R v L D [2009] VSCA 311

CRIMINAL LAW - Appeal - Sentencing - Protection of community - Judge mistakenly sentenced offender as 'serious sexual offender' - Whether material error - Scope and limits of s 6D(a) Sentencing Act 1991 (Vic) - Error could not have affected sentence - R v Beary [2004] VSCA 229; (2004) 11 VR 151 applied.

1 The applicant ('LD') was convicted by a County Court jury of one count of rape. The victim was his biological daughter ('A'). She was aged 24 and LD was aged 54 at the time of the offending.

2 LD was sentenced to nine years' imprisonment, with a non-parole period of seven years. He now seeks leave to appeal against the sentence. A cross-appeal by the Director of Public Prosecutions, on the ground that the sentence was manifestly inadequate, was abandoned.

3 For reasons which follow, we would refuse the application for leave to appeal against sentence.

The circumstances of the offending[1]

4 A is intellectually impaired. She requires 24 hour care and supervision and needs assistance to carry out basic tasks. At the time of the offending A was being cared for by her father and her step-mother ('M'), a younger brother and a younger sister.

5 At the opening of the trial, LD made a formal admission that A was 'intellectually disabled [and] was incapable of giving, at all relevant times, informed consent to an act of penile sexual penetration.' LD also admitted that he was at all relevant times aware of that incapability.

6 The offending came to light when A was discovered to be pregnant. An ultrasound test confirmed that she was approximately 24 weeks pregnant. LD and M were advised that, although they were the legal guardians of A, they could not make the decision regarding the termination of the pregnancy. Because of A's cognitive disability, the consent of the Victorian Civil and Administrative Tribunal ('VCAT') was required.[2] With the assistance of a social worker, contact was made with the Office of Public Advocate, following which an urgent application was filed with VCAT. The opinion of the Office of the Public Advocate, however, was that it was doubtful that any hospital would undertake a termination procedure at such an advanced stage of pregnancy. The application was nevertheless listed for hearing.

7 Two days before the application was due to be heard, LD and M took A to a suburban hospital and requested a termination of the pregnancy, which began the following day. The termination procedure was carried out over a three day period. A sample of tissue was collected from the aborted foetus. The sample was subsequently seized by police under warrant and submitted for analysis.

8 Several days later, police attended at LD's home and spoke with him and his family about the pregnancy. The family were unable to identify any suspects or any occasion when the pregnancy might have occurred. The family members were A's only carers.

9 During the meeting, the family were informed that a DNA sample had been obtained from the aborted foetus and that the identity of the father of the child would be able to be determined through DNA testing. At this time LD changed his behaviour. He started to speak more loudly and said he wanted to know why police were involved and that he did not want the matter to progress any further. Police requested that LD and his son voluntarily provide samples. The son agreed but LD refused.

10 The following day, police executed a search warrant at LD's home. LD was in the backyard. He was given a formal caution and informed that he was a suspect for the rape. He was asked again if he would provide a voluntary sample. He said that he would do so the following day, but subsequently failed to do so.

11 Due to limitations of DNA testing at the Victoria Police Forensic Science Centre, the son was unable to be excluded from the investigation at this time, as he shares some DNA with A. Nine months later, police arrested LD on suspicion of having committed the rape, and interviewed him. He denied the allegation of rape and refused a further request to provide a sample of his for analysis.

12 Two months later, police again contacted LD. They informed him that they were in possession of a warrant to arrest him to bring him before the court so that an application could be made for an order that he provide a DNA sample. He was asked to have his solicitor contact police, which he did. The following day, LD attended voluntarily at the police station to provide police with a sample of his DNA.

13 DNA testing was subsequently conducted on samples collected from LD and his son, from A and from the aborted foetus. The expert evidence at trial was that LD was at least 15 million times more likely to produce an offspring having the DNA profile of the foetus than a man drawn randomly from the general population. This equated to a relative chance of paternity of at least 99.9999 per cent.

