R v JMB & AWB [1999] VSCA 62

10. A plea in mitigation was made by counsel on behalf of J. and then by counsel on behalf of A. On 18 November 1998 both J. and A. were sentenced. J., who by then was 42 years of age, had no prior convictions. She was sentenced to a term of imprisonment of two years and three months and it was ordered that she should serve 15 months before becoming eligible for parole. Prior to the hearing the applicant had been on bail. A., who by then was nearly 43 years old, admitted four prior convictions from two court appearances in the Magistrates' Court at Cairns. On the first occasion, on 16 May 1980, he was convicted of wilful exposure (two charges) and aggravated assault upon a female and placed on probation for a period of two years. On the second occasion, on 5 August 1992, he was convicted of aggravated assault upon a female under 17 years of age and sentenced to imprisonment for a period of three months and placed on probation for two years. On 18 November 1998, on this count of incest, A. was sentenced to a term of three years and it was ordered that he serve two years before becoming eligible for parole. It was declared that six days should be reckoned as time already served.

13. As will appear, there was a third co-offender acting with J. and A. That was a female, to whom I shall refer simply as "L.". L. was born on 14 July 1973. She pleaded not guilty to a presentment containing one count, that she aided and abetted J. and A. in the act of sexual penetration with the complainant. L. was tried in the County Court at Melbourne and on 16 March 1999 she was found guilty. Having no relevant prior convictions, L. was sentenced on 9 April to a term of imprisonment of 21 months and it was ordered that she should serve nine months before becoming eligible for parole. It was declared that 24 days should be reckoned as time already served.

16. Both J. and A. now seek leave to appeal against the sentences imposed upon them.

19. I turn first to the circumstances of the offending. According to the summary of evidence provided to this Court for the purpose of these applications, on a night in mid-1997, that is, some time between 1 May and 1 August, J. and A., who was her de facto spouse, were entertaining the co-offender L. and her husband. J. and A., with L., took part in a discussion about the complainant, who was the daughter of J. from a previous relationship. At the time there were eight children remaining in the home of J. and A., three girls, including the complainant, born to J. from previous relationships, and five children, one girl and four boys, born to J. and A. The complainant was the eldest of these eight children, and the discussion centred on her interest in boys and the concern of the adults that she would start having sex with the possible consequence of pregnancy. This had been the subject of discussion between the four adults for at least two months before the night in question.

22. Some time after the discussion on this night, J. told the complainant to go into the master bedroom so that she could talk to her about something. Soon after the complainant and J. went into the room, A. and L. followed. A. locked the door, and J. told the complainant to sit down. The complainant was altogether unaware of what was about to happen but, with the door locked, she felt afraid. It was then that L. forced the complainant to lie down, while J. retrieved a vibrator from the bedside drawer. A. was standing at the doorway at this stage. J. uttered the words attributed to her by the complainant, "This is to teach you a lesson about being boy-crazy and what might happen to you if you have a boyfriend." A. then came over to the bed and forced the complainant's legs apart by grabbing her knees, while L. continued to hold her down by her arms. J. removed the complainant's underclothing. The complainant struggled but was held down with sufficient pressure to hurt her to some degree. Then J. showed the complainant the vibrator, saying, "I'm going to teach you a lesson." J. then inserted the vibrator, holding it there before removing it. While that was going on, A. and L. continued to hold the complainant while she screamed and struggled. When the vibrator was removed, they released their grip. Both A. and L. then left the room and J. told the complainant to take a shower.

25. It was L. who reported the offence to the police about nine months later. On 10 April 1998 the complainant was interviewed and so were J. and A.

28. The foregoing reflects the complainant's record of interview. During her interview J. at first said that it was L. who inserted the vibrator, and that doing so was L.'s idea. J.'s answers to later questions, however, tended to be more consistent with the account given by the complainant. In his record of interview, A. admitted to holding down the complainant's arms and one of her legs. He said it was J. who inserted the vibrator, but he also said that the idea was L.'s. At a subsequent record of interview on 16 April, L., who denied taking part in the offence, said that J. had inserted the vibrator.

