against his sentence. By a full statement of grounds dated 18 November 2005, the sole ground relied upon by the appellant is stated as follows:

The learned sentencing judge erred in the manner of her taking into account the representative nature of the offences founding counts 1 - 5 inclusive.

In particular her Honour stated during her sentence that:

a) "the sample counts are reflective of the total criminality disclosed in the materials before me"

b) "the sentencing judge is entitled to deal with the whole matter on the basis that the offence, in fact was repeated more than once. "

The five representative counts

14 The surrounding circumstances or context of the charges were set out in a document headed "Summary of Prosecution Opening" dated 22 November 2004 that was made available to the sentencing Judge. The circumstances relevant to the representative counts occurred during the period from November 1979 to November 1981 ("the relevant period"). The prosecutor outlined the representative counts to the Judge in essence as follows.

15 The appellant was about 32 years of age at the time of the commission of these offences and resided in Ballarat.

16 When the offences commenced the victim, "V", who was born in November 1965, was 14 years old and resided with his parents in Ballarat. V first met the appellant in November 1979. He had been given a football for his birthday. He had a dispute with his parents in relation to the kicking of the football and he took the football to a local park. He was walking along one of the back paths in the park when the appellant parked his car in front of V, got out of the car and asked V what time it was. V replied that he did not know the time as he did not have a watch. The appellant then asked him if he was OK. The appellant told V that he was a school teacher (as was the fact) and he understood kids and their problems. He offered to listen to V and try and help him.

17 The appellant invited V to come to his home where they could talk. V reluctantly agreed and got into the appellant's car and the pair then drove to the appellant's house. They entered the house and went into the lounge room. The appellant gave V a drink and they sat in the lounge for a period of time. Eventually the appellant asked V if he wanted to watch a movie. There was no television in the lounge and the appellant told V that it was in the bedroom. They both went into the bedroom to watch the television. The appellant told V to hop on the bed and he then left the room. He returned a short time later and turned on the video and shut the blinds. After the video started, the appellant gave V a small brown bottle and told him how to sniff it by blocking one nostril and sniffing it with the other nostril. V complied and the appellant then sniffed the bottle himself. V felt totally disoriented and relaxed after sniffing from the bottle.

18 The video depicted two men having sex with each other. The appellant then placed his arms around V and began to caress his hair, telling him not to worry about anything. After a short period of time, the appellant got off the bed and removed his clothes. The appellant then got back onto the bed, began to rub V in the crotch area, placed his hands on V's chest and nipples. He told V to unzip his pants and take off his shirt before he got onto his knees and removed V's pants and underwear. The appellant then got behind V and told him to have a few more, "good sniffs", from the brown bottle and got behind V and began to rub V's anus and groin.

19 The appellant continued to play with V's anus and again instructed him to sniff the contents of the brown bottle. V then found something cold and wet on his anus and the appellant inserted his fingers into V's anus. That was Count 1.

20 The appellant then moved close to V and he could feel the appellant's erect penis against his anus. The appellant rubbed his penis against V's anus before he penetrated V's anus with his penis. This caused pain and V jerked forward and the accused's penis came out of V's anus. The accused told V to have some more sniffs from the brown bottle and he again sniffed the contents of the bottle himself. He then lay beside V and told him that he was sorry and that he would be more gentle this time. He then placed his penis into V's anus and began to thrust it in and out. He moved slowly at first and later became faster; eventually, ejaculating into V's anus. That was Count 2.

21 As he was penetrating V's anus and thrusting his penis in and out the appellant reached around and grabbed V's penis and began to masturbate V and that was Count 3.

22 V then went to the toilet. He noticed white stuff in the bowl. When he wiped his bottom he noticed that there was blood on the toilet paper. He returned to the bedroom and the appellant turned off the television and gave him a towel and instructed him to have a shower. After the shower the appellant then took V back to the park. He told V that if he ever needed to talk, or anything, that he, the appellant, would be down at the park most weekends. He told V that they did not have to have sex and could just talk if that was what V wanted. The appellant then drove away.