14 Throughout the trial and at the time of the plea in mitigation, LD maintained his denial that he had ever had sexual intercourse with A.

15 On the plea in mitigation, counsel for the Director (who had not appeared at the trial) helpfully provided the sentencing judge with a written outline of submission on sentence. The submission identified features of the offending relevant to sentence and was supported by references to a number of decisions of this Court on sentencing for child sex offences. The prosecutor was then able to draw attention to features of similarity, and dissimilarity, between those cases and the present. Defence counsel was then able to make submissions as to whether and to what extent the other decisions were comparable.

16 This was, in our view, a model of the kind of assistance which the Crown can give a sentencing judge. His Honour made clear that he had found the material of real assistance. He said that the cases referred to were 'clearly all of some utility', in particular in their identification of relevant principles, some of which his Honour cited in his reasons for sentence.

17 The prosecutor's assistance included some identification of the applicable sentencing range. She referred to the decision of this Court in Director of Public Prosecutions (Vic) v BGJ[3] where, after upholding an appeal against sentence by the Director of Public Prosecutions, the Court resentenced the offender to a total effective sentence of seven years with a minimum of five years. The prosecutor identified what she said were distinguishing features of the present case - in particular, that LD had pleaded not guilty and had shown no remorse - and submitted that the sentence of seven years with a minimum of five imposed in BGJ was 'outside the range for this matter'. This submission was vigorously contested by defence counsel.

18 Of particular significance was the identification in the submission for the Director of the aggravating features of LD's offending, which were set out as follows:

3. A resided with and was dependent upon her parents for her day-to-day care, requiring 24 hour supervision and assistance to carry out basic tasks;

4. 'the foregoing necessarily means this crime displays a breach of trust of the highest order';

6. the pregnancy was terminated when A was 24 weeks pregnant and she 'suffered quite significant pain and distress during the procedure'.

19 Defence counsel informed the judge that each of these propositions was conceded. He likewise accepted the prosecution's characterisation of the offending as 'a serious example of a serious offence'. He argued, nevertheless, that the offending should be regarded as opportunistic rather than predatory, in accordance with the expert opinion of a forensic psychologist, Ms Elizabeth Warren. Defence counsel pointed out, and the judge accepted, that there was simply no evidence about what had happened between LD and his daughter; in particular, there was no evidence of grooming, or coercion, or violence. It was submitted that the risk of LD's re-offending was 'very slim'.

Protection of the community as the primary sentencing purpose

20 Ground 1 contended that error was disclosed by the following passage from the sentencing reasons:

I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed and am empowered, if necessary in order to achieve that purpose, to impose a sentence greater than is proportionate. ...[4]

21 Although his Honour made no reference to s 6D of the Sentencing Act 1991 (Vic), it seems clear that he was here employing the language of that section, in the mistaken belief that its provisions were applicable. Section 6D provides as follows:

If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence ―

(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

22 These provisions could only have had application if LD had been a 'serious sexual offender' within the meaning of s 6B(2). As this was his first conviction for a sexual offence, he did not satisfy that definition and, accordingly, s 6D had no application to the sentencing task.

23 On the face of it, this was a significant error of law. Senior counsel for LD drew attention to two recent decisions of this Court, in each of which the mistaken application of s 6D was held to have vitiated the judge's exercise of the sentencing discretion. In R v Dooley,[5] the Court accepted the Crown's concession that this was a material error which re-opened the sentencing discretion. (The error was to treat the appellant as a 'serious violent offender.') The same concession was made - and accepted - in R v Nguyen,[6] although there the error was to treat the offender as 'a serious drug offender' for sentencing purposes.

24 In the present case, however, there was no Crown concession. Senior counsel for the Crown argued that the error was immaterial. That is, the Court should be satisfied that the error could not have affected the sentence which was imposed.[7]

25 In our view, this submission should be upheld, for two reasons. The first concerns the true meaning of the obligation in s 6D(a). The judge is obliged under s 6D(a) to 'regard the protection of the community from the offender as the principal purpose for which the sentence is imposed.' The evident legislative intent is to ensure that the prison term will be of a sufficient length to protect the community against the risk which the offender presents. How long that should be depends on the assessed risk of re-offending.

