R v J G [2005] VSCA 74

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

2 The appellant, who is now aged 62 years, pleaded guilty on 19 July 2004 to five counts of indecently assaulting his stepdaughter between January 1979 and March 1986, at which time she was aged variously between eight and 14 years. The maximum penalty prescribed by the Crimes Act 1958 for indecent assault of a child aged under 16 years was five years' imprisonment. The appellant has no prior convictions. On 27 July 2004, following a plea in mitigation made on his behalf, the learned sentencing judge sentenced the appellant to a total effective sentence of seven years' imprisonment and directed that he serve a minimum term of four years' imprisonment before becoming eligible for parole. More particularly, the following custodial sentences were imposed:

Count 1 - 1 year

Count 2 (a representative count) - 4 years

Count 3 - 1 year

Count 4 - 2 years

Count 5 - 1 year

His Honour recognised that the appellant fell to be sentenced as a serious sexual offender pursuant to s.6A of the Sentencing Act 1991 in respect of counts 3, 4 and 5 and, in the course of imposing the sentence on each of those counts and count 2, his Honour ordered that part or the whole of the sentence, as the case may be, be cumulated. But he did not say, in terms, on which count such cumulation was to take place. As I will explain later, such cumulation orders are inconsistent with this Court's directions as to the proper method of cumulating sentences. Be that as it may, what his Honour relevantly said on this issue was this. After sentencing the appellant on count 2, his Honour added " ... and I order that three years of that sentence is to be served cumulatively on all other sentences imposed today." His Honour also ordered that each of the sentences imposed on counts 3 and 5 was to be served cumulatively "to all other sentences". In respect of count 4, his Honour directed that one year of the two years' imprisonment imposed in respect of that count be served cumulatively "to all other sentences imposed today". Nothing was said by his Honour in relation to cumulation in respect of the sentence imposed on count 1. The learned sentencing judge relevantly concluded: "There is therefore a total effective sentence of imprisonment of seven years and you are to be eligible for parole after serving four years of that sentence."

3 On 5 August 2004, the appellant filed a notice of application for leave to appeal against sentence that contained three proposed grounds of appeal. On 15 September 2004 he filed a Full Statement of Grounds of Appeal that set out an additional, fourth ground. On 19 November 2004, a single judge of this Court granted the appellant leave to appeal against the sentences imposed pursuant to s.582 of the Crimes Act 1958. Before dealing with the appellant's grounds of appeal, I will set out briefly the circumstances of the offending and of the appellant.

4 The victim of each offence was the appellant's stepdaughter who was, as I have noted, aged variously between eight and 14 years when the offences were committed between January 1979 and March 1986. The victim made no complaint, however, until mid-2001, when she was 30 years of age.

5 The appellant met the victim's mother in about 1979. He had not been previously married or, it seems, had a relationship of any length. The victim's mother, however, had five children from a previous relationship, and when she and the appellant commenced living together in about 1980, the victim, who was then aged eight years, and two of her elder brothers, also came to live with them. In 1982 the couple were married. The offending conduct, however, commenced before that date. On a date between 1 January 1979 and 31 December 1980, when the victim was aged between eight and nine years, she was with the appellant in the back yard of their home where the appellant was burning leaves and other material. According to the victim the appellant stopped what he was doing and put his hand down her pants, but at first, not inside her underpants. He rubbed the outside of her vagina through the material of her underwear before moving his hand inside it and continuing to rub the outside of her vagina. That conduct formed the basis of count 1 on the presentment.

6 The offending conduct that was the basis of count 2 was committed by the appellant against the victim when she was aged between eight and ten years, on a date between 10 March 1979 and 28 February 1981. As I have already noted, this count is a representative count, the victim having given evidence during the committal hearing that made it clear that the appellant had offended against her in a similar manner on more than one occasion during that period in the following context. The appellant bought and reconditioned old cars, which he then sold. He often took the victim with him when he drove in his car to visit local car yards in search of spare car parts and the like. On a number of such occasions during this period, whilst he was driving, he put his left hand down the child's pants, inside her underwear and, with his fingers, rubbed the outside of her vagina.

