R v L J F [2009] VSCA 134

CRIMINAL LAW - Appeal - Sentence - Representative counts - Whether sentencing judge erred in not making finding as to frequency and detail of conduct - Sentencing judge entitled to rely on factual basis set out in Crown opening on plea - DPP v CPD [2009] VSCA 114.

1 The appellant ('LFJ') pleaded guilty to two representative counts of incest, two discrete counts of incest and two representative counts of committing an indecent act with a child under the age of 16. The victim in each case was his son, who was aged between 12 and 13 when the offences occurred.

2 LFJ was sentenced in the County Court as follows:

3 What follows is taken from the Crown opening as presented on the hearing of LFJ's plea. As conventionally occurs, the Crown opening constituted the factual basis upon which, by agreement between the Crown and the defence, the judge was asked to impose sentence.

4 The offending occurred between January 2004 and December 2005. The victim ('R') was living at home with his mother and father. He was in grade six when the offending began, and in year seven when it finished.

5 R disclosed the offending to his mother in November 2006. He said that the abuse had not occurred for approximately 12 or 18 months. R and his mother then went and saw the pastor at their church, and told him what had happened. The pastor contacted the police, then contacted LFJ by telephone and asked him to come and see him. When the pastor confronted LFJ with the allegations, he admitted that they were true. LFJ then went with the pastor to the police, and made admissions in his record of interview, to which reference will be made.

6 The offending the subject of the individual counts was described in the Crown summary in the following terms:

Count 1 - representative count of incest

Relates to occasions where the prisoner and the complainant were in the bathroom/shower; the prisoner's workplace; or at home and the prisoner would place his penis in the mouth of the complainant.

Count 2 - representative count of incest

Relates to occasions in similar circumstances to above, where the complainant would place his penis in the mouth of the prisoner.

Count 3 - incest

Relates to an incident when the complainant and the prisoner were in the shower together and the prisoner penetrated the anus of the complainant with his penis.

Count 4 - incest

Relates to an incident in similar circumstances to those of Count 3 where the complainant penetrated the anus of the prisoner with his penis.

Count 5 - representative count - indecent act

Relates to occasions during the relevant period where the prisoner would masturbate the complainant.

Count 6 - representative count - indecent act

Relates to occasions during the relevant period where the complainant would masturbate the prisoner.

The learned sentencing judge erred in imposing sentences on representative counts by failing to identify the number of other incidents involved or at least the frequency of occurrence, and the identification of the similarity of the incidents represented to the one charges.

7 Following discussion between the Court and counsel for the appellant, this ground was not pressed. Since the point may arise again, however, we set out below the relevant considerations.

8 The proper approach to sentencing for representative counts has been considered by this Court on a number of occasions in recent times. In DPP v CPD ('CPD'),[1] the Court referred to what had been said in DPP v McMaster[2] and in The Queen v CJK,[3] and said:

As recent decisions of this Court have made clear, the fact that a count is a representative count has a twofold relevance to sentencing. First, it is to be understood as the absence of a mitigating factor, in the sense that a plea of guilty to a representative count prevents the defendant from claiming "any leniency that might have been permitted on the basis that the offence was an isolated event."[4] Secondly, the sentencing court must look at the conduct represented by the count in order to judge the offending in its full context, "which is likely to bear upon matters such [as] extent of culpability, need for specific deterrence and prospects of rehabilitation."[5]

9 The particular complaint the subject of ground 1 relied on the view expressed in The Queen v RGG ('RGG'),[6] that the judge should 'identify some level of detail of the conduct represented by the count ... so that the "whole picture" can be seen.' As the Court said in CPD:

[P]lainly enough, ... how much a sentencing judge will be able to ascertain about the 'full circumstantial context' will depend on the material before the court. On a plea, the Crown summary will typically function as a statement of agreed facts which will both describe and confine the context for this purpose.[7]

10 That is exactly what occurred here. Presumably as a result of discussion between prosecution and defence before the pleas were entered, the Crown opening was not specific about the number of occasions of sexual abuse to which each of the representative counts related. Her Honour did what it was doubtless intended she should do, by treating the Crown opening as setting out the factual basis for the sentencing. The reasons for sentence repeated, almost verbatim, the factual summary from the Crown opening.

