R v Jobling-Mann [2000] VSCA 3

Court of Appeal (Vic)|2000-02-02|Before: WINNEKE, P., BATT, J.A. and HAMPEL, A.J.A.

The applicant has now sought leave to appeal against the sentence imposed. The first ground is that the sentence is manifestly excessive. The remaining grounds, which contend that the judge either gave excessive weight or too little weight to various factors or sentencing principles, seem to me to be merely particulars of the first ground argued.

The relevant facts surrounding the commission of the offences are fully canvassed in the careful sentencing remarks of the judge and it is unnecessary and undesirable to fully rehearse them. It is, I think, sufficient to say that the applicant was at the relevant time a mature woman of 34 years and each of the victims, whom she seduced, was barely 14 years. In an act of charity, the mother of the complainant referred to in the first count (whom I shall call "the first complainant") took the applicant into her home when told by the applicant, a long-time acquaintance, that she had been evicted from her home and had nowhere to live. It was not long before the applicant developed an attachment to and fondness for the first complainant, who was one of four siblings. The mother of the complainant relied upon the applicant to take responsibility for her children on occasions when she was absent from the home, and the applicant took advantage of those occasions to allow the attachment that she had with the complainant to blossom into an unnatural closeness and, ultimately, a sexual liaison which was consummated in various bedrooms of the house. The second complainant, who was a friend of the first complainant, was also taken advantage of by the applicant on two occasions when he visited the home whilst the applicant was present. I designedly use the words "taken advantage of" notwithstanding that the boys were consensual participants and were no doubt acting out of a sense of bravado and immature adventure. As his Honour pointed out during the course of his sentencing remarks, the applicant acted in breach of the trust reposed in her by the community and by her long-time friend in using the children as a vehicle for her sexual gratification. In the eyes of the law her conduct is, in my view, no more acceptable than would be the conduct of a 34-year-old male who, in similar circumstances, took advantage of two 14-year-old infatuated girls. When her activities were ultimately revealed, the applicant readily denounced her conduct as immoral and unworthy. I should say that, in suggesting as he did, that the applicant had breached the trust reposed in her by her friend, I do not understand his Honour to have been saying any more than that the applicant had, by her conduct, betrayed her friend's confidence. He was not intending to suggest, in my view, that the applicant had committed the more aggravated offence of engaging in sexual penetration of a child under her care, supervision or authority. Although the applicant had sought leave to add a further ground alleging such a specific error, counsel, correctly in my view, did not press the Court to grant such leave.

The applicant was no stranger to the law, having been convicted in 1996 and 1997 for various offences of dishonesty in respect of which she had been given chances by the court to redeem herself through the imposition of non-custodial sentences. Because this previous criminal history, however, was different in character from the offences which fell to be punished on this occasion, his Honour was disinclined to allow it to influence the sentences which he imposed.

There were a number of factors in the personal history of the applicant which were put forward to explain and to ameliorate her conduct. She clearly came from an unfortunate background in the course of which her childhood had been disrupted by a violent father and during which she herself had been sexually abused by her uncle. She had previously been married, in the course of which marriage she had borne two children. At the time when she fell to be sentenced, those children were in the custody of their father. As a result of the disclosure of these offences her access to her children had been denied. For whatever reason, she had developed what appears to have been a fragile personality for which she had been referred for psychiatric assessment on a number of occasions in the 1990's. The material before his Honour suggested that she suffered from a borderline personality disorder which resulted in low personal esteem. Her dependency upon the love and affection of others was perhaps reflected in the fact that, at the time when she stood for sentence, she was living with a man who was a substance abuser and living in circumstances which could scarcely have been conducive to her appropriate rehabilitation. It was not surprising, therefore, that the applicant, whilst condemning her conduct as inappropriate and immoral, volunteered that she had engaged in it as a response to feeling "wanted and loved".

All of these matters to which I have referred obviously provoke sympathy for her plight. They were, however, the subject of close attention by the sentencing judge, who, whilst giving weight to them, nevertheless regarded the offences as so serious as to warrant terms of immediate imprisonment. His Honour did not disregard the applicant's prospects of rehabilitation but took the view that those prospects would be best catered for by fixing a relatively short non-parole period following which her progress could be monitored by the Adult Parole Board, to whom he referred the various reports which had been placed before him.

On this application Mr Thomson submitted, in his customary attractive style, that the sentence which his Honour had imposed was manifestly excessive. I will not, I think, be doing an injustice to his arguments by saying that, in their essence, they contend that his Honour over-stated the gravity and moral culpability of the applicant's conduct and under-stated the relevance of factors which mitigated her offences. In this way, Mr Thomson submitted, his Honour had come to the false conclusion that the applicant's conduct merited immediate incarceration. Thus it was contended that his Honour had given too little emphasis to the applicant's immediate confession, her obvious contrition and her early plea. It was further said that, in the light of the applicant's mental state, his Honour had been wrong in classifying her as "a person in control of the situation". Rather he should have seen her as a person whose fragile mental state and need for love and affection made her vulnerable to the situation in which she found herself. His Honour, Mr Thomson submitted, should have seen the applicant not so much as the exploiter but the exploited, and hence moderated his views of the corruptive influence of the applicant's conduct and the need for general deterrence to play a large part in the purpose of punishment. In short, it was said, a proper assessment of the material before his Honour should lead this Court to the view that he was in error in not opting for a non-custodial sentence.

Notwithstanding the able submissions of counsel, I have come to the conclusion that there is no basis upon which this Court can interfere with his Honour's sentencing disposition.

All of the matters which have been raised on this application were matters which had been raised before and considered by the learned judge in the course of his careful and ample sentencing remarks. It is necessary to state once again that this Court does not have the luxury of re-sentencing her according to what it believes might have been an appropriate sentencing disposition had it been entertaining the matter at first instance for itself. It can only interfere if it concludes that the judge's sentencing discretion has miscarried in some material respect or if it concludes that the sentence imposed was clearly outside the range of dispositions available to the sentencing judge. His Honour was clearly conscious of those personal factors which have been impressed upon this Court as matters which should have driven him to impose a sentence different from the one he did. But, at the end of the day, it was for his Honour to determine whether those factors were of sufficient weight to warrant a non-custodial disposition. He concluded that they were not and that the nature of the offences and the circumstances in which they were committed warranted the imposition of the sentence which he imposed. I can discern no error in the reasons given by this very experienced judge for concluding as he did; nor in my view has it been demonstrated that the sentences imposed were beyond the range of those legitimately available. Accordingly the application should be dismissed.

In my opinion the sentencing remarks of the County Court judge in this case cannot be faulted: they are comprehensive, fair and accurate. None of the intended grounds of appeal is, I consider, made out. In particular, whilst his Honour did not mention s.5(4) of the Sentencing Act 1991, it cannot be doubted that this very experienced judge was aware of it and of the principle that it embodies. It did not require him to impose a sentence of a kind other than that which he did impose. Grounds 2, 3 and 4 are really particulars of ground 1, which alleges that the sentence is manifestly excessive. When regard is had to the fact that there were two victims, to the fact that each had only just turned 14 years of age, to the fact that for at least one of them the first offence against him was the first time he had engaged in sexual intercourse, to the deliberate and knowing nature of the applicant's wrongdoing (as revealed in the record of interview and by a remark she made to the first complainant after the first occasion of intercourse with the second complainant), and to the breach of her friend's confidence, I am of the opinion that the sentence was well within the range open to his Honour.

For the reasons I have given and those given by the President, I too would dismiss this application.

The formal order of the Court is that the application for leave to appeal against sentence by Angela Jobling-Mann is dismissed.

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