26 The corollary, of course, is that nothing in s 6D(a) justifies the imposition of a sentence longer than is necessary to protect the community against the risk which the offender actually presents. Thus, if the risk of re-offending is assessed as low - as it was in the present case - the protection of the community will weigh less heavily as a consideration than if the risk had been assessed as high.

27 Since protection of the community is always a relevant consideration in sentencing,[8] the directive in s 6D(a) will ordinarily have little impact on the determination of the appropriate sentence. Its main purpose, we would think, is to make sure that sentencing judges give proper consideration to the question of community protection, and undertake the requisite risk assessment.[9] Seemingly, the only circumstance in which compliance with the directive might directly affect sentence would be where protection of the community required a longer sentence but where mitigating factors called for a shorter sentence. In that circumstance, it would seem, s 6D(a) contemplates that the dictates of protection should take precedence.

28 In the case at hand, the judge addressed himself squarely to the question of protection and to the applicant's risk of re-offending. He imposed a sentence which, in his assessment, adequately addressed that risk. His Honour expressed himself to be satisfied that, when LD eventually emerged from prison, he would not be likely to re-offend. That seems in our view to have been a perfectly appropriate approach to the question of protection, whether or not s 6D had any application.

29 The relevant part of the reasons for sentence was in these terms:

A report was tendered and evidence called from its author, Elizabeth Warren, a forensic psychologist. It was Ms Warren's view that you are a good future risk and, 'If it is accepted that he did indeed commit the crime, it can be regarded as opportunistic rather than predatory and unlikely to be repeated with any other woman including his daughter.'

In cross-examination, the issue of these matters was further explored. It seems to me that as a result of the examination and cross-examination, that Ms Warren's view which I accept is that you are unlikely to re-offend in the sense that your public persona is completely devoted to the maintenance of the lie that you never raped your daughter. That inevitably would mean that upon your eventual release from prison, in order to continue the lie, you would deny any offending behaviour in order to maintain credibility with your family and your associates. I accept that view, that is, that it is unlikely you would re-offend in a similar manner again. It seems to me that you have decided to live the lie which you have chosen to pursue with all those around you. Sadly, [your daughter] is unable to explain her own views about your behaviour.

I am, on balance, satisfied that the chances of your rehabilitation are reasonably good upon your eventual release from prison. I am satisfied that you are unlikely to re-offend in a similar manner again. ...

...

With regard to specific deterrence it seems to me that in the circumstances I can accept the assessment of Ms Warren for the reasons she sets out in her report, that is that I think it is unlikely you will repeat this behaviour in the future for the reasons she has set out in her report and explained in her evidence. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending which I find to be limited in view of the matters to which I have just referred.[10]

30 The second reason for thinking this was an immaterial error is that there is nothing in the reasons for sentence, or in the sentence itself, to suggest that excessive weight (whatever that might actually mean) was given to protection of the community. For reasons developed more fully below, we consider that the sentence imposed was justified by the applicable sentencing considerations, including protection of the community properly assessed in the way the judge did it. In short, the sentence itself does not suggest that excessive weight was given to the need to protect the community.

31 Grounds 2 and 3 contended, respectively, that the head sentence of nine years' imprisonment and the non-parole period of seven years' imprisonment were manifestly excessive. As Maxwell P said in R v Abbott:[11]

The ground of manifest excess will only succeed where it can be shown that the sentence was "wholly outside the range of sentencing options available" to the sentencing judge.

The "range" for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.

32 Senior counsel for LD submitted that it was not reasonably open to the judge in the present case to impose the sentence which he did. He conceded, however, that he could point to no particular sentencing decision (whether at first instance or on appeal) to demonstrate that the sentence was outside the available range.

