R v I D K [2006] VSCA 22

1 I invite Chernov, J.A. to state his reasons for judgment first.

2 The appellant in this case pleaded guilty in the County Court to one representative count of incest committed on his eight-year-old daughter between 1 January and 29 November 1999. On 30 June 2005, a judge of the County Court sentenced the appellant for that offence to four-and-a-half years' imprisonment and ordered that he serve a non-parole period of two-and-a-half years. Her Honour also declared the appellant to be a registrable offender under the relevant provisions of the Sex Offender Registration Act 2004. The maximum custodial penalty for incest is 25 years' imprisonment.

3 On 11 November 2005, a judge of this Court granted the appellant leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958. There are two grounds of appeal, a third ground having been abandoned, but before dealing with them it is necessary to refer briefly to the more relevant circumstances relating to the offending, the full particulars of which are set out in the sentencing remarks of the learned sentencing judge and the Crown summary.

4 The offending conduct occurred on three separate occasions in 1999, when the complainant and her brother were staying at the appellant's home during their fortnightly access visits. The appellant and his wife had separated in April 1994 and he had right of access to their children on a fortnightly basis. The Crown case was that the appellant committed the representative offence upon his daughter during these visits, by digitally penetrating her vagina on three occasions between 1 January and 29 November 1999. On the first occasion the appellant told the complainant to undress and lie in his bed, but she refused. When the appellant forcefully repeated his request, she complied. After she lay down beside him, the appellant turned off the bedside lamp and rubbed his penis up and down the outside of the complainant's thighs for about five to ten minutes. He then inserted his finger into her vagina, although penetrating no further than the outer labia. Notwithstanding that the complainant was saying "no", he continued with that conduct for some time. The appellant then fell asleep and the complainant got up and went to sleep in another room.

5 On the second occasion, the appellant again forcefully told his daughter to get undressed and get into his bed. She complied. She was then told by the appellant to put her mouth over his penis, but she refused. The complainant got up and went to sleep in another room, but the appellant woke her and told her to get back into his bed. She complied and lay beside him for five or ten minutes. The appellant then inserted his finger into her vagina, again only penetrating the outer labia, whilst the complainant was saying "no". After this episode, he fell asleep and the complainant returned to her bed.

6 On the third occasion, the appellant again told the complainant to get undressed and get into his bed. She complied. He then told her to put her mouth over his penis, but again she refused and went to her bed. The appellant, however, effectively ordered her back to his bed. They lay there for about five minutes, and the appellant then placed his fingers into her vagina to the extent referred to earlier, and continued to do so notwithstanding her protestations. When the appellant finished, he fell asleep and the complainant returned to her bed.

7 After these incidents, the appellant continued to exercise his right of access to his children, until March 2004, when the matter was reported to the police and he was apprehended. For a period prior to March 2004 the appellant's access to his children was becoming progressively more sporadic. I note that it was not suggested that he had acted improperly towards the complainant outside the period referred to.

8 The appellant was interviewed by the police on 19 April 2004 and largely admitted the offending conduct. He said that he went to bed with the complainant in order to cuddle her, but "got carried away". He said that he was "probably just constantly drinking too much at the time and just getting stressed out". Her Honour accepted that for some time leading up to the offence the appellant had been a heavy drinker and a frequent user of cannabis, and that at the time of the offending he was intoxicated.

9 As to the appellant's personal circumstances, they are sufficiently set out in her Honour's sentencing remarks and there is no need to re-state them here. Suffice it to say that his upbringing and work experience in unskilled jobs were unremarkable and that, as I have mentioned, his marriage deteriorated, and this occurred because of his alcohol abuse and consumption of cannabis. It ended in 1994, as I have said. In 1998 he attempted a reconciliation with his ex-wife, but this failed and the appellant became depressed. The report of Bernard Healey, a psychologist, dated 31 March 2005, which was before her Honour, makes it clear that at the time of the offending the appellant suffered from a range of related psychological problems, including depression, anxiety and withdrawal. Moreover, the medical evidence tendered during the hearing of the plea in mitigation made it apparent that the appellant also suffered from a painful back condition.

10 Although the appellant has a criminal history consisting of six court appearances from 10 August 1982 to December 1996, it relates essentially to drug and dishonesty offences and burglary. As her Honour pointed out, the appellant has no history of sexual offences.

