R v J T A V [1999] VSCA 75

10. The learned judge heard a plea during which a number of witnesses were called on behalf of the respondent and then remanded him in custody pending the completion of a psychiatric assessment. A victim impact statement was declared by the victim's mother. On 17 December 1998 the learned judge sentenced the respondent to six months' imprisonment on count 1 and two years and three months' imprisonment on count 2. His Honour ordered that three months of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 3, making a total effective sentence of two years and six months' imprisonment, and ordered the respondent to serve six months' imprisonment before becoming eligible for parole.

13. The Director of Public Prosecutions now appeals pursuant to s.567A of the Crimes Act 1958 against the sentence imposed, on the grounds that -

1. The sentence imposed on count 3 was manifestly inadequate.

2. In fixing a term of two years and three months in respect of count 3 the sentencing judge -

(a) failed to adequately reflect the gravity of the offence generally and this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) gave too much weight to factors going to mitigation.

3. The total effective sentence was manifestly inadequate.

4. The non-parole period of six months was manifestly inadequate.

23. The circumstances under which a Court of Appeal will interfere at the behest of the Crown following a sentence have been considered by this Court in R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520; R. v. O'Rourke [1997] 1 V.R. 246; and R. v. Burton [1996] 87 A.Crim.R. 581. As Southwell, A.J.A. (with whom Tadgell and Ormiston, JJ.A. agreed) said in Burton (at 585), only in rare and exceptional cases should the Court do so, one example being where the sentence is found to be wholly disproportionate to the gravity of the proven criminality.

26. The facts giving rise to this offence were as follows. On 14 and 15 July 1998 the victim, a baby girl 19 months old, was left with her aunt and her uncle, the respondent, while her parents were at work. The victim's mother and the respondent's wife are sisters. On 15 July the victim's parents observed blood in her nappy which appeared to be coming from her vagina and what appeared to be a bruise or bite-mark on her left buttock. She was examined by a local doctor and then by a forensic medical officer who determined that the bruise on the left buttock had been caused by a human bite, and that she had been vaginally penetrated by a blunt object, causing a one centimetre by one centimetre laceration. The vaginal laceration was sutured under general anaesthetic.

29. The respondent and his wife were interviewed by the police in the early hours of 16 July and both denied any knowledge or responsibility for the injuries. Later that day, however, the respondent contacted the Rape Squad and was re-interviewed on 16 July. He then admitted to biting the baby's buttock over her clothing on 14 July and to having digitally penetrated the victim's vagina on 15 July. During the record of interview with the police, his reasons were given as anger and frustration directed at the victim's parents, the respondent denying that he felt any anger towards the victim, or that there was any sexual purpose in his actions.

32. There is no question that these offences were most serious, particularly the offence of rape, as the learned judge said in his reasons for sentence. His Honour said the injury caused to the baby's buttock was an obvious and nasty one. In describing the circumstances, his Honour placed them in the mid-range of seriousness of these offences and commented that the respondent had very clearly breached the trust imposed on him when caring for the baby girl. His Honour continued that the nature of the offending would have required him to impose upon the respondent a significant sentence of imprisonment had it not been for a number of matters which led him instead to impose a clement sentence. These matters were, first, the respondent's plea of guilty. Secondly, the respondent had made full and complete admissions to the investigating police and fully co-operated with them in their investigations. Thirdly, the respondent had no prior convictions. Fourthly, there was detailed evidence given during the plea of what his Honour described as the travail and privations which the respondent had endured in childhood and early adolescence, and his Honour accepted on the evidence that the early harrowing years which the respondent had endured would have had a significant effect upon him. The consequence, in his Honour's view, was that these experiences had caused the respondent to bottle up his worries and his troubles and frustrations, very likely leading to the offending on these occasions. I shall return to these matters later. Fifthly, his Honour heard evidence from Mr David Ball, a psychologist who had treated the respondent on some eight occasions and who gave evidence that the respondent had co-operated fully with him in his treatment. Mr Ball gave evidence that he accepted that the respondent's commission of these offences resulted from his anger and frustration, rather than from any sexual gratification, and was therefore of the opinion that there was a low risk of his re-offending in the future. Sixthly, his Honour heard character evidence called from five witnesses and received testimonials from two others, which his Honour held demonstrated that prior to the commission of these offences the respondent had lived a responsible, indeed admirable, life in the community. The evidence of these witnesses, in his Honour's view, together with the respondent's plea of guilty and co-operation with the police, attested to his remorse and concern for the infant victim.

