R v JAC [2000] VSCA 130

10. The plea was heard on 22 June 1999. The appellant had no prior convictions. A victim impact statement made by KSC on 10 June 1999 and one made by LMW on 21 June 1999 were both received in evidence, and the victims were not cross-examined on their statements. A report made by Mr Jeffrey Cummins, a forensic psychologist, dated 22 February 1999 was tendered on behalf of the appellant, as also were a number of references as to his character. During the plea, seven witnesses were called to give oral evidence of the appellant's good character, and I shall turn to what they had to say later. Counsel for the appellant urged the sentencing judge to impose non-custodial sentences on the first two counts on the presentment so as to avoid the appellant being sentenced as a serious sexual offender on the third and fourth counts. The maximum penalty for indecent assault at the relevant time was five years' imprisonment and for incest was 20 years' imprisonment.

13. On 25 June 1999 the judge sentenced the appellant on count 1 to 12 months', on count 2 to 12 months', on count 3 to three years', and on count 4 to five years' imprisonment respectively. His Honour ordered that the sentences on counts 1 and 2 be served concurrently inter se and the sentences on counts 3 and 4 be similarly served concurrently. The sentences on counts 1 and 2 were made cumulative on the sentences on counts 3 and 4. The total effective sentence was therefore six years' imprisonment and his Honour fixed a non-parole period of four years. The appellant was declared a serious sexual offender under s.6B of the Sentencing Act 1991.

16. The appellant now appeals on a large number of grounds to which I shall turn shortly. On 23 March 2000 an application was heard by the President for leave to appeal under s.582 of the Crimes Act 1958 and his Honour duly granted leave.

19. The facts giving rise to these offences were as follows. The two counts of indecent assault relate to two separate incidents with KSC occurring between 1 June 1986 and 1 September 1986. KSC, who was born on 8 October 1971, is the daughter of the appellant's first marriage which ended when her mother separated from the appellant, KSC then being nine years old. The indecent assaults occurred at a time when KSC's mother had been living apart from the appellant and KSC was spending time with him at his hotel in Eaglehawk. She was then 14 years old. On the first occasion the appellant was initially massaging the victim's back but then gradually moved his hands to the front of her body and started massaging her breasts. This continued for some five minutes until she protested and pulled away from him in disgust. On the second occasion KSC was in bed at the hotel in Eaglehawk when the appellant got into bed with her. He forced his hand under her hip and began to rub the outside of her vagina, continuing to do so for some time until she told him she had to get up and go to school. She felt sick and was in pain afterwards.

22. The first of the representative counts of incest related to incidents occurring over an 11-month period in 1989 when LMW was aged 14. She was born on 9 February 1975 shortly after the appellant had ended his relationship with her mother. The appellant then had no contact with her until she was 13 years old when she started spending weekends with him at the hotel at Eaglehawk. The first night LMW stayed at the hotel, the appellant had intercourse with her. He had closed the hotel for the night. He gave her a couple of drinks of vodka and coke and showed her in a cupboard two guns which he told her were loaded. She had trouble sleeping so the appellant suggested she use his bed. LMW accepted thinking he would sleep in another room. Shortly after she got into bed, the appellant joined her. He removed her underpants and had sexual intercourse with her, ignoring her protests and telling her to shut up, and that it was better him doing it than someone else. LMW was then a virgin, and the intercourse caused pain in her stomach, legs and vagina. After intercourse, the appellant told LMW to have a shower. When he took her home the next day he warned her not to tell anyone what had happened, or the guns he had shown her the night before might be used on her mother.

25. The incidents represented in count 4 took place over an 11-month period in 1990, when LMW was 15. The appellant had encouraged LMW to leave school at the end of 1999 saying he would secure employment for her as a secretary. Her academic results had suffered considerably during the year. The hotel had closed down at this time and the appellant moved in with a friend. LMW said the appellant forced her to move in with him and thereafter intercourse was almost a daily occurrence. Sexual activity ceased late in 1990 only when a friend of LMW's moved into the flat.

28. The appellant was arrested and interviewed by police in relation to the incidents with LMW on 17 August 1998. He was co-operative when interviewed, admitting the offences. He admitted he had intercourse with LMW at the hotel and that intercourse with her occurred as many as 100 times, possibly more. The appellant was interviewed again on 28 September 1998 in relation to the incidents concerning KSC. On this occasion on legal advice he refused to comment. The victim impact statements made by KSC and LMW contain detailed information as to the emotional trauma both have suffered as a result of the appellant's offences. KSC refers to severe depression, anxiety and panic attacks, post-traumatic stress, eating disorders, attempted suicide and constant suicidal thoughts among other effects. LMW refers to needing the ongoing use of anti-depressants over a period of years, having intense counselling to cope with severe depression, confusion, fear, outbursts of anger and at times an uncontrollable temper. She also complains of having felt suicidal, of suffering chronic post-traumatic disorder and of having been terrified of what her father would do to her since she disclosed the abuse. She now finds it extremely hard to trust people and to forge good relationships. Her ongoing consequences up to the month in which the appellant was sentenced included intense fear, frustration and anger, and that her father, who she trusted, took her innocence away and "destroyed my life and that of my family's". Neither of the victims was cross-examined on the victim impact statements and, during the plea, the only substantial challenge made to the statements of the victims was that the appellant's counsel claimed, in relation to LMW, that there had been no element of threat or that the appellant had imposed on her. As it was put, "My instructions are a denial completely of any improper threats or importuning other than taking advantage of a young girl's youth obviously and his position".

