R v M J [2000] VSCA 66

5. On 1 December the jury convicted the respondent on all counts. He had no prior convictions and after a plea for leniency, during which some character witnesses and a forensic psychologist, Mr Cummins, were called, and a victim impact statement was tendered, the learned judge sentenced the respondent to be imprisoned for six months on each of counts 1 and 2 and for two years and six months on each of counts 3, 4 and 5. For those counts the respondent was treated as a serious sexual offender. His Honour directed that the sentences on counts 3, 4 and 5 be served concurrently and that one month of the sentences imposed on counts 1 and 2 and four months of the sentence imposed on count 5 be served cumulatively upon the sentence on count 4 and upon each other, making for a total effective sentence of three years' imprisonment. A non-parole period of one year was fixed and a declaration made as to 15 days pre-sentence detention. (His Honour was erroneously told that the maximum penalty for the offences of sexual penetration was 25 years' imprisonment.)

8. The respondent, on 17 December 1999, lodged notice of application for leave to appeal against conviction pleading several grounds. This application was later abandoned.

11. On 12 January last, the Acting Director of Public Prosecutions lodged notice of appeal with respect to the sentence imposed on the respondent. The grounds pleaded were:

"1. The sentence imposed in respect of count 1 was manifestly inadequate in that the learned sentencing judge

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence; and

(d) gave too much weight to factors going to mitigation.

2. The sentence imposed in respect of count 2 was manifestly inadequate in that the learned sentencing judge

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence; and

(d) gave too much weight to factors going to mitigation.

3. The sentence imposed in respect of count 3 was manifestly inadequate in that the learned sentencing judge

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(d) gave too much weight to factors going to mitigation; and

(e) gave insufficient weight to the fact that the respondent fell to be sentenced as a serious sexual offender.

4. The sentence imposed in respect of count 4 was manifestly inadequate for the same reasons as particularised under ground 3. 5. The sentence imposed in respect of count 5 was manifestly inadequate for the same reasons as particularised in ground 3. 6. The learned sentencing judge erred in failing to order greater cumulation of sentence. 7. The total effective sentence is manifestly inadequate. 8. The non-parole period fixed is manifestly inadequate."

27. It is now necessary to set out, in short compass, the evidence adduced at the trial of the respondent. As to this, I rely on the summary supplied to this Court, the content of which has not been challenged.

30. By way of preliminary explanation of relationships, it should be explained that the respondent is the former husband of the complainant's aunt "B". The respondent and "B" had a son who was three years of age at the time encompassed by the presentment. The offences, save for count 2, were committed at the respondent's home in Mansfield, during a time in which the respondent was breaking up with his wife. In 1994, prior to the separation of the respondent and his wife, the complainant, who was living with his grandmother, commonly spent weekends with his aunt and the respondent.

33. The jury received the complainant's evidence in two ways. The first was by way of the playing of what has become known as a VATE tape. The remainder of the complainant's evidence was given by videolink from a remote location within the court complex.

38. This offence occurred when the complainant was some seven years of age and while he was staying at "B's" home in Mansfield. The respondent was then living with "B", but sleeping in a bed apart from her, described as "the top double bed", "up the hallway" and "near the front door and across the hallway". The complainant said he was sleeping "in the bedroom across the hallway" and "B" and her son slept in two further bedrooms. The complainant's evidence was that the respondent came into his room at night, naked, and asked him to suck his penis. Then, pointing to his buttocks, the respondent started playing with the back of his shorts. He said he tried to stop the respondent, who then went back to his bedroom. The complainant placed these incidents at perhaps ten o'clock at night. He refused the respondent's request. He could see the respondent because the light was on low and the curtains were open. The playing with the back of his pyjama shorts involved flicking the elastic, whereupon the complainant brushed the respondent's hand away.

43. This offence occurred in Melbourne. The complainant's evidence was that the respondent had often taken him to visit the respondent's parents, but that this was the only occasion when he took him alone. He also said that this offence occurred when the respondent and "B" were still together. The complainant and the respondent stayed but one night in Melbourne and slept in the same room. The complainant went to bed and the respondent stayed up. The complainant woke up and found himself in the respondent's bed. He also found his pyjama pants, which had been up, were around his feet and the respondent had his hand on the complainant's right shoulder. The respondent was asleep, but his penis was through "a big hole" in his underpants which were blue with black elastic. The complainant said the respondent had his hand on his (the respondent's) penis and moved it twice up and down. The complainant did not say anything and later, without waking the respondent, rose and went to watch television. The complainant said that he had slept in the same bed as the respondent on six or seven occasions, including the visits to Melbourne. Sometimes, being scared, he had asked to sleep with the respondent, but on other occasions the respondent put the complainant in his (the respondent's) bed.

