R v Iles [2009] VSCA 197

1 I will ask Lasry AJA to deliver the first judgment in this matter.

2 On 15 October 2007, the appellant pleaded guilty in the County Court to one count of indecent assault (Count 1), four counts of sexual penetration of a child under the age of ten (Counts 2, 3, 4 and 5), contrary to ss 44(1) and 47(1) of the Crimes Act 1958 (Crimes Act) respectively.

3 On 18 October 2007, the appellant was sentenced to two years' imprisonment on Count 1 and three years' imprisonment on each of Counts 2, 4 and 5. On Count 3, which was the count of sexual penetration of a child under the age of ten years, he was sentenced to four years' imprisonment. Count 3 was the base sentence and the sentencing judge directed that one year of the sentence imposed on each of Counts 2, 4 and 5 be served cumulatively upon each other and upon the sentence imposed on Count 3, resulting in a total effective sentence of seven years' imprisonment. The sentencing judge ordered that four years of imprisonment be served before the appellant was eligible to apply for parole. It seems likely that in relation to all counts the appellant was erroneously sentenced as a serious sexual offender rather than just on Counts 3, 4 and 5. His Honour noted that, although the prisoner is a serious sexual offender, it was not necessary to pass a disproportionate sentence. I will return briefly to this matter shortly.

4 Leave to appeal against the sentence was granted to the appellant on 30 January 2009.

5 Four grounds of appeal against the sentence were argued before us, the first three of which appeared in the original Notice of Appeal. They were:

1. The exercise of the sentencing discretion miscarried because in considering whether a suspended sentence could be imposed the learned sentencing judge applied the wrong test of what amounted to exceptional circumstances.
2. The learned sentencing judge erred in not according special weight to the appellant's age as a mitigating factor.
3. In all the circumstances the sentence is manifestly excessive.

On the hearing of this appeal, we granted leave to the appellant to add a fourth ground of appeal, which was as follows:

1. The learned sentencing judge erred in sentencing the appellant as a serious sexual offender in respect to all counts on the presentment.

6 These offences occurred between December 1984 and December 1985, when the appellant was 60 years of age. At the time of the commission of the offences the complainant was aged between eight and nine years. The appellant was friendly with the complainant's father and the appellant would regularly socialise with him at a hotel in Prahran. The friendship developed to the extent that the appellant regularly took the complainant and her siblings to a caravan that he had at the 'Ponderosa' Caravan Park in Dromana on weekends and school holidays.

7 The presentment reflected offences committed on three separate occasions in 1984 and 1985. The first of those occasions was the basis for Count 1. At Christmas in 1984 the appellant sexually assaulted the complainant at his friend's caravan in Dromana. He took her to the caravan and instructed her to remove her clothing. He told her then to sit on the bed, where he kissed her neck and then rubbed his fingers up and down her vagina whilst touching her chest. Count 2 involved the appellant having the child suck on his penis. Count 3 involved the appellant lying on top of the complainant and penetrating her vagina with his penis.

8 The second occasion when incidents like this occurred happened during the Easter holidays in 1985, again involving a visit by the complainant to the appellant's caravan. He took her to a caravan belonging to a friend of his and exposed his penis to her and told the complainant to 'suck him off', which she did. This became the basis of Count 4. Some time after that occasion but still during 1985, the appellant was driving the complainant to Dromana and whilst he was driving again instructed the complainant to suck on his penis, which she did. This became Count 5.

9 The complainant was apparently told by the appellant that her parents knew about what had occurred between them, and a long period of time passed without any complaint being made. However, in 1994, when the complainant was 18 years of age, she informed her best friend of what had occurred. In May 2005 the matter was brought to the attention of the police. In August of 2005 the appellant was interviewed by the police. He initially told them that he could not remember the complainant or her family and categorically denied committing any of the offences. In November 2005 at a further interview, he said he could remember the complainant and her father but continued to deny the allegations. At one stage during the second interview he maintained the complainant had asked him for sex at around that time.