35. Before imposing sentence, his Honour then adjourned the plea to enable a psychiatric report to be obtained, and during the adjournment a report was obtained from Dr Douglas Bell, consultant psychiatrist at the Rosanna Forensic Mental Health Centre. Dr Bell in his report stated that the respondent demonstrated a sense of deep remorse and shame for his offending, found no evidence of his demonstrating any paedophilic tendencies, and saw the offending as having resulted from the respondent's inadequate ability to control his temper and cope with feelings of frustration concerning his domestic situation, rather than as the manifestation of deviant sexual behaviour. When coming to sentence the respondent, his Honour said -

"I must balance consideration both of punishment of you for such serious offending, and also specific and general deterrence on the one hand, with considerations of your reformation and rehabilitation, and the matters of mitigation which I accept on the other hand. Having done so, I am satisfied that I must impose on you an immediate custodial sentence. However, in the light of all the evidence and the mitigatory factors which are established by that evidence, along with the opinions expressed by Dr Bell in his report, I am satisfied that not only should a considerably shorter sentence be imposed on you than would otherwise be appropriate, but also that there should be a larger discrepancy between head sentence and minimum term than would ordinarily be allowed. In the light of Dr Bell's report, I also observe that whilst in custody you should be assessed by the Core Sexual Offenders Programme with regard to you being an appropriate subject for the Wimmera Treatment Programme."

39. Mr Hillman, who appeared for the Crown in this Court, submitted that the offence of rape was a very serious one, and that general deterrence, although mentioned in his Honour's reasons, had been undervalued. He submitted that the protection of children from sexual assaults, regardless of their motivation, is a high priority in the law, and that general deterrence is of the utmost importance where young children are concerned; see R. v. Ware [1997] 1 V.R. 647. He also submitted that there were a number of aggravating circumstances, including that the rape was the second and more serious episode involving an attack on the victim which occurred on consecutive days, the respondent's behaviour not having been circumscribed by any remorse or realisation of what had occurred on the previous day. The respondent was in a position of trust and the nature of the second assault was particularly serious because the damage done required surgical intervention and a general anaesthetic, and it could not be assumed that the 19-month-old child whose vagina was digitally penetrated would not suffer both pain and feelings of indignity and shock. It was submitted that the learned judge overlooked or did not give sufficient weight to the high level of abhorrence with which the community would view this offence, and the denunciation by the courts which was accordingly required.

42. Mr Hillman submitted that the total effective sentence and non-parole period were both manifestly inadequate and wholly disproportionate to the gravity of the offences and submitted that the weight given to the mitigatory factors established during the plea had been allowed by the judge wrongly to outweigh the seriousness of the offences and general deterrence. Even allowing, he submitted, that good prospects of rehabilitation may lead to a shorter than normal non-parole period, none the less both total effective sentence and non-parole period were manifestly inadequate.

45. The first submission made by Mr Marron, who appeared for the respondent in this Court, was that the conduct of the prosecutor during the plea had contributed to the sentence imposed by the learned judge and that in consequence the Crown ought not to be entitled to call on the jurisdiction of this Court to interfere with the sentence. He submitted that the prosecutor's submissions had made it clear that the Crown was content for his Honour to impose a sentence less severe than that actually imposed by the learned judge, in effect by conceding that a wholly or a partially suspended sentence was open to his Honour. In my view there is nothing in this point. The prosecutor made it clear to the learned judge that he was making no submissions as to whether the custodial sentence which defence counsel had accepted was warranted should be immediately or partially suspended or wholly suspended, since he had no instructions on the subject.