48. These offences occurred some time after the first incident in the respondent's home. He had gone to bed in the respondent's double bed, because "B" had piled up clothing on his single bed. He awoke feeling pain as he felt the respondent's fingernail inside his "bottom hole". He found himself lying on his side and could feel the respondent's breath on the back of his neck. The respondent was naked. The complainant struggled, but the respondent held him with his arms crossed over his chest (count 3). Then, the complainant declared, the respondent stuck "something big and round, not sharp", "up my bottom". He said he did not know what the object was, but it felt warm. He said that the object penetrated "my hole" and the respondent moved it repeatedly "in and out" causing him pain. He struggled, kicking out with his legs. The penetration lasted five or ten minutes. Neither party said anything. The respondent then stopped, telling the complainant "not even to tell an ant" or he would be in trouble. The complainant said he did not see what the respondent's penis looked like (count 4). The witness added that three times after this experience, when he went to "do a poo", he experienced pain.

53. The complainant placed this offence about a week after the events of count 4 and in the morning about seven o'clock. He said he was in his bed "near the front door" when the respondent came and put him in his (the respondent's) bed. He said that the respondent pushed his head down a bit and tried to stick his penis in his mouth. The complainant closed his mouth and the respondent kept opening it with both his hands causing pain. Because it "hurt too much" the complainant opened his mouth whereupon the respondent put his penis in it saying "it feels good, it feels good". The penis went in and out for some five or seven minutes, whereupon the respondent stopped and "all this white stuff kept on coming out of his penis and then he got up and went to the bathroom or something and washed it off". The complainant said this was the only time an incident of this sort occurred. The respondent again warned him not to tell anyone.

56. There was evidence from the complainant's mother "N" that the complainant complained to her in January 1998. This was preceded by "N" remarking that the respondent wore his pants very tight, whereupon the complainant said, "That's because he's gay, Mum". Asked what he meant, the boy replied, "Well, he asked me to suck his dick". After an interval of some days because she did not want to disturb the complainant, the mother raised the matter again with him, whereupon he recounted events touching counts 2 and 3. The mother later spoke to her sister and as a result contact occurred with a female police officer.

59. Dr O'Dell, a forensic physician from the Victorian Institute of Forensic Medicine, gave evidence touching physical symptoms consequential upon anal penetration of a seven or eight year old child. While serious damage could occur, he said, it was much less common than minor symptoms or none at all. There would have been no point in examining the complainant as to alleged penetration three or four years after it allegedly occurred. The pain described by the complainant when going to the toilet was consistent with anal damage or trauma.

62. The complainant was interviewed by the police officer on 5 February 1998. This interview was video-taped. A Detective Sergeant Wells interviewed the respondent on 13 February. The complainant's specific allegations were put to him and he denied them. He denied taking the complainant alone to Melbourne. He agreed that in September 1994 he had been splitting up with his wife. On one occasion when he was sleeping in the home at Mansfield apart from his wife he awoke to find the complainant in bed "cuddled up" next to him and with his hand on the respondent's penis. He told the complainant "You don't grab no one in those areas" and the complainant replied "Oh, just more or less to cuddle up to you". He said he warned the complainant against kissing males on the lips and often rebuked him for playing with himself. Prior to the penis incident, the complainant had slept in the same bed with him on half a dozen to a dozen occasions. He said he did not tell his wife or anyone else about this incident.

65. The respondent gave evidence in his own defence and called his current wife and a friend to give evidence of his good character.

68. In his evidence to the jury, the respondent described the marriage break-up. He said, apart from this matter, it had never been suggested to him that he had interfered with a child. He denied that he had ever behaved improperly with the complainant. He said he had always tried to obey the law and had no charges pending against him. As to count 2, he said he could not honestly remember whether he had taken the complainant to Melbourne alone. He said it was "just so far back". He said that on the occasion of the penis incident the child's hand had been on the outside of his "jocks" and that the child was not moving his hand. He had a vague recollection that the complainant had asked to sleep with him that night because he was scared. Asked as to an admission he had made to the police that the complainant had slept with him half a dozen or a dozen times, the respondent said that he had in fact been referring to his son having done so. He said during the interview with the police he had been "a bit in shock" about the allegations.