31. The report of Mr Cummins in relation to these events states that the appellant, in his consultation with Mr Cummins, was emphatic that he and LMW formed a sexually intimate relationship and one which was mutually consensual. According to Mr Cummins, the appellant thought three significant factors influenced his offending with LMW. The first of these was that he was drinking heavily on a daily basis, secondly he said that at the time he did not have a regular age-appropriate sexual partner, and thirdly he said that he did not regard her as his daughter because he had had no contact with her until she was around 13 years of age. When dealing with the question of remorse, Mr Cummins said that the appellant spoke in a manner indicating he does now feel remorseful, but his remorse was complicated by the fact that he believes he was in a relationship with LMW. As to his drinking, Mr Cummins said that testing showed the appellant has had a drinking problem and also suggests he has been on the verge of developing alcoholism. On the question whether the appellant might re-offend, Mr Cummins said -

"I would not expect him to re-offend in the manner which is the subject of the present charges. I express this view partially because his offending behaviour appears to be in significant parts situationally motivated and also motivated as a result of his drinking habits at the time in question. Nonetheless, I think it would be very prudent for him to return for follow-up counselling. It may even be appropriate for him to participate in a sex-offender's treatment program although I would not expect him to re-offend even in the absence of participating in such a program."

Mr Cummins also said that it was clear, based upon the appellant's admissions, that he did engage in sexual grooming behaviour towards both victims.

36. The appellant now appeals on a large number of grounds. Mr Holdenson, who appeared for the appellant in this Court, with his usual succinctness divided the grounds into five separate groupings, and I shall deal with them accordingly.

40. These grounds complain that the judge failed to give sufficient weight to the appellant's early plea of guilty and the uncontested committal hearing and to the evidence of remorse of the appellant. Mr Holdenson argued that the effect of the pleas of guilty was significant, since the complainants were saved from the ordeal of giving evidence and much court time was saved. Accordingly these pleas of guilty should have led to a substantial discount in mitigation of penalty. They were entered at an early stage, and the committal proceeding was uncontested. There was, he submitted, clear evidence that the appellant was particularly remorseful for his wrongdoing, which was also relevant to the magnitude of the discount to be given in respect of the pleas of guilty. Accordingly it was submitted that the manner in which the sentencing judge imposed sentence showed that he had failed to have sufficient regard to these pleas of guilty and the circumstances surrounding the same and their consequences.

44. By these grounds it is claimed that the judge failed to give sufficient weight to the evidence of good character of the appellant, that his Honour erred in rejecting or disregarding the evidence of the character witnesses, and in doubting if the character witnesses were fully informed of the appellant's activities. Ground 16 claims that the judge erred in determining that the circumstances of the crimes rendered the evidence of the appellant's absence of prior convictions and his good character of little weight in the exercise of his discretion. Mr Holdenson submitted that much character evidence was called on behalf of the appellant which was not contradicted in any manner, was not the subject of challenge by the prosecutor on the plea, nor did the prosecutor make any submission to the judge that this evidence should either be disregarded or in the alternative given little weight. In those circumstances, Mr Holdenson submitted, it was not open to the judge to doubt that the character witnesses were fully informed of the appellant's activities and that his Honour was not entitled to treat the absence of prior convictions or the character evidence as of little weight in sentencing. Mr Holdenson also submitted that since this evidence was unchallenged, his Honour was obliged to give some warning to the appellant's counsel that he was disposed not to accept this evidence at its face value.

48. These grounds claim that the sentencing judge failed to give sufficient weight to the appellant's rehabilitation, to his lack of prior convictions and to his conduct since the commission of the offences. Mr Holdenson submitted that the appellant was aged 55, and that the evidence showed not only that he had no prior convictions, but also had not engaged in any criminal conduct after the offences. It was many years, he submitted, since the appellant had engaged in the criminal conduct in question. He was clearly a very different person from the one who had committed the offences and in the intervening period he had made some contributions to his community, making a genuine and serious attempt to give something back to the community. It was submitted that these matters were particularly relevant to the weight which should be given to a number of the purposes of sentencing such as retribution, specific deterrence, prospects of rehabilitation and to ensure that the sentence should not prejudice the rehabilitation of the offender. They were also, it was submitted, of particular relevance to the fixing of the non-parole period.