48. I turn then to the matters advanced in mitigation at the plea and the evidence called on behalf of the respondent, which were relied upon by Mr Marron principally as justifying the sentence imposed.

51. The evidence before the court, which was not contested by the Crown, established that the respondent escaped from Vietnam in 1982, when he was 15, his family having attempted to escape on two previous occasions. On the second occasion his family were at sea for seven days in a small fishing boat in bad weather and rough seas with little food, water or fuel. They decided to return to Vietnam, where they were surrounded by four or five police boats and the respondent was left alone with three men with guns, who threatened him, beat him and emotionally and sexually abused him. The event finished when all the family were placed in a large bamboo muddy cage for two weeks and fed once a day. The respondent was then 13 years old. As his Honour said in his reasons, the evidence established that in escaping from Vietnam, and in coming from Malaysia to Australia, the respondent had suffered much privation and travail in the process. Thereafter he settled quickly in Australia, mastered the English language, and has since been regularly gainfully employed. He provided, of course, financial support for his wife and son.

54. Unfortunately the respondent did not have a good relationship with his parents-in-law or with his sister and brother-in-law as a result of cultural differences between them. The respondent believed his wife's family strongly disapproved of him because of his North Vietnamese accent, and also that they were unfairly taking advantage of his family by leaving their daughter with his wife. In the weeks prior to the commission of these offences the respondent had been working afternoon shifts from 3 p.m. until 2 a.m. the following morning, and frequently working overtime until 5 or 6 a.m. At his wife's insistence, and over his protests, she agreed to care for the victim, while her sister and the brother-in-law were conducting their business during the day. Not infrequently, the responsibility of looking after the child fell on the respondent when his wife went out to shop or to take a walk, leaving their own infant son of a similar age and the victim both for the respondent to look after. It was in these circumstances that his frustration and anger caused him on the first day to bite the victim (when she was crying) on her buttock through her clothes, and on the next to rape her digitally.

57. The learned judge took the view that the victim had no residual physical disability from the vaginal injury and will in the long term suffer neither physical nor emotional ill-effects from her experience. The evidence certainly was that she appeared to have no physical residual disability. As to any future emotional or psychological ill-effect, there was, I think, really no evidence, but Mr Hillman did not challenge the learned judge's approach to this issue.

60. Mr Ball gave comprehensive evidence in relation to his treatment of the respondent, and to the circumstances which had caused him to act as he had. At one point in his evidence Mr Ball said of the respondent that -

"Normally he would be able to cope with the crying of a child but with these additional pressures on him from his in-laws, and the resentment and anger that has built up, this I consider to be the trigger for his offences on this occasion, the child was crying and he was unable to deal with it."

64. Mr Ball's view was that it was his resentment and anger towards his in-laws which had caused the offences, and that he had embarked upon an inappropriate expression of that anger in his victimisation of the baby girl. He then said -

"He recognises that he has embarked upon quite deplorable and revolting behaviour. He is beside himself with guilt and shame from my impression, he has expressed what I judge to be genuine remorse and on the basis of all these things he has applied himself quite well to his treatment work with me."

68. Evidence was given by Sister Kathleen Keeley, a sister of Our Lady of Sion, Mr Sean Christopher Cusworth, Father Martin Sang, Mr Anthony Paiti, the respondent's sister and his wife. The evidence given by these witnesses did, I think, justify his Honour's statement that the evidence demonstrated that the respondent had lived a responsible and admirable life in the community, and all these witnesses attested to his remorse and concern for the infant victim. They also supported the conclusion that tensions and problems had existed between the respondent and his wife's family.

71. It is of course well established that particularly good prospects of rehabilitation may result in a shorter than usual non-parole period; see R. v. Bolton and Barker [1998] 1 V.R. 692, per Callaway, J.A. at 696-7; R. v. Houston and Stanhope (1982) 8 A.Crim.R. 392 at 399; and Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at 531. Mr Hillman accepted that the case made during the plea would have justified a lower than usual non-parole period, while none the less maintaining that both total effective sentence and non-parole period were manifestly inadequate.