10 During the course of the plea before the sentencing judge on 18 October 2007, counsel for the appellant sought to persuade the sentencing judge that there were exceptional circumstances in this case which would permit the judge to impose a suspended sentence in accordance with s 27 of the Sentencing Act 1991 (Sentencing Act). The relevant provisions are as follows:

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is convicted of more than one offence in the proceeding -

(a) does not exceed 3 years in the case of the Supreme Court or the County Court;

(2B) Despite subsection (1), a court must not make an order suspending the

whole of a sentence of imprisonment imposed on an offender for a serious

offence unless it is satisfied, after having had regard to the factors

specified in subsection (1A), that making such an order is-

(a) appropriate because of the existence of exceptional circumstances; and

(b) in the interests of justice.

11 There was discussion between his Honour and counsel as to the meaning of the words 'exceptional circumstances'. His Honour, in expressing his understanding of the meaning, observed that exceptional circumstances means 'circumstances which are beyond human expectation or foresight'. The appellant submits this understanding is incorrect.

12 As counsel for the respondent before us submitted, the sentencing judge needed only to consider the test of what would constitute exceptional circumstances if the sentence of imprisonment he intended to impose was three years or less. In this instance his Honour obviously did not come to such a view, imposing a total effective sentence of seven years' imprisonment and it was therefore unnecessary for his Honour to further consider the matter.

13 I agree with that submission, and, as counsel for the appellant conceded in argument, if that be the case this ground must fail. The sentencing judge had clearly rejected the prospect of imposing a sentence on the appellant that brought s 27(2B) of the Sentencing Act into contemplation. Whatever view the sentencing judge took of the phrase 'exceptional circumstances', it ceased to be relevant to his sentencing task. (See also R v Burke,[1] where a similar issue arose with the same resolution).

14 In this Court, counsel for the appellant submitted that the advanced age of the appellant was a significant mitigating factor, and that the sentencing judge had, both in the sentence itself and in the reasons for sentence, undervalued his age as being a mitigating factor in the imposition of sentence.

15 The age of the appellant was relied upon as one of several circumstances on which the argument for a suspended sentence was based. The sentencing judge quite properly rejected that argument, but, of course, it remained a circumstance to be dealt with in coming to a conclusion on the appropriate sentence. During the plea, counsel for the appellant specifically referred the sentencing judge to authority in relation to 'crushing' sentences and the significance of the age of the offender by reference to R v Bazley.[2] In the course of the reasons for sentence, the sentencing judge said:

The prisoner is 83 years of age and suffers from ill health by reason of arthritis, high blood pressure and emphysema. These conditions are at present stable and controlled. In the environment of prison they might well become life threatening, particularly if not treated properly.

At the end of his sentencing remarks the sentencing judge identified the major matters of mitigation as the appellant's Merchant Navy war service, his plea of guilty and lack of other offending. Although not regarding the ill health of the appellant as a mitigating circumstance, he concluded that it bore on the severity of the effect of incarceration. No mention was made of the appellant's age in that context.

16 Counsel for the respondent in this Court submitted that significant emphasis was placed on the appellant's age during the plea and that, as I have outlined above, it was put as a central basis to establish that exceptional circumstances existed in relation to the appellant which would allow the sentencing judge to impose a suspended sentence upon the appellant. In his written submissions on this ground, counsel for the respondent further submitted that:

Whilst his Honour's reasons for sentence did not dwell on the question of the appellant's age, it was clearly one of the focal points of the plea, the significance of which was clear. The submissions made on behalf of the appellant in this regard were brief, as the factor and its implications were self evident.

17 In R v Bazley, the Court of Criminal Appeal concluded that:

The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.[3]

Likewise, in R v Cumberbatch,[4] this Court reasoned that a sentence which removed a reasonable future prospect of life outside and was therefore arguably crushing did not necessarily compel a conclusion that the sentence was manifestly excessive. As counsel for the respondent submitted, an offender's age does not militate against the imposition of a significant period of imprisonment in the appropriate case.