11 In the circumstances, it was neither necessary nor appropriate for the judge to go behind the Crown opening. Nothing said in RGG was, we think, intended to impose on sentencing judges an obligation to make their own investigations of the evidentiary material for this purpose. Of course, had her Honour done so on this occasion, the investigation would hardly have been to the advantage of LFJ. It is sufficient to note that at his second interview, LFJ said he thought that there were 'about 10' occasions on which he had asked his son to perform oral sex on him.

The learned sentencing judge erred in failing to accord any, or any sufficient, weight to the attitude of the complainant to the appellant

12 In the course of the plea, defence counsel told the sentencing judge that LFJ was 'in a very unusual and ... fortunate position being that his son is still quite supportive of him, as is his wife, despite the fact that they have separated.' The son had provided a victim impact statement, in which he said: 'I hate him for what he did, but I love him for the amazing dad he is in spite of what happened, and I will miss him.'

13 The prosecutor contended that, in the circumstances of this case, the son's attitude could not be seen as mitigating the seriousness of the offending, 'when the relationship that existed between them with this offending effectively allowed the offending to go on.' In her sentencing reasons, the judge quoted the son's statement, saying:

Incest has long been regarded with abhorrence by the community. Children have an amazing capacity to love their parents even when they commit crimes against them. Your son's victim impact statement is an example of this.[8]

14 The contention on the appeal was that the attitude of the complainant (and of his mother) towards LFJ was relevant and should have been accorded weight:

It was relevant to the appellant's rehabilitation prospects generally; and in particular it bore on the evolving empathy and concern that the uncontradicted [psychologist's] report stated the appellant had now developed. This in turn bore on the weight to be attached to both specific and general deterrence. It has relevance in assessing the harm occasioned to the victim.

15 It has been established by a series of decisions of this Court that the attitude of the victim(s) towards the offender is relevant to the exercise of the sentencing discretion. Most recently, in The Queen v CLP,[9] the Court (Neave and Kellam JJA and Osborn AJA) said:

The Sentencing Act 1991 requires a sentencing judge to take account of "the impact of offence on any victim of the offence" and the "personal circumstances of any victim of the offence". In R v Skura Smith AJA recognised that the fact that a victim has forgiven an offender may show that an offence has had a limited a psychological effect on the victim and may also be relevant to the offender's prospects of rehabilitation. However it is clear that the weight to be given to the victim's attitude varies according to the circumstances of the case.[10]

16 As already noted, the judge expressly referred to what the son had said in his victim impact statement. It cannot, in our view, be contended that her Honour failed to take this matter into account. Instead, the question is whether it was given appropriate weight. As with all questions of weight, the only way in which the appeal court can decide the question is by reviewing the sentence ultimately imposed and asking whether that result was reasonably open to a judge who gave appropriate weight to all relevant factors. As appears in the next section of these reasons, we are firmly of the view that the sentence here imposed was reasonably open in the circumstances.

17 In the present case, the sentencing judge provided a written report on the grounds of appeal. The part of the report dealing with this ground was in the following terms:

[In] my sentence, I commented that children have an amazing capacity to love their parents, even when they commit crimes against them. However, in my opinion, the importance of general deterrence in such cases must override the forgiveness of the victim. In R v Rowe,[11] the [New South Wales Court of Criminal Appeal] said:

"This Court has said more than once that the attitude of the complainant cannot govern the approach to be taken in sentencing. ... [W]hilst forgiveness by the victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offence fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have."[12]

I considered that the offences in this case fell into the same category as in Rowe. The relationship between a child and a father is such that the child victim frequently, and contrary to his own interests and welfare, forgives [the] attacker. This case not only involved mutual masturbation and oral sex, but also an incident where the accused penetrated the complainant's anus with his penis.

Apparently, the accused's partner is still supportive of him and I imagine that this would put considerable pressure on the victim to forgive his father. It is also possible that his church group has influenced him. However, given the nature of the offence and the relationship between the parties, I considered that it was not appropriate to take his attitude towards the accused into account when sentencing the accused. I consider that the importance of general deterrence in such a case overrode any relevance that this forgiveness might have.

18 Counsel for the appellant did not dispute the correctness of the following statement quoted by her Honour from the decision in R v Rowe: 'The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.'