23 V did not see the appellant until an occasion a number of weeks later. He rode his bicycle through the park, looking to see if the appellant was still attending the park. He saw the appellant parked in his car under some trees at the rear of the park. V rode over to the appellant and spoke to him through the car window. The appellant asked V to get into the car so that they could continue talking. The appellant asked him if he had told anyone about the first time and V told the appellant that he had not. After they had been talking for a while the appellant moved towards him, put his arm on V's shoulder and put his other hand on V's groin, rubbing his penis. He attempted to kiss V who moved away, indicating that he did not want to be kissed. The appellant then told V to slide his pants off and V complied. The appellant then began to masturbate V's penis with his hand, but after a short period of time the appellant placed his mouth over V's penis and sucked on V's penis until V ejaculated into the appellant's mouth and that was Count 4 (at that time, indecent assault).

24 After V ejaculated the appellant pulled up V's pants and told him he had to go, and he then gave him a sum of money. The appellant told V that if he ever wanted money, or wanted someone to talk to, he would be in the park on the weekends. He then wrote his phone number on a piece of paper and gave it to V so that he could call if he wished. V then got out of the car and rode his bicycle home. The prosecutor told the Judge that counts one to four were representative counts, representative of a course of conduct that occurred over the relevant period. The appellant had sex with V at the appellant's house on a number of occasions. It generally began with oral sex in a chair. The appellant would then instruct V to lay on his stomach on the floor and he would place a lubricant on V's anus before inserting his fingers. The appellant would then insert his penis and move it in and out until he ejaculated. On occasions the appellant would give V money when he had sex with him.

25 On one occasion when the appellant was having sex with V on a doona in his lounge room the appellant inserted a very large dildo into V's anus. It was about 18 inches long, 3 inches thick, and was in fact a battery operated vibrator. The appellant placed lubricant on V's anus and gradually inserted the object into V's anus. It was so large that it caused V extreme pain. That was Count 5.

26 V told the appellant that it hurt and he was crying while the appellant inserted the object into V's anus. The appellant then removed the object and went on to insert his penis into V's anus and moved it in and out until he ejaculated. After the incident, the appellant returned V to the park. V suffered pain and found it difficult to evacuate his bowels for about two or three weeks after this incident. Count 5 was also a representative count. The prosecutor told the sentencing Judge that it was representative of a course of conduct that occurred over the relevant period, that included a variety of sex toys or aids.

27 On 16 May 2001 at about 5.30 in the afternoon police attended at the appellant's home at and conducted a search of the premises.

28 Various items were seized including a number of computer disks that were found to contain a large number of pornographic images. Approximately 70 per cent of the images depicted persons who appeared to be under 16 years of age engaged in sexual activity.

29 The possession of the computer disks and what they contained constituted Count 6, the count of possession of child pornography.

30 The appellant was arrested on 16 May 2001 and participated in a recorded interview with police on the same day. The appellant gave "no comment" responses to all allegations put to him, after obtaining legal advice.

Appellant's submissions

31 Mr Meredith who appeared as counsel for the appellant accepted that the correct approach to sentencing on representative counts was that outlined by Batt, J.A. in R. v. S.B.L.[3] as follows:

"Five of the seven counts were said by the prosecutor at the commencement of the plea hearing (after the respondent had pleaded guilty to all counts) to be representative counts, and that was accepted by the defence. The better view -- and a view not disputed by counsel for the respondent before this court -- appears to be that the fact that a count is agreed to be a representative, specimen or sample count is an aggravating circumstance: R. v Wright (unreported, Court of Criminal Appeal, 13 May 1974) at 9; R. v Godfrey (1993) 69 A. Crim. R. 318 at 322, which was approved by Allen J. (with whom Handley J.A. agreed) in the New South Wales Court of Criminal Appeal in R. v Holyoak (1995) 82 A. Crim. R. 502 at 511; and R. v Kidd [1997] EWCA Crim 1773; [1998] 1 W.L.R. 604 (for the reference to which I am grateful to Ormiston J.A.), in which at 607 and 608 the Court of Appeal through the Lord Chief Justice insisted that the other offences, if not proved by verdict, must be admitted for them to be taken into account in sentencing. It is true that Wright antedates the decisions of the High Court in R. v De Simoni [1981] HCA 31; (1981) 147 C.L.R. 383 and Kingswell v R. [1985] HCA 72; (1985) 159 C.L.R. 264 at 277-81, but the view which I have expressed is not, I consider, inconsistent with those decisions, for with agreed representative counts there is a consensual element. If, as I think, Wright is not inconsistent with De Simoni or Kingswell, this court should not decline to follow Wright.

Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone. The evidence of the effect of the respondent's conduct upon the victims in this case is illuminating and extremely disquieting: besides the traumatic effect of the conduct upon them, it has confused them as to the boundaries of their bodies and as to questions of decency and propriety."