7 The offending conduct that was the subject of counts 3 and 4 was committed by the appellant one afternoon between 10 March 1984 and 9 March 1985, when the victim was aged 13 years. He sat next to her on the couch from which she was watching television after school. He lifted up her school uniform tunic and put his hand down her underpants and rubbed the outside of her vagina with his fingers. He continued to do this for a little while before getting off the couch and kneeling in front of her. He then pulled down her underpants and, using his hand, pushed apart her legs and licked the outside of her vagina.

8 The offence that was the subject of count 5 was committed by the appellant between 10 March 1984 and 9 March 1986. On this occasion, the victim was lying in bed between her mother and the appellant, watching television. The appellant put his hand over her vaginal area and slowly rubbed his hand over it.

9 It was not until 2001, as I have said, that the victim first complained about the appellant's offending behaviour towards her. With the encouragement of her de facto husband, in about mid-2001 the victim telephoned her mother and told her of her experience with the appellant. At her mother's instigation, she then spoke on the telephone to the appellant, telling him that she had just told her mother what he had done to her. A little later, on finishing the telephone call, the victim's mother asked the appellant if he had done what the victim had alleged. He admitted that he had, saying, "I tried to tell you years ago". He then broke down and cried. Not long thereafter, the couple separated. On 29 November 2002, the victim made a statement to the police in which she recounted the appellant's above offending conduct against her. In her statement, she said that approximately three months earlier she had told the appellant that she was "thinking about taking [him] to court", to which he responded: "You do what you have to do". On 8 January 2003, the appellant voluntarily attended the Coburg Police Station where he was interviewed in relation to the above offences, in the course of which he made "no comment" responses to the allegations of sexual offending.

10 I now turn to the appellant's personal circumstances. He was born on 28 May 1942 in a forced labour camp in Germany. His parents were Polish and he and his siblings were in the camp until the war ended in 1945. The family were then moved from refugee camp to refugee camp before migrating to Australia in 1950. Once here, the appellant and his mother and siblings were placed in an army camp at Bonegilla, near Albury, which housed many immigrants arriving at that time. The conditions at the camp were primitive, particularly by today's standards, but it seems that they did not have an unduly adverse effect on the appellant. His father, however, was required, as a condition of the family's passage to Australia, to perform two years of contracted service at the direction of the Australian Government. This resulted in his working for two years in Flemington while the rest of the family lived in Bonegilla.

11 The appellant's family finally moved to Melbourne in about 1952, living for the first two years in a bed-sitting room in a house in Carlton so as to enable his parents to save sufficient money to buy their own home. During this period the family unit was further disrupted because the overcrowding in the boarding house resulted in it being evicted temporarily from the premises. As a consequence, the appellant and his elder brother were placed in the Tally Ho Boys' Home for about two weeks before returning to live with their parents. The appellant attended the local school but performed so poorly that his father effectively removed him from it when he was aged 15, before he completed Year 9. It seems that the appellant had literacy difficulties and language problems.

12 The appellant had a range of jobs after he left school, and at one stage he even operated his own furniture retailing business. This enterprise eventually failed, however, and in 1986 he obtained work at the Royal Children's Hospital where he continued to work until his sentence. During the past 25 years or so the appellant suffered from Type 2 Diabetes Mellitus as a result of which he experienced failure of his erectile function, which he said caused him much frustration and friction with his wife. It was during this period of erectile dysfunction that the appellant committed the offences in question.

13 As I have noted, the appellant has no prior criminal history and no history of drug or alcohol abuse. The report dated 10 July 2004 of psychologist Patrick Newton, which was tendered in evidence for the appellant during the hearing of the plea in mitigation, confirms that the appellant, although of low to average intelligence, has no psychological disorder and is not suffering from paedophilia. Mr Newton considered that it was unlikely that the appellant would re-offend in a similar manner in the future and that his "prognosis for full recovery [was] good".

