R v Lane [2007] VSCA 222

2 On 16 November 2006 a judge of the County Court sentenced the appellant to a total effective term of imprisonment of 3 years and 8 months with a non-parole period of 2 years after he pleaded guilty to two counts of sexual penetration of a child under the age of 16 and one count of committing an indecent act with a child under 16. His Honour declared that the appellant was a serious sexual offender pursuant to the Sentencing Act 1991 and that he would be registered pursuant to the Sexual Offenders Registration Act 2004 for the period of his lifetime.

3 All three offences were committed on the evening of 23 June 1997. The victim was a child of 15 years and 10 months. She was the appellant's niece by marriage. The appellant, who was born on 16 February 1968, was aged 29 at the time of the offending. At the time of sentence he was aged 38.

4 There is no dispute about the circumstances of the offending. They were described as follows in the remarks of the sentencing judge:**

"... you were at home at Warrnambool with the victim who was then aged 15, being born on 1 August 1981. Your wife at the time was in hospital. During the course of the evening you played for the child a pornographic video called 'Sweet Sixteen' which portrayed men having sexual intercourse with teenage girls including group sex.

At some stage in the evening the victim changed into her pyjamas and continued to watch television with you in the lounge room. You then asked her whether she wanted a massage. She believed, according to her statement, it would be a normal back massage. She lay down on the floor on her stomach. You commenced massaging her back and you touched the sides of her breasts, then touched her breasts in a more direct fashion, turned her over onto her back, moved her pyjama top, fondled her breasts, moved her pyjama pants and underwear and knelt down and licked her vagina.

The acts of sexual familiarity continued, including placing your penis into her mouth. You then attempted to have intercourse with her while she was laying on her back but she said it hurt and then you penetrated her vagina with your penis by asking her to stand up and bend over. After that act of intercourse finished you told her not to tell [Maryanne] your wife. The complainant wrote down what had happened in her diary and sometime later, a week or so later, told a friend what had happened.

Indeed, sometime later you told your wife that you had sexual intercourse with the complainant. A month or so after these events in September [1997] I am told your wife separated from you. I am told that she had physical and psychiatric issues that troubled her at that time. The matter was not reported to the police until 2005. You were interviewed on 8 July 2005 and admitted you had the opportunity of being alone with the complainant but denied anything of an illicit sexual nature between you and the complainant.

The matter was listed for trial on Friday, 25 October 2006, but on that occasion I was told you indicated a willingness to plead guilty and on 30 October you pleaded guilty to the counts on the presentment."

The offences were serious. Their seriousness was increased by the fact that the appellant was in a position of authority and trust in relation to the victim who was staying at the appellant's house to assist in looking after the three year old child of the appellant and his then wife, the victim's aunt. The victim had been a frequent visitor at the house in the past but this was the first occasion on which she had stayed overnight without the presence of her aunt.

5 According to her victim impact statement, the victim was shocked by what happened. She did not really understand what was happening or why it was happening. She had stayed in the house many times before and nothing like it had ever happened. She had previously always felt safe staying with her aunt and uncle. It was a numbing experience for her at the time. Emotionally her life became very rocky. She no longer knew whom she could trust. She felt very alone. She lost respect for herself and became very promiscuous for a time. Although at the time of the hearing she was 25 years old and the mother of three children she still had trouble connecting with her fiancé on an intimate level. On the other hand, she said, the plea of guilty had given her great relief. She said:

"It is over now and I can move on to be a better person."

**6 The appellant is the youngest in a family of three. He was educated to Year 9 level in Warrnambool, leaving school at that time to enter employment. He remained in regular employment, of various kinds, for the next 20 years or so, until 2004. He then ceased working for reasons to which I will come. Apart from the present matters, he has never been in trouble with the law. He has no prior or subsequent convictions or any pending matters.

7 The appellant married for the first time in 1989. There was a child born a year later in 1990 and the marriage continued until September 1997. After the separation he lived and worked in Queensland for two years. He then returned to Warrnambool and met his present wife. They married in 2001 and bought a home together in 2002. There are two children of the marriage, both girls. At the time of the plea they were aged 3½ and 2½.