18 On the other hand, in R v RGG,[5] the appellant had pleaded guilty to two representative counts of digital penetration of a child aged 10 to 16 years, two representative counts of penile penetration, a count of indecent assault and a count of attempted sexual penetration of a child under the age of 16 years. The total effective sentence was a sentence of eleven years and two months with a minimum term before eligibility for parole of eight years' imprisonment. At the time of the offences, which occurred in 1996, the appellant was 61 years of age. At the time of sentence he was 71 years of age. Though more serious, the circumstance were not dissimilar from this case in some respects. The sentencing judge had concluded that the considerations of the age and ill health of the appellant should only be given 'very modest weight'. On appeal, as an acting member of this Court, I concluded that:

Consistently with the observation of the Court in Bazley, I do think this is a case where the age of the offender is of significance, and in my opinion when applied to this case, the extracted principles do not support the conclusion reached by her Honour that the weight to be given to the appellant's age and ill-health be 'only very modest'. It follows, therefore, that this ground of appeal is made out.

19 Likewise in this case, I consider that the age of the appellant is of considerable significance. I also consider that given his advanced age, his ill health is also of considerable relevance. Apart from reciting the age of the appellant as being 83, the sentencing judge otherwise made no further reference to it. As to the appellant's medical conditions, his Honour noted that ailments from which the appellant was suffering, being arthritis, high blood pressure and emphysema, were stable and controlled and might become life threatening if not treated promptly. However, the medical information from Dr Mustofa indicated the observation that:

At the age of 83, George has significant difficulties in mobility, which is possibly due to extensive osteoarthritis of his Spine/Knee/Hips etc and he heavily rely [sic] on walking Sticks... In my view, a term of imprisonment may adversely affect his health given his age and has been suffering from multiple Chronic medical conditions, which may need regular follow-up and treatment.

This information squarely raised the possibility that, in view of his age, a sentence of imprisonment may adversely affect the appellant's health. It is axiomatic that the fact of incarceration for the first time in his life would be significantly more onerous than for a much younger person.

20 In my opinion this ground is made out. When a court imposes a sentence on a person of 83 years of age, it is necessary that the manner in which that person's age and associated medical condition have been considered by the sentencing judge be identified. Any person of that age, with medical conditions, encounters the significant risk that by virtue of their advanced age they will not see life beyond prison. This is an important consideration. Neither that nor the effect of incarceration has been properly dealt with in this case by the sentencing judge.

21 Having reached the conclusion I have on this ground, it becomes unnecessary to deal with ground 3, asserting that the sentence was manifestly excessive. That also applies to ground 4, added at the commencement of the hearing of the appeal. As to that latter ground, in my opinion, the effect of the remarks and orders of the sentencing judge is that the sentences on Counts 1 and 2 have been erroneously imposed on the appellant as a serious sexual offender. As counsel for the appellant submitted, this is an error and once established would re-open the sentencing discretion.

22 Since I have concluded that sentencing error has been established, the appellant falls to be re-sentenced. At the time of sentence being imposed, the appellant was 83. It is unlikely that he posed any further danger to the community. Whilst that could not be guaranteed, his lack of prior or subsequent convictions for

any offences and the living of an otherwise blameless life tends in favour of that conclusion. His background included significant war service during World War II which left him wounded. In addition, we were provided with further contemporary medical information which indicated the appellant's physical condition was making the serving of his sentence very onerous, and that he was under continuing medical care or hospitalisation. On the other hand, the offending in this case was serious, and it was clear from the Victim Impact Statement read to the court by the prosecutor that, apart from the objective seriousness of what was done to the complainant, there was a continuing and strongly adverse effect on her health which will no doubt continue.