32 Mr Meredith's submission concentrated on the passage contained in the Judge's sentencing remarks expressed as follows:

"You are to be sentenced, of course, only in relation to the counts to which you have pleaded guilty before me and the relevance of the uncharged acts and the context in which those offences were committed have been discussed during the course of your plea. Counts 1 to 5 are representative, or sample, counts which refer to a repeated course of conduct over a period of time and I proceed to sentence you on the basis that there is agreement between the parties that the sample counts are representative of the total criminality disclosed in the materials properly before me. It is clear that I may regard a sample count as indicative of a repeated course of conduct and there are cases where the prosecution puts forward a count as a sample count and in those cases it is well understood that if that course is taken and the defence are notified, the sentencing judge is entitled to deal with the whole matter on the basis that the offence, in fact, was repeated more than once, or that there were other [offences]. Of course, a sample count practice does not increase the maximum sentence to which the offender is liable, nor does it permit a sentence to be imposed which is disproportionate to the offence or offences charged. The sentence for a representative count is to reflect the totality of the criminal conduct over the period presented.

The learned prosecutor, Mr Cordy, referred the court to and relied upon the principles enunciated by the Victorian Court of Appeal, in the case of R v SBL [1998] VSCA 144; (1999) 1 VR 706 where consideration was given to the practice of including representative counts on the presentment. I apply those principles to the circumstances of this case. With agreed representative or sample counts when other offences of the same kind are admitted for the purpose of the plea, the sentencing judge is entitled to have regard to the whole picture presented by the offender's conduct in determining the sentence appropriate to be passed upon the counts to which the offender pleads guilty. This practice does not contravene the rule against taking into account the commission of other offences as constituting circumstances of aggravation."

33 Mr Meredith submitted that her Honour's references in the above quoted passage to "total criminality", to "the whole matter" and to "the totality of the criminal conduct" were indicative of error and showed that her Honour had deviated from the proper approach by inflating the sentence imposed on the appellant by having regard to the totality of his offending rather than simply placing the representative counts in their context. Mr Meredith said that, although her Honour had stated the relevant principle correctly, those phrases showed that the Judge had departed from the correct principle in relation to representative counts.

Reasons

34 It is clear, as Mr Meredith conceded, that the Judge correctly stated the accepted practice in relation to representative counts. At the beginning of the passage quoted above, the Judge emphasised that the appellant was to be sentenced only in relation to the counts to which he had pleaded guilty and, in effect, that the uncharged acts were relevant only to the context in which those offences were committed. Later, in the same passage, the Judge reiterated that the practice of sample counts did not permit a sentence to be imposed which was disproportionate to the offence or offences charged. Finally her Honour referred to R. v. S.B.L. and concluded, in the passage quoted, by stating that the sentencing Judge was entitled to have regard to the whole picture presented by the offender's conduct in determining the sentence appropriate to be passed upon the representative counts.

35 In my opinion the references to "total criminality", to "the whole matter" and to "the totality of the criminal conduct" when read in the context of the whole of the passage quoted are not indicative of error, even if inaptly expressed. The passage read as a whole demonstrates that the Judge did not misunderstand the correct approach to be taken in relation to representative counts.

36 Indeed, as Ms Cannon of counsel on behalf of the Crown submitted, the length of the sentence in fact imposed by the Judge supports the conclusion that she had not fallen into error. So, even if, contrary to my conclusion, the Judge were in error and the sentencing discretion were re-opened, I would not have been disposed to impose a different total effective sentence or a different non-parole period. In reaching that view I have had regard to all of the usual sentencing considerations together with the following matters:

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the serious nature of the counts;

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the age disparity between the appellant and V at the commencement of the offending;

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the vulnerability and immaturity of V at the commencement of the offending and the predatory nature of the initial contact;

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all of the circumstances surrounding the representative counts including the repetitive conduct and the duration thereof; and

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the effect of the offences on V's life and psychological state;

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the possession in 2001 of child pornography.

37 In so concluding I have also had regard to the considerations mentioned by Mr Meredith including the matters of delay, the plea of guilty, and the strong character evidence adduced on behalf of the appellant.

38 For those reasons, I would dismiss the appeal.

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[1] [1991] 1 V.R. 706 at 725-726.

[2] See R. v. Jones [2004] VSCA 68 at [13].

[3] [1998] VSCA 144; [1999] 1 V.R. 706, 725-6.