71. I now turn to the arguments of counsel. Mr McArdle, for the Acting Director, began his submissions by contending that each individual sentence imposed was manifestly inadequate. He submitted the offences were extremely serious, which circumstance the learned sentencing judge had acknowledged (335). His Honour had added, in his reasons for sentence, that the respondent's conduct was "disgraceful" and represented a breach of trust (335). Further evidence of the seriousness of the offences, said counsel, lay in the maximum penalties provided by Parliament. Mr McArdle then turned to past judicial statements as to offences such as these, citing a passage in R. v. Ware, a decision of this Court reported at [1997] 1 V.R.647 at 653, where Hedigan, A.J.A. said this:

"The courts have had occasion, more often than they would care to remember, particularly in the last decade, to consider matters raised by these cases, involving both the interests of young persons and societal interests in protecting them by the detection and punishment of this type of crime, which strikes at the familial roots of civilised society. The considerations involved in the appeal by the director on the basis that the sentences were manifestly inadequate have been the subject of consideration by the Court of Appeal in many recent cases, including R. v. Clarke [1996] 2 V.R.520 and R. v. O'Rourke [1997] 1 V.R.246. The director reminded us of statements made by earlier Courts of Appeal in R. v. Sposito (unreported, 8 June 1993) and, even earlier, in R. v. Wayland (unreported, 14 September 1992) by the Court of Criminal Appeal, passages from which bear repeating. In Wayland, the earlier of the two cases, Crockett, J., who gave the leading judgment, had this to say with respect to a charge of child abuse at 4:

The undoubted fact is that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect both to specific and general deterrence.

In Sposito, Marks J. said, at 4-5 of his judgment:

Over the recent past, the large number of incest cases before the Court has made it apparent that the commission of incest, repulsive and unnatural as one would assume it to be, is not the rarity for which a civilised community may be expected to hope. It must be inferred that the large number of incest cases which this Court now sees is merely a fraction of the number of offences with which the court system as a whole is concerned and those which are occurring without report. It is clear that the high numbers, however, reflect less an increase in the commission of the offences than, rather, an increase in the confidence of victims that their report of the crime will be sympathetically received and investigated.

A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim. An even more alarming revelation is the frequent failure in these cases of support for the victim from other members of the family."

79. Mr McArdle pointed out the respondent was indeed in a position of trust, for the victim was a relative with whom he had otherwise established rapport. Save for one, the offences occurred at night in houses where the child was living or staying and they took in a period of time and involved several episodes. No remorse had been demonstrated and threats to the child against disclosure were involved. In contending that the non-parole period fixed was manifestly inadequate, counsel submitted that upon its face it appeared unusual. The learned judge, it was said, had acknowledged this (337), referring to what he called the "mitigatory matters" put on the respondent's behalf.

82. When considered, however, these matters were in no way exceptional, counsel submitted. The age of the respondent and his previous good record, together with the circumstances of any sentence of imprisonment to be served, were matters commonly encountered in cases of this sort.

85. By way of explanation of what he contended was a manifestly inadequate non-parole period, counsel pointed to the judge's finding that the community would not be at risk of the respondent's re-offending. Mr McArdle argued that such a finding could not be justified on the report of Mr Cummins, as to which the judge appeared to, in part, rely. In this connection, reference was made to a decision of this Court in R. v. Zunica (unreported) judgment given 3 September 1998 and also to DPP v_. Bulfin_ [1998] 4 V.R.114.

88. As to ground 6, which alleged error in the cumulation directions given, counsel submitted that a greater part of the sentence on count 5 should have been directed to be served cumulatively on the sentence on count 4. The offences, he argued, were separate and both involved serious acts of sexual penetration. Further, it was put, total concurrency between counts 3 and 4 was not warranted even though on the evidence they were committed very close in point of time and might be viewed as one incident.

91. Mr Holdenson for the respondent disputed Mr McArdle's entitlement to raise a matter of alleged factual error in the judge relating to Mr Cummins's report and he cited in this connection R. v. Clarke [1996] 2 V.R.520 at 522. However, as I understood him, he was inclined to accept that it is permissible for counsel, on occasions, to suggest a reason or reasons why a manifestly inadequate or excessive sentence has been imposed. In any event, as my conclusions will show when stated, nothing turns on this matter in the disposition of this appeal.

94. Counsel submitted that the respondent fell to be sentenced as a first offender for a course of conduct which had occurred over a two to three week period some five years earlier. On the plea, it was further submitted, some "short but strong" evidence was given as to the respondent's character and this was not challenged by the Crown. It conveyed that the respondent was caring, considerate, responsible, respectable, trusted and hard working. So, too, it was said, the age of the respondent, 37, was significant in his favour.