31. Doubtless it was these variations that prompted the sentencing judge to say, and I quote from page 41:

" No doubt some distillation of the various accounts of what happened is justified, but for the purposes of sentencing the picture I have is one of this 13-year-old girl being manhandled by three adults and being forced to undergo this appalling sexual indignity. It was contended on the plea hearing that, although the crime of which you have been convicted is one of incest, which in the unfortunately typical case involves some form of sexual gratification, that feature is absent from this case. That submission is well founded. However, the offending conduct falls squarely within the terminology of the section creating the offence and your conduct is a particularly ugly example of a sexual assault involving unwanted sexual penetration of this girl's body by individuals, in your case, in a parental relationship with her."

35. The substance of this was not challenged on these applications, nor could it have been.

38. I turn now to J.'s application. The first ground argued on J.'s application was ground 6, that the sentencing judge erred in undervaluing the importance of the applicant's offer to give evidence against L. It cannot be said that the judge did not take this factor into account. It was referred to expressly in respect of both J. and A. His Honour said:

"You each have indicated a willingness to give evidence against [L]. This factor is of some mitigatory significance, and the sentence will reflect this co-operation. However, I repeat what I said on the plea hearing, that your giving of evidence against L. does not warrant a discount of the order given to accomplices, for instance, when such witnesses materially assist prosecutions and also run the risk of critical harm to themselves. Yours is not such a case."

42. J.'s counsel did not pursue in his oral submission the contention found in the written outline, that there was no warrant for drawing such a distinction and that in doing so the judge fell into a specific error. Instead he submitted that the sentencing judge undervalued this factor by overlooking that the evidence of J. was needed to reinforce the evidence of the complainant on the charge preferred against L. of aiding and abetting. I do not accept this submission. The discount for the offer of evidence against a co-offender must vary with the circumstances of the case, and that was what the judge himself was pointing out in what I have just quoted. His Honour took this factor into account, and he gave it weight according to the circumstances of this case. It is not possible, I think, to say that he undervalued it, unless the sentence is, in all the circumstances, manifestly excessive, in which case counsel's complaint on this point might provide one of the reasons. I deal later with the question of manifest excess.

45. The next ground argued was ground 8, that the sentence passed on J. was "manifestly disparate with" that passed upon L. On this head, J.'s counsel emphasised that J. had lost her daughters to welfare, a consequence far greater than anything suffered by L., who pleaded not guilty. He stressed too what he said was the role of L. in suggesting the conduct underlying these offences. Yet it must be remembered that L. was not related to the complainant, while J. was her mother. While the conduct of all involved must be deplored, J. was guilty of a very serious breach of trust, which could not be said to the same extent of L. It is true that J. had no prior convictions, but then L. had no relevant prior convictions; and while L. was only 24 at the time, J. was 41.

48. On the plea, there was tendered on J.'s behalf a report from a forensic psychologist, who mentioned the possibility of her having suffered some brain damage due to a head injury at school, possibly affecting her powers of judgment. The psychologist also expressed the opinion that J.'s offending behaviour "occurred as a consequence of constitutional limitations, limited judgment and long-standing psychological problems, rather than a propensity to criminality", a conclusion which in the view of the judge "to some limited extent lessened J.'s moral culpability". Whether or not this goes some way to explaining J.'s conduct in relation to her daughter, it does not excuse it, nor did counsel submit that it did.

51. In this instance, the roles played by the three co-offenders are difficult to distinguish. Such distinctions as are relevant to sentence arise more out of the circumstances of the offenders than out of the circumstances of the offending. As appears from the sentencing remarks of the judge (a different judge) who sentenced L. after her conviction on trial, she was sentenced "as an aider and abettor of the principal offender and her de facto husband" for an offence which "was a clear breach of trust by the parents and to a much lesser extent a breach of trust on L.'s part". Moreover, L. was pregnant, we were told, at the time of the trial, and she had other physical problems. Her movements were limited by reason of a back problem and she used a walking frame and a wheelchair, making imprisonment more difficult. What is significant for present purposes, I think, is that his Honour accepted "that there must be a degree of parity where a custodial sentence is imposed on [J.] and [A.]", and he regarded himself as "bound by [their sentences] for parity purposes". L. was sentenced on the basis that she played a lesser role.