11 It is clear enough that, on the Crown case, the appellant rubbed his penis against the complainant's thigh on only one of the three occasions of offending. Her Honour, however, erroneously said in her sentencing remarks that the appellant had engaged in that behaviour on each occasion before digitally penetrating the complainant's vagina. This error forms the subject of the complaint under ground 1. It was said by Mr Boyce for the appellant that the context of the offending was confined and that, therefore, this factual error was material and infected the sentencing disposition. I consider, however, that in the circumstances the mistake was not material to her Honour's disposition. The question whether an error by the sentencing judge as to the circumstances of the offending is material depends primarily on whether, had the judge known of the true situation, it is reasonable to suppose that a lower sentence would, or might, have been imposed.[1] I consider that there is no realistic prospect of that being the case here. It must be borne in mind that the count to which the appellant pleaded guilty was a representative count, which entitled her Honour, when sentencing him, to have regard to all the circumstances in which the representative offence occurred, and the critical circumstances here, including the two further acts of digital penetration and the appellant's abuse of trust and parental authority by ordering his daughter into his bed in order to satisfy his sexual gratification, notwithstanding her protestations. In the circumstances, I would reject ground 1.

12 It was next argued, under cover of ground 3, that the head sentence and the non-parole period are manifestly excessive. In support of this submission, Mr Boyce pointed to the numerous mitigatory factors that were referred to by her Honour in the sentencing remarks. Counsel argued that, in the circumstances, the sentence was outside the relevant range.

13 As this Court has said on numerous occasions, whether the impugned sentence is manifestly excessive does not admit of much elaboration. Once the relevant circumstances are ascertained, then the sentence upon its face appears manifestly excessive or it does not. The task of the sentencing judge is a difficult one, given the obligation to impose a just sentence that reflects the seriousness of the offence, the gravity of the offending conduct, the applicable sentencing principles and the personal and other mitigating circumstances of the offender. Importantly, the question is not whether this Court would have imposed the sentence that was imposed, but whether it is within the range of sentences properly available to the sentencing judge.

14 It is plain enough that the learned sentencing judge in this case carefully analysed the matters to which I have just referred in her well reasoned sentencing remarks and, in that context, her Honour listed a considerable number of mitigating factors that operated in this case, which included the following. First, her Honour considered that the criminality of the appellant's offending was at the lower end of the relevant scale, given that it took place over a relatively limited period of time and was not repeated. Nor was it suggested that the appellant had previously engaged in any offending conduct, notwithstanding having had access to his children and an opportunity to pursue such offending. Her Honour also pointed out that there were no allegations that the offending conduct was accompanied by violence. Next, the appellant admitted the offending conduct as early as the police interview, pleaded guilty and demonstrated remorse. It is true that the appellant pleaded guilty only after the committal proceeding, and that the complainant was cross-examined at it, but, as Mr Boyce pointed out, given the vagueness of the allegations in the VATE tape as to the extent of the penetration, the cross-examination of the complainant was relevant to establish the parameters of the appellant's criminality and mitigating factors. Importantly, it was said, the complainant's credit was not put in issue. Be that as it may, I would only observe that the experience of being so cross-examined would have been a traumatic one for the complainant. A further factor in the appellant's favour was the learned sentencing judge's optimistic view of the appellant's prospect of eventual rehabilitation and the recognition that his loss of contact with his children has caused him a great deal of anguish. It is also relevant to bear in mind the appellant's personal circumstances, including his painful back condition, which is likely to render prison more difficult for him.

15 But the aggravating aspects of this offence are very considerable. This was a representative count and, therefore, the offence must be considered in the context as a whole. One of the matters that stands out is that, not only did the appellant breach his parental obligation of keeping his young daughter safe from harm, but he blatantly abused his parental authority and trust by effectively compelling her to go to his bed so that he could satisfy his sexual appetite. He may have been under the influence of alcohol or cannabis at the time, but he must have known that what he was doing was wrong. Nevertheless, he deliberately compelled his daughter to become an unwilling participant in his sexual fantasies, very much to her detriment, as her Honour has noted. On two occasions, as I have said, he brought her back to his bed after she refused to perform oral sex on him, and on each occasion he subjected her to what must have been a traumatic and frightening experience.

16 I consider that the offending conduct was very serious. It was repulsive and unnatural and had detrimental consequences for the complainant, as I have noted. Moreover, as her Honour said, incest is a very serious offence, as is reflected in the maximum custodial sentence of 25 years prescribed by Parliament in relation to it. In addition, as the learned sentencing judge pointed out, the sentencing principles of specific and general deterrence and denunciation of the appellant's conduct by the court were of considerable importance in the sentencing disposition.

17 In the circumstances, I consider that, although the impugned sentence could be properly described as stern, it is not outside the relevant range. I would dismiss the appeal.

20 The order of the Court is:

The appeal against sentence is dismissed.

[1] R. v. Fox [2003] VSCA 138 at [4]- [5] per Charles and at [18] per Chernov, JJ.A.