19 In any event, the son's victim impact statement did not express forgiveness. Quite the contrary. He said unambiguously that he hated his father for what he had done. The victim's mother in her statement said only that she hoped one day she and her son could find forgiveness. At best for the appellant, the son's statement revealed an emotional ambivalence which might be thought unsurprising when a loved and trusted parent perpetrates such appalling sexual abuse on his child. As Neave JA said in CLP, '[t]he psychological effects of intra-familial sexual abuse are extremely complex.'[13]

The individual sentences imposed, the total effective sentence and the non-parole period are each manifestly excessive

20 The submission for LFJ was that the sentences were manifestly excessive, given that LFJ:

• had made full and frank admissions to a civilian witness, and then went to police and volunteered his offending to them;
• was at the time of the offending 'confused as to his sexual identity and found it difficult to put in place appropriate boundaries consequent upon his own abuse as a child';
• had voluntarily discontinued the conduct;
• had sought treatment, was remorseful and presented as a low risk of reoffending as at the time of sentence;
• had the support of both his victim and the victim's mother;
• had pleaded guilty at the earliest available opportunity; and
• had no prior convictions 'of any real consequence to these matters'.

21 A number of aspects of this submission require comment. First, this was not a case of voluntary disclosure of offending. As mentioned earlier, the offending came to light because the son disclosed what had occurred. LFJ was then confronted by the family pastor, who took him to the police. Secondly, LFJ's record of interview with police was hardly 'full and frank'. Two examples will illustrate LFJ's reluctance to admit what had occurred:

Q: Have you in the past sexually abused your son?

A: I s'pose I'd have to say yes in ... the events of what's happened.

And also:

Q: When you performed oral sex on your son, did you always instigate it?

A: I think so. I do - I think I'd probably have to say yes to that.

22 Thirdly, as to LFJ's own experience of sexual abuse as a child, the psychologist's report relied on by the defence recorded instances of childhood sexual abuse disclosed by LFJ. The first of these had occurred when he was approximately nine or 10 years old. The abuse was perpetrated by a friend of his paternal grandparents, and consisted of repeated fondling of his genitals. The second bout of sexual abuse took place when he was 14 or 15. An older boy had coerced LFJ into performing acts of fellatio upon him. These incidents took place over an extended period. LFJ told the psychologist

that he had found these experiences unambiguously distressing. They also appear to have entrenched a confusion regarding his sexuality which was particularly intense as the abuse occurred at a critical developmental time in his life. Specific investigation of its impacts indicated that the abuse had left him with abiding doubts about his sexual orientation and identity.

23 The psychologist, Patrick Newton, identified 'dysfunctional cognitions' on LFJ's part. One in particular, which the psychologist described as 'concerning', was LFJ's

confusion about the need for appropriate sexual boundaries with his son. He indicated that he had been oblivious to the detrimental impacts of the activity that occurred between them, rationalising that it could be mutually enjoyable and/or educational in nature. These beliefs seemed to have had their origin in his experiences with [the friend of his grandparents] and allowed him to overcome the various taboos which would ordinarily have prevented him from acting upon his urges with his son.

24 Counsel for LFJ relied on the decision of this Court in R v AWF.[14] In that case, there was uncontradicted expert evidence before the sentencing judge from a psychiatrist who expressed the opinion that the childhood abuse to which the offender had been subject had been 'a factor that contributed to his offending'.[15] The Court concluded that the judge had erred in deciding that the childhood experience was irrelevant to sentencing. Chernov JA (with whom Buchanan JA agreed) said:

In my view, given the evidence [of the psychiatrist], the fact that the [the offender] was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender's personal circumstances and thus, goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct. Moreover, what weight is to be given to it is another matter. But that such a factor is relevant to sentencing consideration is, to my mind, clear.[16]

Clearly evidence of this kind is relevant, certainly where there is no dispute as to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender's subsequent misbehaviour. One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.[17]

25 On the plea, defence counsel emphasised that LFJ did not rely on his past 'as an excuse for his behaviour', and that he 'accepted full responsibility' for the offending behaviour. At the same time, Mr Newton's report was relied on to support the submission that:

[T]he offending stems from what is his own distorted sexual views and ignorance regarding the development of children, which again is something significant, that this isn't a situation where he is simply a predator, but rather it is something inextricably linked to his own experiences with childhood sexuality and subsequent abuse at effectively the hands of two people, ...

26 The sentencing judge set out at some length what Mr Newton had said about the incidents of childhood sexual abuse, but stopped short of making any finding that the sexual abuse was explanatory of the offending. This was not surprising, in our view, for the following reasons. First, LFJ had told Mr Newton that he had found the first cycle of abuse 'disturbing and upsetting', and that the later experiences with the older boy were 'unambiguously distressing'. Further, LFJ had told Mr Newton that

he had not disclosed his abuse at the time it had occurred as he had felt too "dirty, guilty and confused about what had happened to [him]" and had feared that he would be ostracised if he revealed it. He was subsequently left with abiding feelings of anger and resentment that continued to be evident to this day.