54. In the circumstances it now seems somewhat ironic that both J. and A. should seek to take advantage of the lesser sentence imposed upon L. to argue that their sentences too should be less than they were. Postiglione v. R. [1997] HCA 26; (1997) 189 C.L.R. 295 allows that the argument can be put notwithstanding that L. was sentenced after J. and A. But bearing in mind the conduct involved of J. as the mother of the complainant and A. as her de facto husband, it does not seem to me that the difference in the sentences imposed, when compared with that imposed on L., betokens error. In particular, I am not persuaded by an argument that, because L. received a lesser sentence, the sentences imposed on J., or indeed upon A., are now relevantly disparate. J.'s counsel accepted that the test was whether "there is such manifest disparity that the applicant is entitled to entertain a legitimate sense of grievance". Suffice it to say that I do not accept that there is such manifest disparity.

57. The next grounds were argued together - grounds 2(i) and 7. Both concerned motivation. The first referred to the fact that the motivation for the offending was not sexual gratification but "a mistakenly held belief that it was in the victim's best interests", and the second, to the opinion of the forensic psychologist that the offending arose out of J.'s "constitutional limitations, limited judgment and long-standing psychological problems". Counsel put these together, contending that J.'s conduct could only be understood as flowing from her own limitations, and that that factor had been undervalued by the judge. Yet, as already mentioned, the opinion of the psychologist was regarded by the judge, and he said so expressly, as lessening J.'s moral culpability "to some limited extent". And while his Honour accepted the absence of sexual gratification as motivation, he still regarded this as "a particularly ugly example of the sexual assault involving unwanted sexual penetration of this girl's body" by individuals who, in the case of J. and A., were in a parental relationship with her. The sentencing judge referred too to the claimed concern by J. about the complainant's "unhealthy interest in boys", but his Honour concluded:

"In my view no legitimate concern held by a parent about a child of the complainant's age showing some sign of interest in the opposite sex could ever even approach an excuse for what you did."

61. I see no error in this. In my view there is nothing at all to suggest that the judge in some way undervalued those factors mentioned in grounds 2(i) and 7.

64. The next ground argued was ground 3, that the judge failed to take into account the impact of imprisoning J. when there were eight dependent children to consider. J.'s four daughters, including the complainant, have since this offending been placed by the Department of Human Services in care. The four boys of J. and A. remained at home and were still being looked after by J. and A. when they came to be sentenced on 18 November. Of course, the break-up of the family was a significant sentencing consideration, as counsel for J. urged, but it was recognised as mitigatory by the judge in his sentencing remarks. The judge did not ignore it. The weight to be given to such a consideration is essentially a matter for the sentencing judge. On the one hand it must be said that this was a serious breach of trust by a woman of 41 years of age and the natural mother of eleven children. On the other hand, the fact that there were eight dependent children was a countervailing factor which had to be brought into account. Ultimately that could only be by balancing the competing considerations, and I am not persuaded that the sentencing judge fell into error on that score.

67. That leaves grounds 2(ii) and 5. Ground 2(ii) refers to J.'s demonstrated remorse, her efforts at self-rehabilitation, her concern for the future protection of her children and lack of prior convictions. Ground 5 is that the sentence was manifestly excessive, and again the two grounds were argued together. Here, J.'s counsel stressed those considerations personal to J. which went in her favour, many of which I have already mentioned. Her plea of guilty was of course important. I have read again the judge's sentencing remarks and, unfortunately for the applicant, I cannot regard the sentence imposed on J. as manifestly excessive. Notwithstanding those factors that could properly be put in her favour, I cannot regard the sentence imposed on her of imprisonment for two years and three months as altogether outside the permitted range. At this stage I emphasise that I am not required to consider what sentence I might myself have imposed. The only question at this point is whether counsel has demonstrated some ground upon which this Court could interfere with the sentence imposed below. In my opinion, no such ground has been established, and the application of J. should be dismissed.