97. Counsel also drew attention to the judge's finding that the offences were committed under considerable emotional stress which may have clouded the respondent's judgment. This finding at least reflected the view, said counsel, that the conduct of the respondent was out of character.

100. Mr Holdenson reminded the Court that the evidence of Mr Cummins, essentially unchallenged by the Crown, was to the effect that the respondent was not a paedophile (see p.4 of Mr Cummins's report and transcript 323-4).

103. Counsel then turned to the structure of the sentence imposed. The learned judge, he said, had observed the relevant formalities, making a determination pursuant to s.6D of the Sentencing Act, and he had then exercised the discretion invested in him by the following section of the Act in the respondent's favour. Mr Holdenson submitted that counts 3 and 4 followed each other by perhaps a period of minutes and this circumstance justified total concurrency of the sentences thereon.

106. He also cited Director of Public Prosecutions v. Carter [1998] 1 V.R.601.

109. Counsel continued his submissions by stressing that the sentencing judge had the advantage of seeing and hearing the complainant and the respondent give their evidence. His Honour had acted intuitively, it was submitted, but upon a sound basis, it being open to his Honour to find that the respondent had particularly good prospects of rehabilitation, that he was unlikely to re-offend and that it was not necessary to give much weight to the sentencing principle of specific deterrence - all these matters being of relevance to the individual and total effective sentences, together with the non-parole period.

112. It was not open to this Court, Mr Holdenson submitted, to intervene on the basis that it would have exercised its discretion in a different manner. Further, it could not be said that the sentence imposed on the respondent was manifestly inadequate.

115. If the above submissions be valid, so the argument went, the Court should take the view that this matter does not fall within the class of cases appropriate for the bringing of a Crown appeal. (See Clarke supra and R. v. O'Rourke [1997] 1 V.R.246.)

118. Should, however, re-sentencing occur, Mr Holdenson concluded, then this Court, having regard to the principle of "double jeopardy", should impose a lesser sentence than that which otherwise should have been imposed. (See Clarke supra and R. v. Boxtel [1994] 2 V.R.98.)

124. Despite the able and persistent efforts of Mr Holdenson, in my opinion this is a plain case of manifestly inadequate individual sentences, cumulation directions, total effective sentence and non-parole period. Specifically, the objective facts of the offences, and his Honour's own categorisation of them, cannot be reconciled with the sentences actually imposed, giving due weight to matters favourable to the respondent. As the learned judge said, the offences were "extremely serious" and involved breach of the trust of a boy not yet eight years old. His Honour properly described them as "disgraceful". I would uphold the grounds pleaded. In the event of the other members of the Court being of a like opinion, it will fall to this Court to re-sentence the respondent with consequential consideration of directions for cumulation and concurrency.

127. In the event of re-sentencing I would propose that the respondent be sentenced as follows:

135. Those sentences postulate a finding that following conviction on counts 1 and 2 the respondent falls to be sentenced as a serious sexual offender.

138. I would also propose that three months of the sentence imposed on count 2 and six months of the sentence imposed on count 5 be served cumulatively upon each other and upon the sentence imposed on count 4, the sentences otherwise to be served concurrently. This would make for a total effective sentence of five years and nine months and I would further propose that a non-parole period of three years be fixed. In so proposing, I have had regard to the principle of double jeopardy as it relates to appeals of this character.

141. In addition to other relevant matters, those sentences reflect, as to counts 4 and 5, the seriousness of the buggery and the oral penile penetration to ejaculation of a young child by an adult relative with penetration lasting several minutes. The child was occasioned pain and was warned against disclosure on each occasion.

144. I would propose that the appeal be allowed and the respondent be re-sentenced accordingly.

The appeal of the Acting Director of Public Prosecutions for the State of Victoria is allowed, the sentence imposed on the respondent in the court below is quashed and in lieu thereof he is sentenced as follows:

The Court indicates that for counts 3, 4 and 5 the respondent fell to be sentenced as a serious sexual offender. The Court directs that three months of the sentence on count 2 and six months of the sentence on count 5 be served cumulatively upon each other and cumulatively upon the sentence imposed on count 4, the sentences on counts 3 and 4 to be served concurrently, making for a total effective sentence of five years and nine months. The Court fixes a non-parole period of three years.

166. The Court declares that the period of 139 days is the period of pre-sentence detention already served by the respondent as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.

172. We will grant the respondent a certificate under s.15(1) of the Appeal Costs Act.