14 I now turn to the grounds of appeal. For reasons that will become apparent, and should the other members of the Court agree, it is only necessary to deal with grounds 1 and 4, which were argued together. Under cover of them it was claimed that the sentences, particularly that imposed on count 2, are manifestly excessive and reflect his Honour's failure to take into account sufficiently, or at all, a number of important matters going to mitigation. Counsel particularly highlighted the following matters: the maximum penalty for each count was five years' gaol, the appellant pleaded guilty, was remorseful, had no prior or subsequent convictions, was not a young or healthy man, had a good work history, posed no threat to the community and lost his family as a result of these offences. In those circumstances, it was said, the sentence of four years' imprisonment on count 2 is plainly excessive. In that context, counsel contrasted this sentence with that imposed in R. v. Taylor[1], where the offender was convicted following a trial of three counts of committing an indecent act with a 12 or 13 year old family friend. He had prior convictions for offences of a similar nature and a subsequent conviction (albeit from an earlier offending) also of a similar nature. Moreover, said counsel, in that case the maximum penalty for each count was ten years' imprisonment. This Court considered that the sentences imposed below were plainly excessive and substituted individual sentences of three months', fifteen months' and two-and-a-half years' imprisonment respectively. It made cumulation orders resulting in a total effective sentence of three years and three months' imprisonment and a non-parole period of two years and three months' imprisonment was ordered. Mr Croucher for the appellant submitted that the aggravating circumstances in Taylor were significantly worse than those in the present case, thus demonstrating that the sentence on count 2 is plainly excessive.

15 One of Mr Croucher's main arguments was that the appellant had plainly expressed remorse, yet the learned sentencing judge did not give any or sufficient weight to this important mitigating factor. In support of the claim that the appellant had expressed remorse, counsel referred first to the appellant's plea of guilty and then to Mr Newton's report, in which he said that the appellant "expressed regret for his behaviour and a sense of personal shame. He was tearful when discussing his offending and the impacts of it on his victim and extended family. At no time did [he] attempt to minimise the significance of the offending or to attribute any form of blame to his victim for his behaviour." Next, counsel pointed to the appellant's response to the victim's initial disclosure to her mother of his offending, to which I have already referred and which, it was submitted, "smacked of remorse". Counsel said that, although these matters were mentioned during the hearing of the plea in mitigation, his Honour responded by referring to the victim having been "extensively cross-examined at the committal", thereby indicating, said counsel, that he did not accept that the appellant was remorseful for his offending conduct. Mr Croucher argued that the victim's cross-examination at the committal hearing probably weighed on his Honour's mind notwithstanding that the appellant's then counsel pointed out to the judge that much of it concerned allegations that ultimately were not pursued by the Crown. Mr Croucher submitted in effect that his Honour's concern in that regard probably led him to discount unduly the powerful evidence going to remorse and impose the impugned sentence on count 2.

16 To put these contentions in context, it should be mentioned that, at the outset, the appellant was charged not only with the offences with which we are here concerned, but with gross indecency. That situation prevailed at the committal proceeding. Mr Gamble, for the respondent, submitted that during that proceeding the appellant's then counsel's cross-examination of the victim went not only to matters relating to gross indecency but also to show that the lesser offences did not take place. Thus, it was said, the victim was cross-examined to test her veracity and memory. As Mr Gamble pointed out, questions were put to the victim which, on their face, had no bearing on the more serious charge and went to establishing that the events alleged which formed the subject of the lesser counts did not occur. There is much force in Mr Gamble's submission that that was the flavour of the cross-examination and that it is a factor which should be borne in mind when considering what sentencing discount should be afforded to the appellant on account of his plea of guilty and claimed remorse. On the other hand, one must not lose sight of the fact that it is difficult to separate questions going to the attack on the more serious charge from those going solely to the allegations made concerning the lesser charges. Mr Croucher submitted that most of the cross-examination could be said to go directly or indirectly to the more serious charge. Counsel made the point that credit was indivisible and, in asking questions of the victim concerning the lesser counts, the implicit allegations as to her lack of veracity or memory would also have had a bearing on the Crown's case on the more serious charge. Be that as it may, it seems that the appellant's then counsel did his client no service by cross-examining the victim in the way he did if a plea of guilty was in contemplation.

17 On the question of the appellant's apparent late plea of guilty, namely, at the directions hearing in the County Court, it seems that the case was not "settled" until the Crown withdrew the gross indecency charge and that it did so only when the appellant's medical records were produced, showing his erectile dysfunction. On the other hand, it is also true that, as Mr Gamble submitted, theoretically the appellant could have pleaded guilty at the committal proceeding to the lesser charges but not guilty to the more serious charge. But, in my view, the fact that he did not do so should not be held against him, given that, as Mr Croucher pointed out, such a course would have been forensically difficult in the circumstances of this case, particularly bearing in mind that the victim's credit was relevant to all counts.