23 In my opinion, in re-sentencing the appellant it is appropriate to fix a slightly longer than usual non-parole period, and taking account of the age of the appellant and the medical conditions which no doubt will worsen with age and his continuing incarceration. I would re-sentence the appellant as follows:

The appellant would be sentenced as a serious sexual offender on Counts 3, 4 and 5. The base sentence would be Count 3. I would direct that six months of the sentence on Count 2 and nine months of each of the sentences on Counts 4 and 5 be served cumulatively with each other and with Count 3. That results in a total effective sentence of six years. I would fix a minimum term of three years' imprisonment before the appellant is eligible for release on parole.

24 The offences in this case were very serious ones involving the abuse of a girl who was only eight years old, by a 60 year old man. The offences were committed

on three separate occasions, with Counts 4 and 5 occurring some months after the sexual acts giving rise to Counts 1 to 3. They involved serious breaches of the trust which the child's parents had reposed in the appellant.

25 Mr Iles must have known that telling an eight year old girl that her parents knew about the sexual acts would have added to her confusion, distress and powerlessness. Not surprisingly, this resulted in the girl's alienation from her parents until they finally became aware of what had happened to their daughter. The Victim Impact Statement shows that the abuses had long-lasting effects on her.

26 Nevertheless, I agree with the reasons of Redlich JA, which I have read in draft form and with Lasry AJA that the sentencing judge erred by giving insufficient weight to the fact that Mr Iles was aged 83 at the time of the sentence, and that it was not unlikely that he would die while in prison. His Honour was required to take account both of Mr Iles' age and of his health problems when sentencing him. It also appears that his Honour erred in sentencing the appellant as a serious sexual offender on Count 2. I would re-sentence the appellant in the manner that his Honour proposes.

27 The appellant was given leave to add a further ground which complains that the appellant was wrongly sentenced as a serious sexual offender on Counts 1 and 2. It is evident from the sentencing remarks that the order for cumulation of part of the sentence on Count 2 was made in the belief that the appellant fell to be sentenced on that count as a serious sexual offender, so that the sentence was to be cumulative unless it was otherwise ordered. His Honour stated that this was not a case in which a disproportionate sentence was called for.

28 Counsel for the Director submitted that it was not a material error, as it did not impact upon either the individual sentence pronounced on Count 1 or 2, or the order for cumulation that was made. He relied upon R v DW,[6] in which such an error was held not to vitiate the sentencing discretion on any of the counts or require that the sentences be set aside. But in contrast to the present appeal, that was a case in which there was nothing to indicate that the sentencing judge had undertaken any part of the analysis required by ss 6D and 6E of the Sentencing Act in fixing sentence, nor did the sentencing judge cumulate the sentences in the fashion for which s 6E provides.[7] As the Court recognised in DW, it is a large thing to look, as it were, behind a declaration that the appellant has been sentenced on Count 2 as a serious sexual offender, but that is what counsel for the Director here invites us to do. He submitted, with some force, that the sentence imposed on these counts and the order for cumulation of part of the sentence on Count 2 were no more than would have been imposed to reflect the objective gravity of the offence, had there been no error in the characterisation of those counts. That, it was said, tends against the view that the sentence on this count or the cumulation ordered had been increased because of the error. But that does not in my view identify the question which we must resolve.

29 Not every error appearing in sentencing remarks will vitiate the sentencing discretion. It must be a material error. That is to be assessed by asking whether the error influenced or might have influenced the sentence passed or the amount to be cumulated.[8] If it was reasonably open that the error affected the sentence imposed or the order for cumulation, the error must be viewed as material.[9] As was candidly acknowledged during argument, it is impossible to say with sufficient certainty that the error did not have that effect. In those circumstances, the ground is made out and the sentencing discretion re-opened.

30 His Honour dealt with the appellant's age and ill health in his sentencing remarks by referring to the fact that the appellant's medical condition could become life threatening in prison. In doing so, his Honour was giving recognition to the principle stated in R v Van Boxtel[10] that circumstances which may render the term of imprisonment more onerous may be taken into account. Although his Honour was wrong to state that the appellant's ill health was not a mitigating circumstance, he expressly adverted to his ill health as a matter which bore upon the severity of the effects of his imprisonment.

