R v J F [2008] VSCA 243

2 The appellant was sentenced on 28 October 2005 to a total of 11 years' imprisonment. The sentencing judge fixed a non-parole period of eight years and six months. The appellant was ordered to register as a Class 1 sexual offender under the Sex Offenders Registration Act 2004. He now appeals against his sentence.

3 The background to these offences may be briefly stated. The appellant, who is now 58 years of age, was aged between 43 and 45 at the time of the offending. His victims were his three stepchildren, the natural children of a woman that he married in December 1993. They were NS (a son born on 18 August 1984), MS (a son born on 1 September 1985), and SS (a daughter born on 15 January 1989). They were aged between five and 12 at the time of the appellant's offending.

4 The delay in bringing these charges needs to be explained. In August 1996, SS, then aged seven, complained to local community welfare services of having been sexually molested. As a result, she and her two brothers were taken into care.

5 The appellant was interviewed by police on 28 August 1996. He denied the allegations made against him. The police decided that there was insufficient evidence to charge him.

6 However, in April 1997, both NS and MS complained of having been interfered with by the appellant. The police conducted an investigation into their allegations. Before that investigation had concluded, the appellant fled Victoria. He was finally apprehended in New South Wales in May 2004, and subsequently extradited to Victoria.

7 As previously indicated, the appellant faced two separate presentments. These were respectively Presentment S00556883 (the 'first presentment') and Presentment S02435018.1 (the 'second presentment').

8 The offence described in count 1 on the first presentment, maintaining a sexual relationship with a child under 16 years, involved NS. It was said to have taken place between 1 January 1994 and 31 August 1996. The allegation was that on a number of stated occasions, the appellant had rubbed NS's penis and made NS perform oral sex on him and rub his penis.

9 Counts 2 and 3 on the first presentment, committing an indecent act with a child under 16, related to MS. The offence described in count 2 was said to have taken place between 21 September 1991 and 11 April 1994. The appellant was alleged to have placed his hands on the boy's penis and started to rub him. MS had told him to stop, but the appellant continued until MS repeated his request. The appellant told MS that he would get into trouble if he told anyone what had happened.

10 The offence described in count 3 occurred between 22 April 1996 and 8 August 1996. The appellant was alleged to have woken MS while he was asleep, undone the zip of his own pants, and exposed his erect penis to MS. He then stood close to MS and began to masturbate himself, while holding MS's hand. He again told MS not to tell anyone what had happened.

11 There were three counts on the second presentment. All related to the appellant's stepdaughter, SS who was aged between four and seven at the relevant times.

12 Count 1 on the second presentment, which involved maintaining a sexual relationship with a child under the age of 16, concerned three separate incidents in which the appellant digitally penetrated SS between 1 January 1994 and 31 August 1996.

13 In the first of these, the appellant, while giving SS a bath, started to play with her vagina. He touched her clitoris and rubbed and squeezed her in the area of her vagina and anus. He used one of his fingers to rub her clitoris and inserted another into her vagina. When BS walked into the bathroom, the appellant left. In a later incident, when SS was aged five years, the family went on a camping trip to Mildura. While his wife was asleep, the appellant placed his hand on SS's clitoris, inserted a finger into her vagina, and used the other finger to rub her clitoris. On the following morning, SS found that she had vaginal bleeding. When SS was aged seven, her mother went to stay with a friend for the weekend. SS was too scared to come out of her room for fear of what the appellant would do to her. However, she lost control of her bowel movements and ended up soiling herself. When the appellant discovered this, he struck her, and placed her under the shower. While she was in the shower, the appellant touched her on the vagina and inserted a finger 'all the way up' into her vagina. He then hit her again and put her to bed. He warned her against saying anything about what had happened when he later checked on her.

14 Count 2 on the second presentment, indecent assault, was a representative count for offences spanning the period 1 January 1994 to 31 August 1996. SS said that the appellant would pull down her pants and touch her 'rude parts', which were her anus and vagina. He would also give her 'toungies', which involved him forcing his tongue into her mouth despite her efforts to push him away. She also described two occasions on which the appellant had rubbed her vagina. On a further occasion, MS described how he had observed the appellant kissing and touching SS while she was sitting on the appellant's lap in the lounge room of the family home. He then saw the appellant slip his hand inside the lower half of SS's clothing.