52. By these grounds it was alleged that the judge failed to give sufficient weight to the evidence that the appellant was no longer a threat to the community and was not likely to re-offend. Mr Holdenson pointed to the fact that sworn evidence was given that the appellant was unlikely to re-offend and this was a matter relevant to the amount of weight to be given to the sentencing objective of specific deterrence. It was also relevant to his prospects of rehabilitation. The manner in which the sentence had been imposed made it clear, so it was submitted, that his Honour had not imposed sentence in accordance with principle.

56. These grounds claim that in all the circumstances the individual sentences, the total effective sentence and the non-parole period were all manifestly excessive and that the judge had given inappropriate weight to the victims' statements and their victim impact statements. The submission was that, based on the previous contentions, the overall sentence imposed was manifestly excessive being out of proportion to the appellant's misconduct and outside the range of sentences appropriate for offences of this nature.

59. In dealing with these submissions I shall take first the claim of remorse. The judge made express mention of the remorse referred to by Mr Cummins. His Honour had also heard the evidence of the witnesses, some of whom (Mrs Gray, Mr Andison and Mr Stewart) had attested clearly to the appellant's remorse and rehabilitation and his remedial activities as a Bowen Therapist in the Bendigo district. On the other hand his Honour had made a series of findings, none of which are today challenged, as to the circumstances of the offences, particularly in relation to LMW. The judge also had before him the victim impact statements, which had been accepted in evidence without cross-examination. His Honour had before him Mr Cummins's report, including the guarded comments made as to the appellant's remorse and the question whether he might re-offend.

62. One difficulty with the appellant's case of remorse and, indeed, rehabilitation and good character, was his continuing claim that his offending in relation to LMW had been "a consensual continuing relationship" formed without importuning or threats. On the unchallenged findings made by the judge as to the way in which these offences commenced and the manner in which they were continued, that claim was nonsense. His Honour was plainly entitled to doubt whether the full circumstances of the offences had been explained by the appellant to all the character witnesses, having regard to the way he had explained them to Mr Cummins, and as the appellant's counsel had attempted to argue the matter before the judge. The appellant's explanation of his offending in relation in particular to LMW was equally inconsistent with the contents of the victim impact statement made by her. LMW's victim impact statement (to the extent that it was unchallenged) is, of course, wholly inconsistent with the "relationship" between the appellant and LMW having been of the nature described by him.

65. The character evidence called by the appellant's counsel in the course of a very well-presented plea was extensive. It was largely made up of persons with whom the appellant had come into contact through his work as a student and practitioner of Bowen Therapy, a type of massage applied to a person's body to stimulate the immune system and remedial responses in order to heal. Their evidence was strongly to the effect that the appellant had become a skilled practitioner of this form of therapy and that he had treated these witnesses or their relatives for ailments such as Attention Deficit Disorder with a considerable degree of success. The last witness gave evidence that she had formed a close relationship with the appellant and had become his de facto partner. She also was now a student of Bowen Therapy and they intended to set up practice together. The second-last witness had been a senior detective with the Victoria Police Criminal Investigation Branch in Bendigo and gave evidence of his knowledge of the appellant over a period of some ten years. Several of these witnesses spoke of his dealings with the young in very supportive terms, as well as his good works in the community. The evidence of the appellant's rehabilitation in this respect was indeed impressive.

68. It is clear that the judge did not ignore this evidence. In so far, however, as complaint is made that his Honour doubted that the witnesses had been told the whole story as it was described in the judge's reasons for sentence, his Honour was, I think, plainly entitled after hearing the evidence to retain such doubts.

71. Nor did his Honour ignore the pleas of guilty, the time at which they were made, the absence of prior convictions, or the fact that some remorse had been expressed by the appellant. Each of these matters was expressly taken into account.

74. The appellant's evidence certainly established that he had been of good character before these offences were committed, and that he had committed no crime in the last nine years. That, I should say, is a situation not infrequently encountered in this Court in the consideration of offences of this nature. The appellant had demonstrated a considerable degree of rehabilitation in his treatment of patients by the use of Bowen Therapy, frequently for little or no charge. None of this was ignored by the judge. But, on the other hand, his Honour's assessment of the appellant's culpability on each of the offences was damning indeed. The offences, and it was not contended that his Honour was not entitled so to characterise them, were very serious. They were repeated, in LMW's case, on more than a hundred occasions, and lasted many months. Both victims now still suffer significantly, more than nine years afterwards, and his Honour would have been entitled to take the view that they will be seriously scarred for life in consequence. His Honour, of course, was required to weigh the evidence of rehabilitation, and the appellant's conduct both before and after these offences. It seems to me that his Honour carefully did so.