31 That part of the plea in mitigation which related to the appellant's old age, as distinct from his ill health, was very brief, despite the fact that his Honour informed counsel that he was not familiar with the authorities that were relevant to that question.[11] Thus the submission on the plea may not have made clear that the appellant's old age was to be treated in law as a mitigating circumstance. It was not a matter referred to by his Honour when he listed the important factors in mitigation which he said he took into account.

32 In the present case, old age was central to, though not determinative of, the quantum of sentence to be imposed.[12] While giving due attention to the appellant's age, confidence in the administration of justice had to be maintained by imposing a sentence which reflected the gravity of the crime. That is to say, the age of the appellant did not permit the imposition of an inappropriate sentence. Rather, it was to be taken into account in determining what justice required.[13]

33 Old age is generally spoken of as a mitigating factor permitting the imposition of a sentence which is shorter than otherwise might be the case.[14] The significance of old age as a mitigating factor is that general deterrence may be required to surrender some ground to the need to exercise mercy to take account of the possibility that the offender may not live to be released.[15] General deterrence in the context of

sentencing an elderly offender must be considered in the light of the impact upon public perception of a gaol sentence upon a man of such advanced years upon whom a sentence will bear more heavily.[16]

34 It may in particular circumstances be necessary to impose a sentence which may have the effect of requiring an offender to spend the whole of the remainder of his life in custody.[17] The older the offender, the greater the likelihood that even a relatively short sentence will fall into this category. This case is such an example.

35 Thus, the fact that each year of the sentence which the appellant must serve will represent a substantial portion of the period of life which is left to him is a weighty consideration which mitigated the sentence to be imposed.[18]

36 For these and the reasons given by Lasry AJA, I would allow the appeal and re-sentence the appellant as he proposes.

1. The sentences imposed on the appellant on 18 October 2007 are quashed. In lieu thereof the appellant is re-sentenced as follows:

1. With Count 3 as the base sentence, six months of the sentence on Count 2 and nine months of each of the sentences on Counts 4 and 5 are to be served cumulatively with Count 3 and with each other, resulting in a total effective sentence of six years.
2. The appellant shall serve three years' imprisonment before becoming eligible for release on parole.
3. All other ancillary orders are confirmed.

It is declared that the appellant is sentenced as a serious sexual offender on Counts 3, 4 and 5.

It is declared that the period of 686 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.

[1] [2009] VSCA 60, [27].

[2] (1993) 65 A Crim R 154.

[4] [2004] VSCA 37; (2004) 8 VR 9.

[5] [2008] VSCA 94.

[6] [2006] VSCA 196.

[8] R v RJE [1999] VSCA 79, [12]-[13] (Brooking JA).

[9] R v Fox [2003] VSCA 138, [4] (Chernov JA), [51] (Ashley JA).

[10] [2005] VSCA 175; (2005) 11 VR 258.

[11] It occupied just a little over one page of the transcript.

[12] DPP v Kien [2000] VSC 376; (2000) 116 A Crim R 339, 342 (Cummins J).

[13] R v Bazley (1993) 65 A Crim R 154; R v Cumberbatch [2004] VSCA 37; (2004) 8 VR 9.

[14] R v RGG [2008] VSCA 94; DPP v Kien [2000] VSC 376; (2000) 116 A Crim R 339; Austin v R (1996) 87 A Crim R 570, 572.

[15] Austin v R (1996) 87 A Crim R 570.

[16] Holyoak v R (1995) 82 A Crim R 502, 507.

[17] Holyoak v R (1995) 82 A Crim R 502; DPP v Kien [2000] VSC 376; (2000) 116 A Crim R 339.

[18] R v Hunter (1984) 36 SASR 101; R v Yates [1985] VicRp 3; [1985] VR 41; Crowley & Garner v R (1991) 55 A Crim R 201.