15 Count 3 on the second presentment, committing an indecent act on a child under 16, was committed between 1 January 1994 and 30 November 1996. SS went to her mother's room, where the appellant was working on a model boat. When she asked for a drink, he told her that she would have to touch his penis in order to receive one. He then pulled his pants down and forced her to masturbate him for about five minutes. While this was happening, he moved his hand over the clothes that were covering her vagina. He told her that if she said anything to anyone about what had happened, he would do something bad to her.

16 SS did not immediately disclose these events. She said that she was in fear of her stepfather given the threats that he had made and his intimidating behaviour.

18 The sentencing judge ordered that three years of the sentence on count 1, and 12 months of the sentence on count 2 of the second presentment be served cumulatively upon each other, and upon count 1 of the first presentment. That led to a total effective sentence of 11 years and, as previously indicated, his Honour fixed a non-parole period of eight years and six months.

19 The appellant relies upon one ground in support of his appeal against sentence, which is as follows:

1. The learned sentencing judge erred by sentencing the appellant on:

(a) Count 1 of Presentment No. S00556883; and

(b) Count 1 of Presentment No. S02435018.1

on the basis that the maximum term of imprisonment for the offence the subject of each and both counts was 25 years.

...

20 A second ground of appeal in relation to the cumulation of the sentences was abandoned.

21 It is entirely clear from the sentencing judge's reasons for sentence that his Honour mistakenly assumed that the maximum penalty available in relation to each count of maintaining a sexual relationship was 25 years' imprisonment. In fact, the maximum penalty at the relevant time was 15 years in the case of count 1 on the first presentment, and 20 years in the case of count 1 on the second presentment. The Crown conceded before us that the sentencing judge had applied the wrong maximum penalties when sentencing the appellant in respect of these counts The Crown further conceded that the sentencing discretion had thereby miscarried, and that the appellant fell to be re-sentenced.

22 However, the Crown submitted that the appeal should nonetheless be dismissed on the footing that this Court should not be of the opinion that a different sentence or sentences should have been passed.[1]

23 The question for this Court to determine is whether, on a re-sentencing of the appellant, a different sentence or sentences should be imposed.

24 These were clearly very serious offences committed over a prolonged period against three young children in gross breach of parental trust. To make matters worse, the appellant had a number of prior convictions including some for sexual offences. At least one of these sexual offences was for taking part in an act of sexual penetration with a child aged between ten and 16.

25 It was submitted on behalf of the appellant that in re-sentencing him, the Court should pay particular regard to the sentence of seven years' imprisonment imposed in relation to count 1 on the first presentment. Grave though the conduct giving rise to that count may have been, it was submitted that a sentence of seven years could not be justified, given that the maximum penalty then available was 15 years.

26 It was conceded, however, that all other sentences imposed were within the range appropriate for conduct as appalling as that engaged in by the appellant.

27 It was further submitted on behalf of the appellant that on a re-sentencing by this Court, there were signs of rehabilitation not present during the course of the plea before the sentencing judge. For example, the appellant had undertaken various rehabilitative courses since being imprisoned, and had undertaken to undergo the sexual offenders program designed to deal with paedophilic behaviour.

28 These matters, together with the appellant's plea of guilty, warrant some consideration. There is little else that can be said in his favour.

29 Two other points should be made. First, the sentencing judge did not cumulate any part of the sentences imposed in relation to the offending against MS. That seems to us to have been wrong in principle, and counterbalances to some degree any reduction that might be warranted in relation to the sentence imposed on count 1 of the first presentment. Next, the offending involved in count 1 of the second presentment seems to us to have been more culpable than that of the offending involved in count 1 of the first presentment. That should be reflected in any re-sentencing by this Court.

30 In our view, the appellant should be re-sentenced as follows:

31 We would treat the sentence imposed in relation to count 1 on the second presentment as the base sentence. We would order that three years of the sentence imposed on count 1 on the first presentment, 12 months of the sentence imposed on count 2 of the second presentment, and six months of the sentence imposed on count 2 of the first presentment be cumulated with each other, and with the base sentence. That results in a head sentence of 10 years and six months. We would fix a non-parole period of seven years and six months.

[1] R v Bardsley [2008] VSCA 174, [11]-[12], [16] and [18].