18 There were other matters put by Mr Croucher in support of his principal contention, but for reasons which will become apparent, it is not necessary to deal with all of counsel's arguments. It should be acknowledged that his Honour's task of sentencing the appellant was a difficult one. He was required to impose a sentence that reflected the seriousness of the offence and the offending conduct, as well as the applicable sentencing principles, but taking into account the appellant's personal circumstances and any other available mitigating factors. Here, as Mr Gamble pointed out, the offending was very serious given that it continued over a lengthy period and involved a breach of trust by the appellant and was committed against a very young victim with serious adverse consequences to her. It is also the case that the offence the subject of count 2 was a "sample" offence so that any leniency that could otherwise be afforded to the appellant would be considerably reduced.[2] Moreover, the principle of general deterrence was of considerable relevance to the sentencing disposition here. All these factors called for sentences that reflect stern punishment.

19 On the other hand, powerful mitigating circumstances were present in this case. First, I am persuaded that the appellant has shown genuine remorse about his offending conduct. In that regard I refer particularly to his reaction when he was first asked by his wife whether he had offended against her daughter and to his response to the victim when she told him that she was considering reporting the incident to the police. Further, as Mr Croucher pointed out during his oral submissions, when the appellant and the victim's mother separated, the appellant settled their matrimonial property in favour of the mother, as she required, because he felt he had betrayed not only the victim but also her mother, thus, said counsel, demonstrating yet again his remorse for his offending conduct. Further, there is the material in Mr Newton's report that goes to the question of the appellant's remorse, to which I have already referred. Importantly, I think, the appellant's prognosis as to rehabilitation is sound and he does not seem to be a danger to the community. Moreover, as I have mentioned, he has a good working history and comes to be sentenced as a person of prior good character. Furthermore, the appellant's personal circumstances are pathetic in the true sense of the word - he had a difficult childhood, has low to average intelligence, is seriously ill and has been in that condition for some time and has virtually no family or friends. Although Taylor is certainly not on all fours with this case, it did deal with a similar offence and the sentences imposed there should not be entirely overlooked for present purposes. As the learned President said in R. v. Carey[3]:

"It is true that comparison for the purposes of sentencing, as has frequently been pointed out, can be misleading because each case must be determined upon its own facts; but, by the same token, consistency of punishment, as Mason, J. (as he then was) pointed out in Lowe v. R. [1984] HCA 46; (1984) 154 C.L.R. 606 at 610-611, is fundamental to a rational and fair system of criminal justice."

20 The question whether a sentence is manifestly excessive translates into whether it is outside the range of sentences properly available to the sentencing judge, bearing in mind that there is no such thing as a "correct" sentence. This issue, however, does not admit of much argument. It requires consideration of whether, on the relevant material and the appropriate principles, it can be said that the impugned sentence is plainly outside the relevant range. In all the circumstances, I consider that the sentence of four years' imprisonment on count 2, being four fifths of the maximum sentence for that offence, is, in the circumstances of this case, plainly excessive and outside the range of sentences that was properly available to his Honour. Should the other members of the Court agree with my conclusion, the sentencing discretion will be re-opened and the appellant will stand to be re-sentenced by this Court, in which case there will be no need to consider the other grounds of appeal, as I have mentioned.

21 In that context, I would set aside the sentences imposed on the appellant by the learned sentencing judge on 27 July 2004 and re-sentence him to the following terms of imprisonment:

Count 1 - 12 months

Count 2 - 3 years

Count 3 - 12 months

Count 4 - 2 years

Count 5 - 12 months.

Since, for the reasons already mentioned, the appellant is to be re-sentenced as a serious sexual offender in respect of counts 3, 4 and 5, the sentences imposed on those counts must be served cumulatively unless otherwise ordered. In the circumstances, in order to reflect the total criminality of the appellant's offending, I would make the following orders for cumulation and concurrency: six months of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 2 and six months of the sentences imposed on each of counts 3 and 5 and 12 months of the sentence imposed on count 4 be served concurrently with the sentence imposed on count 2 and on the other sentences, thereby producing a total effective sentence of five years and six months' imprisonment. In light of the appellant's personal circumstances to which I have referred, and in particular his sound prospect of rehabilitation and the likelihood that he will not again re-offend in the same way, I would order that he serve two years and nine months' imprisonment before becoming eligible for parole.