77. In so far as his Honour expressed himself as giving little weight to the evidence of the character witnesses, Mr Holdenson placed reliance on R. v. Duong[1], R. v. Hall[2], and R. v. Storey[3], arguing that his Honour should have given counsel some warning that he was considering taking what counsel dubbed "a contrary view" on these matters. There is nothing in this point. It had been clear from early in the plea that his Honour was concerned by the contents of the victim impact statements, and that these were, as I have said, quite inconsistent with the version of the offences being submitted by the appellant's counsel. The judge's findings as to the circumstances of the offences were based on all of the material before him including the depositional statements, and are not now challenged. I think his Honour was not, in these circumstances, obliged to warn defence counsel that the somewhat optimistic views of the character witnesses might not be accepted without reservation, notwithstanding that the prosecutor chose not to cross-examine these witnesses.

80. Mr Holdenson took particular objection to the statement of the judge in sentencing reasons that "I doubt if the character witnesses were fully informed of your activities, and in any event the circumstances of these crimes rendered these considerations of little weight in the present exercise", submitting that that statement was inconsistent with what had been said by Crockett and Southwell, JJ. in Hall[4]. I do not agree. Their Honours in Hall were referring to a situation where the sentencing judge had made reference to an offender's plea of guilty and co-operation with prosecuting authorities as having only "limited mitigatory effect" and being "outweighed" by other aggravating circumstances which there existed. A plea of guilty is, of course, a matter to which a sentencing judge is obliged to have regard by s.5(2)(e) of the Sentencing Act 1991. One reading of his Honour's words is that the question whether the character witnesses were fully informed was of little weight in all the circumstances of the offences, a second being that his Honour took the view that in all the circumstances the character evidence and the absence of prior convictions were of little weight. Whichever of these interpretations is correct is, I think, not really to the point. His Honour plainly did not disregard the absence of prior convictions or the character evidence and the evidence of the appellant's rehabilitation (to which the character evidence was principally directed). The last was a matter to which the judge later returned in his sentencing reasons, describing it as the most significant factor put forward in the plea.

83. On the notoriously difficult question whether the appellant might re-offend, his Honour was not prepared to accept the psychologist's view that the appellant was unlikely to be a repeat sexual offender. Some of the character witnesses put this more strongly in their evidence. Mr Cummins's view was, however, a guarded one, as the passage already quoted shows. His two stated bases for this view were first that the appellant's offending had been in significant part situationally motivated, and secondly the appellant's then drinking habits. The appellant himself had given these factors as part of the reasons for his offending, saying as to his situation that he did not then have a regular age-appropriate sexual partner. The appellant had not had a stable relationship history by any means (the evidence before the court showed not less than seven such relationships of varying duration, if one includes LMW, the most recent having begun only in 1999). Mr Cummins considered the appellant emotionally fragile and said he had previously had a significant problem with alcohol. It was inevitable in all the circumstances, in my view, that he would be incarcerated for a period of years, and his Honour would, on the evidence, have been perfectly justified in querying whether the situation that provided the motivation for his past offences might recur, and also the drinking that accompanied his offending. The evidence of Mr Edmonds was that the appellant's ability to practise Bowen Therapy might be severely limited by his being convicted of these offences and, no doubt, by his being required to serve a period of imprisonment. In my view no error is shown in the judge's comments in this regard also.

86. The question remains whether the sentences are manifestly excessive, which requires brief further consideration of all the previous arguments. The offences were very serious, most particularly counts 2, 3 and 4. I agree with the judge's assessment of the culpability of the appellant. The consequences for the victims have also been shown to be very serious. The offences were committed over a period of years and in the case of count 4 represented a large number of acts of incest. They were committed in breach of trust and in circumstances where the appellant was forceful and manipulative in achieving his purpose, having first engaged in sexual grooming behaviour towards both his daughters. His remorse is, as Mr Cummins put it, "complicated by the fact that he believes he was in a relationship with" his daughter LMW. As to the seriousness of the offences, in R. v. Sposito[5], Marks, J.[6]:

"A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim. An even more alarming revelation is the frequent failure in these cases of support for the victim from other members of the family."

90. In all the circumstances only the penalty imposed in relation to count 1 could, in my view, be described as severe; nonetheless it was, I think, within range. The other individual penalties, I should have thought, are well within range, even lenient. Both individually and in the total sentence imposed, the sentences seem to me within range and to include sufficient provision for all necessary discounts, taking into account all the matters so forcefully argued today by Mr Holdenson.

[2] (1994) 76 A.Crim.R.,454 at 469.

[5] Court of Criminal Appeal, unreported, 8 June 1993.