R v L C C [2006] VSCA 33

2 The appellant, who was born on 29 December 1938, pleaded guilty on 3 May 2005 in the County Court at Melbourne to a presentment alleging 14 counts of sexual penetration of a child under the age of 16 and two charges of committing an indecent act with a child under the age of 16. The maximum penalty for these offences was in each case 10 years' imprisonment. The appellant had no prior convictions.

3 Two of the counts of sexual penetration were representative counts (counts 13 and 14). On each of these counts the judge sentenced the appellant to four years' imprisonment and count 13 became the base sentence. On counts 15 and 16, both sexual penetration counts, the judge imposed three years' imprisonment. On counts 4 to 11, all sexual penetration counts, the judge imposed in each case 30 months' imprisonment; on counts 1 and 2, both sexual penetration counts, the judge imposed two years' imprisonment; and on the two counts of committing an indecent act with a child (counts 3 and 12) the judge imposed 18 months' imprisonment. Orders for cumulation brought the total effective sentence to nine years and two months' imprisonment. Her Honour set a non-parole period of six years and two months. The judge declared the appellant a serious sexual offender after conviction on count 3.

4 The appellant was granted leave to appeal by a judge of this Court on 4 November 2005. He now appeals on the grounds that -

1. The individual sentences, the orders for effective cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive, crushing and in breach of totality.

2. The judge erred -

(a) in failing to make any allowance for the fact that the complainants had willingly initiated several episodes of sexual contact with the appellant; and

(b) in failing to make specific findings on that issue.

5 The circumstances giving rise to these offences were as follows. The two victims of the appellant's offending were sisters, C and N, both of whom were aged 14 and 15 during the period when the offences were committed, which was between December 2001 and June 2004. Their father died on 10 February 2003, in the middle of this period. The appellant lived next door and some time in 2001 he and his partner started building a house on their block. Early in 2001 the elder sister, C, began helping the appellant in the process of clearing his block. She did so to earn some money, as the children were not given pocket money and there was little money in the household. N also began helping the appellant, stacking bricks and moving logs.

6 Some time between December 2001 and January 2002, the appellant asked for C's help and she went next door and started moving bricks. It began raining, and the appellant told C to get into his car. The appellant put his hands down C's pants and then inserted his fingers into her vagina. C said she was too scared to move or say anything. After he stopped, the appellant gave C $20 and told her not to say anything. C resumed working for the appellant and told no one. (Count 1.)

7 Two weeks later, C was again helping the appellant building his house. She was sitting on some scaffolding against a wall, when he started touching her on her vagina. He pulled down her pants and licked her vagina with his tongue for some minutes. He gave her $20. (Count 2.)

8 Around the end of January 2002, C was helping the appellant again in his house and was on the second level moving concrete. The appellant touched her on the outside of her vagina and on her breasts. (Count 3). He told C's brother and sister that their help was no longer required and again started touching C on her bottom and vagina on the outside of her clothes. He pulled down her pants and pushed his penis into her vagina. He used no condom and ejaculated inside C. He touched her again on the breasts and, having finished, gave her $40 and told her not to tell anyone. (Count 4).

9 At the end of February 2002, C was again working on the second floor of the house and playing with her brother. The appellant told him to leave. Whilst C was doing up her shoe laces, the appellant came up to her, started touching her, and then had sexual intercourse with her. Again he used no condom and ejaculated inside her. C was still 14 years old. The appellant gave her $40. She did not tell anyone, as she was too scared. (Count 5.)

10 In mid-March 2002, C was working at the property and the appellant laid her on the floor and had sexual intercourse with her, paying her $40. (Count 6.) Counts 7 to 11 related to further occasions, always on the appellant's property, in the house or the garage, when the appellant had intercourse with C. On each occasion he gave her amounts varying between $40 and $60. The last time sexual intercourse occurred between them was on 20 May 2003. C stated that at no time during the offences did the appellant converse with her. On 7 August 2004, C confided what had been happening to family friends and the police were called. C spoke with police the next day.