22 I cannot leave this case without making the observation that his Honour's mode of cumulating the sentences plainly disregards the directions that have been given by this Court on this issue on numerous occasions.[4] It has been made plain that, in the case of imposing multiple sentences, any cumulation should be upon the most serious count because otherwise, as Batt, J.A. explained in R. v. MDB[5], a distortion may be created "whereby the less serious offence takes [or appears to take] an undeserved primacy, whilst the most serious offence ... [is or appears to be] diminished". It seems to me that this is a straightforward and commonsense principle that can be easily applied, yet a significant number of cases come before this Court where the cumulation orders seem to disregard this principle. The present case falls into that category. I put to one side the fact that his Honour ordered erroneously that parts of the sentences on counts 3, 4 and 5 be "cumulated", notwithstanding that, as I have mentioned, s.6A of the Sentencing Act prescribes cumulation of these sentences unless otherwise ordered. Worse still, however, his Honour did not, in terms, say which count was to be the base count on which portions of other sentences were to be cumulated, although it seems probable that his Honour intended to treat count 1 as the base count, given that no cumulation

order was made in relation to the sentence on that count. But the most serious count was obviously count 2 so that his Honour's cumulation orders created the very vice which Batt, J.A. highlighted in MDB, whereby the less serious offence - namely, that which is the subject of count 1 - appears to have taken an unwarranted primacy for sentencing purposes while the relevance of the most serious offence - that charged by count 2 - appears to be diminished. It is unfortunate that his Honour did not follow the plain directions given by this Court as to the appropriate method of cumulating sentences in a case such as the present.

23 I agree with the reasons and the orders proposed by Chernov, J.A.

24 I also agree. Neither the circumstances of the offending the subject of count 2 nor the representative character of that count can justify the imposition of a sentence of four-fifths of the maximum on an offender with no prior convictions for an offence committed at a time when indecent assault included far more serious conduct, as Mr Croucher pointed out.

25 Though I have had some hesitation as to whether the proposed sentence on count 2 is not a little severe, I am not in the end prepared to dissent about it.

26 The formal orders and declarations of the Court are as follows:

1. The appeal against sentence is allowed.

2. The sentences imposed on the appellant in the County Court at Melbourne on 27 July 2004 are quashed.

3. In their place the appellant is sentenced to be imprisoned as follows -

on count 1 - 12 months

on count 2 - 3 years

on count 3 - 12 months

on count 4 - 2 years

on count 5 - 12 months

4. That six months of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 2 and that six months of the sentence imposed on each of counts 3 and 5 and 12 months of the sentence imposed on count 4 be served concurrently with the sentence imposed on count 2, so that the total effective sentence is 5 years 6 months' imprisonment.

5. The appellant serve a period of two years and nine months' imprisonment before becoming eligible for parole.

6. The Court declares that in respect of the offences that are the subject of counts 3, 4 and 5 the appellant was sentenced as a serious offender, more particularly, a serious sexual offender, for the purposes of the Sentencing Act 1991 and directs that this declaration be entered in the records of the Court.

7. The Court further declares that the period of 234 days, calculated to this day, 17 March 2005, is to be reckoned as already served under the sentence now passed and directs that the fact that the declaration was made and its terms be entered in the records of the Court.

[1] [2004] VSCA 98; [2004] 8 V.R. 213.

[2] See R. v. SBL [1998] VSCA 144; [1999] 1 V.R. 706 at 710 to 711.

[3] [1998] 4 V.R. 13 at 18.

[4] See, for example, Director of Public Prosecutions v. Grabovac [1998] 1 V.R. 664 at 689 per Ormiston, J.A.; R. v. Birnie [2002] VSCA 155; [2002] 5 V.R. 426 at 436 per Ormiston, J.A. and R. v. MDB [2003] VSCA 181 at [14] per Batt, J.A.

[5] At [14].