74. Mr Marron submitted, and I would accept, that this is an extremely unusual example of the offence of rape. The features of the case were thoroughly examined by the learned and very experienced sentencing judge who sought additional psychiatric evidence before proceeding to sentence the respondent after the plea. It is apparent that in the exercise of the sentencing discretion his Honour was mindful of all relevant sentencing considerations, including just punishment and general and specific deterrence, and emphasised the gravity of the offences generally and the culpability of the respondent in doing so. His Honour was plainly concerned to facilitate what was regarded as genuine progress in rehabilitation. While the sentence was a very clement one, the circumstances advanced in mitigation were in my view unusually powerful and were plainly such as to justify the sentence being carefully structured in order to balance punishment and deterrence on the one hand against rehabilitation on the other.

77. In the exercise of this Court's powers under s.567A, it is important to bear in mind what was said by King, C.J. in R. v. Osenkowski (1982) 30 S.A.S.R. 212, at 212-3:

"Prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where the judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."

81. The real question before this Court is whether the sentence imposed by the learned judge was in all the circumstances within range. I have no doubt that the offence giving rise to count 3 would ordinarily require the imposition of a substantial period of imprisonment, and a significantly longer non-parole period. Having regard however to the very unusual circumstances of the present case, and bearing in mind also the learned judge's very careful approach to the structure of the sentence that was imposed, I am not persuaded that either the total effective sentence or the non-parole period was manifestly inadequate, or that the sentence was in any respect outside the available range. In all the circumstances I would therefore dismiss the appeal.

86. I shall ask my brother Chernov to give the next judgment.

91. I agree, for the reasons stated by Charles, J.A., that the appeal should be dismissed. I only wish to add these comments.

94. There is no doubt that the offences in this case, particularly the offence of rape, were very serious, all the more so because they were committed on a 19-months-old child. In my view, absent most unusual circumstances, the offence of rape warranted a significantly longer sentence of imprisonment and a longer non-parole period than was ordered by the learned sentencing judge. For the reasons given by Charles, J.A., however, I am satisfied that such unusual circumstances did exist in this case, so that the sentence for rape and the total sentence fell within the available range, although, in my view, they were at the lower end of that range. It is true that the non-parole period of six months against a total effective sentence of 30 months seems disproportionate, but again, having regard to the powerful mitigating factors operating in this case, it was in my view, open for his Honour to fix such a period.

97. Like Charles, J.A., I do not accept the Crown's contention that the learned sentencing judge gave too little weight to the seriousness of the offence, general deterrence or the need for denunciation. A fair reading of his remarks demonstrates that he balanced those matters against other proper, if not essential, sentencing considerations such as reformation, rehabilitation, the mitigating factors referred to and the need for just punishment. That his Honour took those matters into account in constructing the sentence is, in my view, almost beyond argument. In this case, the claim made on behalf of the Director that insufficient weight was given to them by his Honour is really another way of saying that the sentence is manifestly inadequate; it is really an inference that is sought to be drawn from the basic premise that the sentence is manifestly inadequate. If the sentence is not so inadequate, as is the case here, then the contention that his Honour did not give sufficient weight to the matters referred to earlier must fail.

100. In all the circumstances, therefore, it is my view that his Honour's sentencing discretion has not miscarried and the appeal should be dismissed.

105. I have given this matter the most anxious consideration - a consideration that has acknowledged that the sentencing judge was a most experienced senior judge, and also the opinions of the other members of this Court, which opinions I deeply respect. But, at the end of the day, after giving full weight to matters favourable to the respondent, I have come to conclude that the sentence on count 3, the total effective sentence and the non-parole period fixed lay outside the range of those properly available to the learned judge. Prominent among my reasons for so concluding are the maximum penalty available for rape, the age of the child, the respondent's position of trust, the nature of the penetration and the circumstance that the rape followed by a day a previous violent offence committed on the child.

108. I would allow the appeal. However, acknowledging that this is a minority view, there is, in my opinion, no point in saying more.

111. The order of the Court is that the appeal of the Director of Public Prosecutions stands dismissed.

114. A certificate will be granted to the respondent.