11 N, the younger sister, was helping the appellant with duties around the house in late 2002. Part of this work involved helping C clean the house by vacuuming and mopping once a week. N was paid sums of around $15 for this. Late in 2002, she was vacuuming, and as she was walking upstairs the appellant put his hand up her skirt and touched her on the bottom under her underpants. She told him to stop, but did not tell anyone else. (Count 12.)

12 A record of interview was conducted with the appellant on 24 September 2004. He then admitted having oral sex and then vaginal sex with N in various locations, some ten to twelve times. This gave rise to count 13, a representative count relating to penile penetration, and count 14, a representative count relating to oral penetration.

13 In March 2003, N, then aged 14, went to the appellant's house to do some cleaning. The appellant had sexual intercourse with her in a walk-in wardrobe of the main bedroom. (Count 15.) Count 16 related to an event in June 2004, when N, then aged 15, went to the appellant's house to clean. The appellant touched her on the breasts under her clothing and tried to kiss her. She was told to lie down in the walk-in wardrobe. She did so because, she said, "he had a look on his face". The appellant took off her pants and had sexual intercourse with her. When he was finished he gave her $30.

14 In her sentencing reasons the judge addressed various mitigatory factors, including the appellant's early plea of guilty, remorse which was to be inferred from this plea, and his lack of any prior convictions. However, her Honour refused to accept that the alleged consent of the victims constituted a mitigatory factor. Far from regarding this factor as mitigatory, the judge said:

"You were, on any view, stating that you were prepared to exploit not only their age and their vulnerability in relation to your position, but further, that you perceived that because they were young girls who had very little finances, you could and did exploit their financial vulnerability as well. You preyed upon both of them in this way, and in my view it does make this offending all the more reprehensible. On any view, you exploited these young girls and took advantage of the imbalance in the power relationship between yourself and them."

15 Under ground 2, Mr Wraight argued that while the judge accepted that the complainants were paid for sexual contact, her Honour had apparently regarded this as merely an aggravating factor. Accordingly, the judge failed to attribute any mitigatory weight to the fact that the complainants had willingly engaged in sexual contact for money, and had erred in having done so. Alternatively, it was put that the judge simply failed to make sufficient specific findings on this issue, findings which were necessary in the circumstances. The appellant's account on this issue was relevant to factors such as his moral turpitude and the likelihood of re-offending. During the record of interview, the appellant had conceded that he initiated sexual contact with each complainant, but asserted that they subsequently sought to have intercourse with him, on the understanding that he would pay them in return. The prosecutor did not accept this in opening the facts at the plea. The appellant's version, it was argued, was, however, consistent with the form of the presentment, the conduct of the complainants, and the absence of any statement from the complainants rebutting his account. The judge, so the argument ran, failed to make sufficient findings on this issue or treated the matter as having no mitigatory relevance, and accordingly erred.

16 In response, Ms Cannon for the Crown argued that the complainants were both children who, even on the appellant's admissions in his record of interview, had initially been approached by him. He had exploited the girls' youth and financial vulnerability for his own sexual gratification. In doing so, he had played on their vulnerabilities and the blame remained with him. Far from engaging in provocative conduct, the complainants had been targeted by the appellant and their compliance did not mean that they engaged in the conduct willingly. It was submitted that the judge was entitled to find that even if the complainants offered sex for money, the appellant's conduct was quite unacceptable in exploiting their youth and financial vulnerability.

17 Before dealing with these submissions it is convenient to mention the submissions under ground 1, claiming manifest and breach of totality. Mr Wraight submitted that the individual sentences and total effective sentence were manifestly excessive, crushing and in breach of totality, in view of the appellant's admissions, his early pleas of guilty and remorse, his age (66 at sentencing), his lack of any other convictions and the fact that the complainants had willingly engaged in sexual contact for money. It was put that the total sentences and non-parole period were very heavy for a man of his age. He would have no working life upon release and had lost his partner, and it would be very difficult for him then to re-establish himself. The submission continued that the judge had placed excessive weight upon specific deterrence, a factor of much less significance having regard to the appellant's age and matters such as his plea of guilty and remorse. The submission ran that the sentence was closer to those imposed in serious cases of incest, rather than offending of the instant type.