8 In 2004 the appellant's present wife was diagnosed as suffering from multiple sclerosis. Her general practitioner, Dr Hall, gave evidence before the County Court. Counsel who appeared before us on behalf of the appellant accurately summarised Dr Hall's evidence about the appellant's wife as follows:**

"• She suffers from sensory loss or numbness and tingling throughout her body;

• She has significant bilateral visual loss and recurrent very severe headaches;
• She is dependent in every aspect of her daily life, including getting out of bed, toileting, showering, bathing, dressing, and preparing meals;

• She is restricted in her capacity to walk, requiring aids;

• Without her husband, she will require a supporter care package which is 'very very hard to come by' or supported accommodation in a nursing home setting;

• Managing her children would be 'an enormous struggle';

• Because of her visual problems, she has problems in self-administering required daily injections."

**9 Dr Hall also said that Mrs Lane's particular illness had been "quite progressive" and "quite an aggressive condition". Her progressive limb weakness in particular was variable and at good times she might be able to have a reasonable exercise tolerance, up to 20 or 30 metres at a time; but often she was restricted to using walking aids or a wheelchair. He said that there is no cure for multiple sclerosis. The regular injection medication that Mrs Lane was taking could modify the course of the illness but it remained a progressive illness. There was nothing on the horizon to suggest that any cure might be found. Management of her condition amounted to trying to control its progressive effects and making the best of the condition. Dr Hall confirmed that, at the time of the plea, the appellant was providing every aspect of the assistance that Mrs Lane needed for daily living. It was in order to provide that necessary assistance that the appellant gave up work and became a full time carer for his wife in 2004.

10 In the plea made on behalf of the appellant before the County Court, counsel relied principally on the plea of guilty, the absence of any prior or subsequent offending, a series of impressive character references, the delay between the offences and the reporting of the matter to the authorities, the fact that the conduct in question would not have amounted to an offence under the relevant statutory provisions had it occurred only six weeks later than it did (because by then the complainant would have turned 16)[1] and, most significantly for present purposes, the particular situation of the appellant's family. Counsel submitted that the imprisonment of the appellant would not merely deprive his family of the ordinary support that one would expect but would deprive Mrs Lane of the day to day nursing care that she required and would deprive the children not merely of one parent but, effectively, of both parents. On that basis, counsel submitted that this was not merely a case of hardship but a case in which exceptional circumstances were present. No doubt counsel was referring to the authorities which establish that it is only in exceptional circumstances that a sentencing court may take into account the hardship which a sentence of imprisonment may impose on the prisoner's family or other parties. His Honour asked the prosecutor to comment on that particular submission. The prosecutor replied:**

"I don't think I could argue with the submission that my learned friend just made in that respect, Your Honour. Clearly, usually hardship is not a matter that the courts place much weight upon, but this is something more than that, it would seem, given the evidence that Your Honour has heard, so it is a matter of some significance to Your Honour."

On the other hand, the prosecutor went on to submit that a sentence involving immediate incarceration was called for in this case.

**11 In his sentencing remarks, the learned judge recognised that any period of incarceration imposed upon the appellant was likely to involve "a great hardship" on his wife and children. His Honour noted a submission on behalf of the appellant that the passage of time had led to a situation in which the prospect of imprisonment would involve hardship of a kind and degree that would not have been involved as at the time of the offending.

12 As to the principles relating to the consideration of hardship to family or third parties, his Honour relied on what had been said by Winneke P (with whom Brooking JA and Charles JA agreed) in R v Panuccio[2] as follows:**

"Although the Court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be 'exceptional' or 'extreme' before the Court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the Court's primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.

Thus it has often been stated that it is a general principle of sentencing that the Court should usually disregard the impact which the sentence will have upon the members of a prisoner's family unless exceptional circumstances have been demonstrated. The principle has been so often stated that it does not need repeating. ... [Winneke P referred to a number of cases] ... . It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration."