27 In short, the effect of the sexual abuse on LFJ was, by his own account, disturbing and distressing. It left him 'with abiding feelings of anger and resentment'. In the circumstances, it is difficult to accept that LFJ could possibly have been 'oblivious to the detrimental impacts' of his sexual abuse of his son. In the circumstances, her Honour was entitled to reject - as she implicitly did - the submission that the earlier abuse explained what LFJ had done to his son.

28 What appears to have happened is that LFJ exploited his son's unquestioning trust to pursue his own sexual gratification. Counsel for the appellant conceded - properly - that LFJ knew that what he was doing was wrong. So much was made clear by the fact that, as LFJ told police, he would always make sure that his wife was not at home before he engaged in sexual abuse. He knew that her reaction 'wouldn't be favourable' if she knew.

29 Mr Newton initially assessed LFJ as presenting a moderate risk of sexual recidivism. On the basis, however, of his progress over five months in a sex offender treatment program, Mr Newton re-assessed his risk of offending as falling in the 'moderate - low' range.

30 As the judge explained to LFJ at the time of sentence, the imposition of a sentence of imprisonment on counts 1 and 2 meant that he fell to be sentenced as a serious sexual offender on the remaining counts.[18] In accordance with s 6D(a), her Honour correctly treated the protection of the community as the principal purpose for which she was imposing sentence. Favourably to LFJ, she attributed to Mr Newton the view that LFJ's risk of reoffending was low, rather than 'moderate - low'.[19]

31 On the appeal, reliance was placed on statements in Ryan v The Queen,[20] by Kirby J[21] and by Callinan J,[22] to the effect that the public opprobrium consequent upon conviction for a serious (sexual) crime might be a factor relevant to mitigation of sentence. Properly, counsel pointed out that two other members of the Court - McHugh J[23] and Hayne J[24] - had expressed a contrary view.

32 No occasion arises in this case for that question to be investigated further. Favourably to LFJ, the judge took into account that he had been 'publicly shamed'; and had 'suffered a loss of reputation amongst the people who mattered to [him] including a church congregation of over 200 adults plus children.'[25]

33 These were very serious offences. We respectfully agree with what the judge said to LFJ:

By these offences you committed a grave breach of your son's trust in you and betrayed a child who loved you and was entitled to your protection. In acting as you did, you committed a gross abuse of your parental authority. As the Court of Appeal has said on many occasions, those who engage in sexual abuse of vulnerable young persons must expect to receive cogent (scil condign) punishment. The sentence I deliver must reflect the community's disapproval of this type of conduct and the need for general and specific deterrence.[26]

34 Incest carries a maximum penalty of 25 years, which marks the community's abhorrence of sexual abuse against children. The sentences imposed on the incest counts, and the orders for cumulation, were lenient in the circumstances. As can be seen from the table of sentences for incest appended to the Court's decision in CPD,[27] these sentences were low when judged by current sentencing standards. So too was the total effective sentence.

[1] [2009] VSCA 114, [38].

[2] [2008] VSCA 102; (2008) 19 VR 191.

[3] [2009] VSCA 58.

[4] Director of Public Prosecutions v McMaster [2008] VSCA 102; (2008) 19 VR 191, 202 (Ashley JA); The Queen v CJK [2009] VSCA 58, [43] (Warren, CJ) citing DPP v EB [2008] VSCA 127, [13] (Nettle JA).

[5] Director of Public Prosecutions v McMaster [2008] VSCA 102; (2008) 19 VR 191, 202.

[6] [2008] VSCA 94, [25] (Lasry AJA, with whom Ashley JA agreed).

[7] [2009] VSCA 114, [41].

[8] R v LFJ (Unreported, County Court of Victoria, Judge Campton, 31 July 2007) ('Reasons') [10].

[9] [2008] VSCA 113.

[11] (1996) 89 A Crim R 467.

[12] Ibid 472-3 (Hunt CJ at CL, with whom Smart and Ireland JJ agreed).

[13] [2008] VSCA 113, [34].

[14] [2000] VSCA 172; (2000) 2 VR 1.

[18] Reasons [12]; Sentencing Act 1991 (Vic) Part 2A.