33 No issue was taken with the judge's characterisation of the offending, in these terms:

The facts in this case are most disturbing. Your behaviour was outrageous and offended the most basic rules by which we all live. The sanctity of the father/daughter relationship has been completely abused by yourself, and most aggravating is not only the gross breach of trust but also, of course, the fact that you knew your daughter was unable to exercise any decision of her own to refuse you.[12]

Senior counsel for LD agreed with the view expressed by the Court, in the course of argument, that what had occurred here would be regarded, both by the courts and by the community, as 'one of the worst types of sexual offending.'

34 These concessions were properly made, in our view. This was an unusually serious case, in that it combined a number of significant aggravating features - breach of trust between father and daughter; taking advantage of an exceptionally vulnerable victim who was under the care of the offender; and, by having unprotected sex, causing A to become pregnant and then to have to endure a painful termination.[13]

35 Apart from the pregnancy and the termination, the offending has had very significant consequences for A. As the judge said in his reasons, referring to a report provided by Ms Barbara Carter as delegate of the Public Advocate:

[I]t seems to me that what Ms Carter had to say is both insightful and very useful and I note in particular that the consequences of the rape of your daughter have been that your daughter is now obliged to move out of the home and a decision has been taken that she move into permanent care. At the moment she remains in respite placement awaiting a suitable permanent placement. In that sense your daughter has lost her father in a more dramatic and difficult way than the other members of your family.

I do note, of course, that Ms Carter also says, "[A] remains in respite care but is being actively considered for a permanent placement. [A] appears to be happy in respite care and is enjoying the day activities that are provided for her. The opportunity for her to leave the very tense and distressing environment of the family home has been of benefit to her. The obvious benefit she has received from the accommodation and day activities also indicate limitations and emotionally fraught environment of the family home."[14]

36 Equally, there was little to be said by way of mitigation, apart from what the judge found were reasonable prospects of rehabilitation. There was no discount for a plea of guilty, nor was there any expression of remorse.

37 Senior counsel for the Crown submitted that the sentence here imposed was at the very bottom end of the sentencing range reasonably open to the judge. The range was said to be between nine and 12 years. As mentioned earlier, the Director had initially formed the view that the sentence was below the bottom end of the range, and on that basis had instituted his own appeal which he later discontinued.

38 It is sufficient for present purposes to say that, given the seriousness of the crime and the absence of mitigating features, we consider that the sentence was within the range reasonably open to the judge. As to the non-parole period, we likewise consider that it was reasonably open to his Honour in the circumstances of the case to conclude that seven years was the minimum period which justice required be served before LD would become eligible for parole.[15]

[1] Paragraphs 4-15 are taken from the Crown summary which formed the basis of the sentencing.

[2] See Guardianship and Administration Act 1986 (Vic) s 39.

[3] [2007] VSCA 64; (2007) 171 A Crim R 74 ('BGJ').

[4] R v LD (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008), [33].

[5] [2006] VSCA 269.

[6] [2008] VSCA 141.

[7] See R v Beary [2004] VSCA 229; (2004) 11 VR 151, [15], [21] (Callaway JA).

[8] Sentencing Act 1991 (Vic) s 5(1)(e).

[9] See Director of Public Prosecutions v Patterson [2009] VSCA 222, [33].

[10] R v LD (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008) [31]-[33], [36].

[11] [2007] VSCA 32; (2007) 170 A Crim R 306, 309 (citations omitted).

[12] R v LD (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008), [13].

[13] See, eg, R v Wu [1999] VSCA 209, [17]; Director of Public Prosecutions v WJW [2000] VSCA 170; (2000) 2 VR 497, 500; Director of Public Prosecutions v VH [2004] VSCA 180; (2004) 10 VR 234, 237-8; R v Parfitt [2006] VSCA 91, [23].

[14] R v LD (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008), [19]-[20].

[15] See R v Sotto [2009] VSCA 70, [26]-[28].