13 The learned County Court Judge then made certain observations which have proved to be the central focus of the submissions made on behalf of the appellant before this Court. The observations appear as paragraph 18 of the unrevised reasons for sentence which have been placed before this Court. As so recorded, his Honour said:

"Whilst it can be said that considerations relating to the imposition of a hardship upon your wife and children are not relevant considerations to your personal way of thinking when the offence was committed, they are circumstances that exist subsequent to the offence, and to my mind, only limited weight can be given to that consideration. In effect, it is consideration of mercy to be given to the nature of your wife's illness."

**14 These remarks, as recorded, are infelicitously expressed. I will return to them shortly.

15 His Honour proceeded to say that delay could not be given a great deal of weight in crimes such as the present, because the victim is often young and only upon reaching maturity does the victim find the strength to make a report, often to alleviate the psychological scarring that they have suffered since the offence was committed. His Honour expressed the view that the present was such a case. His Honour's concluding substantive remarks were as follows:**

"The sentencing principles are clear in the ordinary case; that is, an appropriate sentence will be one that denounces such activity as being totally unacceptable by the community and, of course, strongly reflecting considerations of general and specific deterrence. In your case, I note that you have a law-abiding background; you have no prior convictions; you have a good, strong work record. I accept that you are a good husband and carer for your wife and children. However, there is a significant age difference between you and the victim; you were in a position of trust with the victim. Considering the matter and giving weight, as much as I can, to the considerations relating to mercy and your own personal circumstances, your guilty plea, and your now sense of remorse, I have no other alternative but to impose a sentence of immediate custodial imprisonment.

On Count 1, you will be sentenced to 6 month's imprisonment. On Counts 2 and 3 you will be sentenced to 3 years' imprisonment. I order 2 months of Count 1 and 6 months of Count 3 to be served cumulatively upon each other and upon the sentence imposed in respect of Count 2. A total effective sentence of 3 years 8 months. I fix a minimum of 2 years before you are eligible for parole."

16 A notice of application for leave to appeal against sentence was filed by the applicant on 23 November 2006 pursuant to s 582 of the Crimes Act 1958. Redlich JA granted the application on 4 May 2007. The appellant's grounds of appeal, as stated in his full statement of grounds dated 28 May 2007, are as follows:

"1. Ground 1. The learned trial judge erred in failing to classify the circumstances in the case before him as occasioning 'exceptional hardship' to the Appellant's family.

1. Ground 2. The learned trial judge erred in wrongly construing the test for 'exceptional hardship' by taking into account an irrelevant consideration, namely that the relevant circumstances came into being after the commission of offences by the Appellant.
2. Ground 3. The learned trial judge erred in failing to extend mercy to the Appellant by reason of the circumstances of the Appellant's wife, even if they fell short of 'exceptional hardship'."

**17 Ground 2 can be disposed of briefly. I am not satisfied that his Honour used adversely to the appellant the fact that the relevant circumstances came into being after the commission of the offences. On the contrary, I think that his Honour understood and duly acknowledged that that fact tended in favour of the appellant. As mentioned above, the paragraph numbered 18 in his Honour's unrevised reasons for sentence is infelicitously expressed. It may even have been mis-recorded. The construction of it urged by the appellant is inconsistent with the sympathetic way in which his Honour had previously recited the appellant's argument on the point.[3]

18 It is convenient to consider grounds 1 and 3 together. Although his Honour was not explicit on the point, it does seem that his Honour was not prepared to find that the circumstances should be classified as "exceptional" or "extreme". On the other hand, his Honour was prepared to give "limited weight" to the hardship which imprisonment would involve for the appellant's wife and children. In this regard, as already mentioned, his Honour is recorded as having said:**

"In effect, it is consideration of mercy to be given to the nature of your wife's illness."