18 Ms Cannon in response argued that the sentence, although stern, was within range. The judge had accepted that specific deterrence played a lesser role than otherwise might have been the case, due to factors such as the appellant's previous good history and age. However, her Honour was, it was submitted, entitled still to find that there was a real role for specific deterrence. Adequate weight had been given to the age of the appellant and the judge was required from count 3 onwards to sentence him as a serious sexual offender, the principal purpose of sentencing thereafter being the protection of the community. Ms Cannon submitted that the offending was predatory in nature and exploitative of inequality. The conduct was ongoing and there had been six months' overlap while the appellant was molesting both complainants. Furthermore, given the prevalence of this kind of exploitative and insidious offending against children, general deterrence was an important factor.

19 In my view there is nothing in ground 2. I see no similarity between this case and R. v. Nguyen[1], upon which Mr Wraight relied. Nguyen was aged 23 when he committed the offences in question, and the 14-year-old complainant in that case certainly consented to what occurred. In this case, however, the appellant was over 60 at the time of the offences and the victims were both 14-year-olds when the offending began, they were sexually exploited by the appellant and he was able to do so because of their obvious financial vulnerability. I would accept the submission of Ms Cannon for the Crown that the judge was entitled to find that even if, after the appellant's initial advances, the complainants offered sex for money, the appellant's conduct was unacceptable in exploiting their youth and financial vulnerability.

20 On the other hand, the total effective sentence imposed is, I think, manifestly excessive and crushing. The victims were, as I have said, young and financially exploited, the offences were serious, general deterrence was certainly important, and the appellant's conduct was ongoing, predatory and required appropriate condign punishment. On the other hand, the appellant was 66 when sentenced, had pleaded guilty at an early stage and had made substantial admissions which were particularly significant in that these were the only evidence in support of counts 13 and 14, the two representative counts on which the heaviest individual sentences were imposed. The appellant had no other convictions and had demonstrated remorse. I question whether, in all these circumstances, specific deterrence had a role of any real significance to play in sentencing. The present case is to be differentiated from those involving incest, where much higher sentences are commonly imposed. The appellant was a neighbour, not in a position of trust such as a parent, and he did not use any violence, although he certainly exploited the girls' youth and financial vulnerability.

21 It follows that in my view ground 1 has been made good and that the appeal should be allowed. I would leave standing each of the individual sentences imposed on counts 1 to 14 inclusive. In the case of counts 15 and 16, I would impose in each case sentences of 30 months' imprisonment, in lieu of the sentences imposed by the judge. In so far as cumulation is concerned, taking count 13 as the base sentence, I would order that six months of the sentences imposed on counts 1 and 12, the offences of committing an indecent act with a child which were in each case the first sexual advance to the victims, and nine months of the sentences imposed on counts 10 and 14, should be made cumulative on the sentence imposed on count 13, leading to a total effective sentence of six years and six months. Otherwise I would make no order for cumulation. I would impose a non-parole period of four years and six months.

22 I agree, for the reasons stated by Charles, J.A., that the appeal against sentence should be allowed and that the appellant should be re-sentenced as his Honour proposes.

2. The sentences be imposed as follows:

On each of counts 1 to 14 inclusive, the sentences below stand.

On counts 15 and 16: 30 months' imprisonment;

Count 13 is to be treated as the base sentence. Six months of the sentences imposed on counts 1 and 12 and nine months of the sentences imposed on counts 4 and 10 be cumulative on the sentence imposed on count 13 and on each other, giving a total effective sentence of six years and six months.

A non-parole period is fixed of four years and six months.

It is declared a period of pre-sentence detention served of 290 days and direct that declaration be noted in the Court's records accordingly.

[1] (2001) 124 A. Crim. R. 477; [2001] VSCA 139.