70. I turn to A.'s application. The first ground argued on behalf of A. was ground 6, disparity between the sentence imposed on A. and the sentences imposed on the other co-offenders, J. and L. Although counsel for A. contended that A. had played a lesser role "in the lead-up to the offence", meaning, I think, the discussion between L. and J. before the three adults entered the bedroom with the complainant, it is difficult, I think, to distinguish A.'s role when it comes to the offending. All three adults share responsibility for what happened in the room when the vibrator was used. It may be accepted, as A.'s counsel urged, that A. did not play a greater role in the offence than the other two offenders. But his personal circumstances were appreciably different. First, he had prior convictions, the details of which were not very clear and which were "quite stale", as the judge noted, though not on that account altogether insignificant. I simply note the description given in the psychologist's report that was tendered on behalf of A. on the plea, in which the previous convictions are described as "for matters of a similar nature", presumably based on information given to the psychologist by A. Nor is it altogether irrelevant, I think, that a partially suspended gaol sentence was imposed on the second occasion in Cairns. Secondly, although A. too pleaded guilty like J., some of the factors which served to reduce the moral culpability of J. were simply inapplicable in the case of A., and that must be obvious already from what I have said in relation to J.'s application.

73. Having listened to counsel, I cannot arrive at the conclusion that the sentence imposed upon A., which as to both head term and non-parole period was nine months longer than that imposed upon J., was unjustifiably disparate. In dealing with J.'s application I have dealt with the comparisons to be drawn with L. In all the circumstances, ground 6 was not made out.

76. The next ground argued on behalf of A. was ground 7, that the antecedents of A. did not justify such disparity between the sentence imposed on A. and the sentences imposed upon the co-offenders. There is nothing more to be said about this. It is necessarily wrapped up in ground 6. There is no specific error in the sentencing judge's referring to the previous convictions, and for the rest it must depend upon whether there was manifest disparity, and I have already concluded that there was not.

79. That leaves in relation to A. only grounds 2(i) and 2(ii) which were argued together. Ground 2(i) referred to the fact that the object was not sexual gratification but a mistaken belief that what occurred was in the complainant's best interests, and ground 2(ii) to A.'s remorse, efforts at rehabilitation and concern for the future protection of his children. These things were said to have been undervalued by the sentencing judge. As was said in argument, it can readily be accepted that this is not an ordinary case of sexual penetration, because sexual gratification of the offender was absent. But, as was pointed out in R. v. Sessions [1998] 2 V.R. 304 at 315, the absence of sexual gratification of the offender may do little to alter the effect on the victim. The essence of this offence, in these particular circumstances, lay in the forceful imposition on a young girl of what the judge described as "an appalling sexual indignity" and, to quote his Honour again, one involving an "abuse of the complainant's psyche and person justifying the community's condemnation" - and this by one who, in the case of A., stood in a position of parental influence in relation to the complainant. It is true that J. was charged with an offence under s.44(1) of the Crimes Act 1958, while A. must have been charged under s.44(2), but the maximum term for both offences is 20 years, and it is difficult to distinguish between the abuse of trust involved in the offending of J. and that involved in the offending of A.

82. I have had regard to counsel's submissions on this application and considered those factors otherwise personal to A. which went in his favour. Among this the plea of guilty must figure, and the offer of assistance in relation to the prosecution of L. There were also his remorse and the steps to rehabilitate himself. But in the end, whether the judge gave insufficient weight to such factors must depend upon whether, in our view, the sentence was manifestly excessive, and in all the circumstances I do not so regard it. Whether high or not, it was not outside the permitted range.

85. In these circumstances, in my opinion, the applications of both J. and A. should be dismissed.

98. The formal order of the Court will be that the application for leave to appeal against sentence in each case is dismissed.