19 His Honour's reference to "mercy" was no doubt inspired by the well established principle to which Chernov JA referred in R v Nagul[4] as follows:

"... where hardship to the offender's family cannot be taken into account for sentencing purposes because of absence of exceptional circumstances, it may be taken into consideration in determining whether mercy should be extended to the offender, the exercise of mercy being part of the exercise of the sentencing discretion. As King CJ said in R v Osenkowski in an oft cited passage cautioning against the circumscription of the sentencing discretion by Crown appeals, '[t]here must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case.' Its application may arise where, for example, hardship to the family, or the family's circumstances, make the imprisonment of the offender more onerous than would otherwise be the case. But, as will be seen, in the appropriate case mercy may also be extended effectively to the family member who suffers significant hardship because of the offender's incarceration; or mercy may be extended where both factors are present, namely to the offender and family members. In R v Nguyen, for example, considerations that included the ill-health of the offender's wife and his concern as to its effects on their children for whom she was increasingly incapable of caring, the deterioration in his own mental health and, generally, the greater burden imposed on the offender by his imprisonment motivated the Court to invoke considerations of mercy in reducing the non-parole period."

**20 In my view, this was a borderline case. I would not have been surprised had the learned County Court judge classified the circumstances as exceptional. On the other hand I cannot say that this experienced judge erred in concluding that the case was not so exceptional as to justify a departure from the general rule, at least insofar as the appellant sought to be absolved from serving any actual term of imprisonment at all.[5] I say this principally because of the undeniable seriousness of the offences committed by the appellant.

21 However, I am persuaded that the appeal should succeed on Ground 3. In my view, there was error on the part of the learned trial judge in failing to extend a significantly greater degree of mercy to the appellant in all the circumstances. I do not think that it would be proper to interfere with the head sentences imposed by his Honour nor with his Honour's decisions as to cumulation. In other words I do not consider that the total effective head sentence of 3 years and 8 months should be interfered with. However, this was an unusual case. The evidence given by Dr Hall established that the plight of Mrs Lane was very dire. The imprisonment of the appellant would in effect leave his two young children without any real parental support. The appellant was obviously a good candidate for rehabilitation. He had not been in any trouble with the law at all in his 38 years except in relation to the present matters. Some 9 years had passed since the offences were committed in which the appellant had been, according to the material before the sentencing Court, an exemplary person both in relation to his new family and in relation to his local community. At the plea hearing the prosecutor himself had been prepared to acknowledge that there were exceptional circumstances. His Honour's sentencing remarks do not reveal that any consideration was given to the anguish that the appellant himself would no doubt suffer in prison because of his inability to assist his wife or his children. Nor do the sentencing remarks reveal that any separate consideration was given to the question of family hardship in relation to the setting of an appropriate minimum term, as distinct from the setting of the head sentence.[6]**

**22 In all the circumstances I would allow the appeal and in lieu of the minimum term set by his Honour I would fix a minimum term of 15 months before the appellant becomes eligible for parole. I would otherwise confirm the orders made by his Honour.

The sentences imposed below are set aside and re-imposed as are the orders for cumulation.

The order with respect to the non-parole period is set aside and in lieu thereof the Court sets a new non-parole period of 15 months imprisonment.

It is declared that the period of 335 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

The Court otherwise confirms the orders made by the sentencing judge on 16 November 2006 pursuant to the Sexual Offenders Registration Act 2004 and the Crimes Act 1958.

[1] Sections 45 and 47 of the Crimes Act 1958. I should not be taken to acknowledge that this element of the plea had any particular merit. The fact is that as a child of 15 the victim was entitled to the protection of sections 45 and 47 of the Crimes Act 1958. Moreover, s 5 of the Sentencing Act 1991 requires the court to have regard to the impact of the offence on the victim and also to the personal circumstances of the victim. The precise age of the victim is not as significant in that regard as his or her particular need for protection and vulnerability to harm, including harm of the very kind that the victim in this case suffered.

[2] Unreported, Court of Appeal, 4 May 1998, BC 9801713.

[3] See para 14 of the reasons for sentence. Nor had his Honour queried the argument when it was advanced during the plea hearing itself.

[4] [2007] VSCA 8 at 44. Citations omitted. See also R v Jaross [2007] VSCA 68 at [14]- [18].

[5] Compare R v Yates (1998) 99 A Crim R 483 at 488; R v Maslen & Shaw (1995) 79 A Crim R 199 at 209.

[6] Compare R v Leesley [2001] VSCA 90 at [15].