R v M K G [2006] VSCA 131

2 On 10 June 2005, the appellant pleaded guilty to two counts of committing an indecent act with a child under the age of 16 years (counts 1 and 2) and two counts of incest (counts 3 and 4) contrary to ss.47(1) and 44(1) of the Crimes Act 1958, respectively. The maximum prescribed penalty for the former is 10 years' imprisonment and for incest, 25 years' imprisonment. On 10 August 2005, after hearing a plea in mitigation, the learned sentencing judge sentenced the appellant to twelve months' imprisonment in respect of count 1, which was a representative count, and to six months' imprisonment on count 2. In respect of each of counts 3 and 4, both of which were representative counts for which the appellant was sentenced as a serious offender pursuant to s.6F(1) of the Sentencing Act 1991, her Honour imposed sentences of three years' imprisonment. Her Honour also declared that the appellant was a registrable offender under the Sex Offenders Registration Act 2004. The learned sentencing judge ultimately ordered that the sentence on count 3 was to be the base sentence and that the sentences on counts 1, 2 and 4 were to be served cumulatively upon the sentence imposed on count 3, thereby producing a total effective sentence of seven and a half years' imprisonment. Her Honour directed that the appellant serve a minimum term of four years' imprisonment before becoming eligible for parole. By notice dated 24 August 2005, the appellant sought leave to appeal against the sentence pursuant to s.582 of the Crimes Act 1958 and, on 3 February 2006, a judge of this Court granted the appellant leave (it having been conceded by the Crown that there was a reasonably arguable ground of appeal).

3 Before dealing with the grounds of appeal, it is necessary to set out briefly the circumstances of the offending. At the time of the offences, the appellant was aged 42 to 43 years. The complainant, who is the appellant's biological daughter, was aged 12 and 13 years during the period of the offending. The conduct the subject of count 1, which, as I have said, was a representative count, occurred between 1 December 2002 and 1 March 2003 in the lounge room of the appellant's home. The complainant was accustomed to watching television on the couch with the appellant, "having a cuddle". On a few occasions, when they were sitting in that or a like position, the appellant rubbed the complainant's vagina with his hand over the top of her pyjamas. The complainant was upset by these actions. The event that was the subject of count 2 occurred between 1 February and 30 April 2003. The appellant went into the complainant's bedroom as she was sleeping. He stood next to her bed for a few minutes and there masturbated, ejaculating on her leg. The complainant awoke during the course of this conduct and remonstrated with the appellant, who apologised to her, saying he would never do it again.

4 The conduct the subject of count 3, which was a representative count of sexual penetration, occurred between 1 January and 30 September 2003. On one occasion during that period, having become frightened by noises, the complainant went into the appellant's bed to sleep. At the time, the appellant's wife was at work. The appellant touched his daughter on her leg and her vagina and then inserted his finger into her vagina and moved it up and down, causing her to awaken. The complainant pretended to be asleep as she did not know what to do. When the appellant stopped, she got up and left the room. This behaviour continued once or twice a week while the appellant's wife was at work, until the latter gave birth in September 2003. The conduct the subject of count 4 - a representative count - occurred between 14 October 2003 and 28 February 2004 and consisted of the appellant penetrating the complainant's vagina with his fingers as she was sleeping in one of the rooms in the house. This type of penetration continued to occur on a monthly basis during this period while the complainant's mother was asleep.

5 I now turn to look briefly at the circumstances of the offender. He is now aged 45 years. His parents separated when he was seven years old. He and several siblings were placed in care, the appellant at a home in Burwood, and it would seem that he has had no contact with his mother since that time. His father died in 1985 and, since adulthood, he has had little contact with his siblings. It appears that, although the appellant was well cared for at the home at which he was placed, he did not experience a normal family life and, as he said to Mr Warren Simmons, a psychologist who assessed him at the request of his solicitor, he created a wall to protect himself emotionally from the age of seven, with the result that his emotional development was impeded.

6 The appellant left school at the age of 15 and had various jobs. In 1982 he began a relationship with a woman that lasted three years. In 1986, he commenced work at a television rental company and became interested in computers. Later, he became responsible for the company's computer network. Eventually, in 1997, he successfully set up his own computer and network consultancy business. In 1988, the appellant had married the complainant's mother and they have five children, the eldest of whom is the complainant. It appears that the marriage had been deteriorating for some years before the offending and has since broken down. The appellant continues to have contact with his children other than the complainant and has established a new relationship.

7 The appellant has no relevant prior convictions. He has expressed remorse for his present offending and has given evidence that he would like to turn back the clock to a time before the offences had happened. Although Mr Simmons had some reservations about the extent of the appellant's understanding of the negative consequences of his actions - the appellant stating that he "loved his daughter too much" - he said that the appellant would benefit from a treatment program and that this would significantly reduce the likelihood of his re-offending. The report of Mr Simmons notes that there was no evidence to suggest that the appellant has a more general attraction to young girls and that his offending appears to have occurred in the context of a marital breakdown which coincided with his daughter's reaching the age of puberty.

8 There are six grounds of appeal, all of which attack the judge's full cumulation of all the sentences imposed, as follows:

1. Manifest excess of the total effective sentence.

2. Failure properly to apply the totality principle.

3. Error in making all the sentences on the separate counts cumulative upon each other.

4. Failure properly to apply the law regarding serious sexual offenders.

5. Error in applying the law as to representative counts.

6. Failure to properly take into account the mitigating factors in setting the head sentence.

9 Mr Boyce, for the appellant, contended under cover of grounds 2, 3, 4 and 5 that the judge erred in making the full cumulation orders, apparently so as to "reflect the representative nature of Counts 1, 3 and 4 and the need to treat [the appellant] as a serious sexual offender in respect of Counts 3 and 4". Such cumulation, said counsel, failed to give any, or any sufficient, recognition to the fact that there was a temporal overlap in the offending of all the counts except count 4,[1] that the offending was of a general nature, committed on the one victim and that the offending occurred in the context of a progressive marital breakdown. It was submitted that, in the circumstances of the case, which included the appellant's early plea of guilty, his expression of remorse, the low risk of re-offending, the fact that he had no relevant prior convictions and had sought treatment voluntarily, and where the appellant's incarceration would cause him to lose his business that he had built up over many years, it was, according to counsel, "striking" that complete cumulation as between all the sentences was imposed, in particular, that full cumulation was imposed in respect of count 2 which was not a representative count and in respect of which the appellant was not sentenced as a serious offender. It was argued that, in any event, it is a rare case where a serious sexual offender receives no concurrency in circumstances where it would otherwise be warranted. Moreover, it was said, the cumulation produced a sentence that offended the principle of totality.

10 I consider that her Honour's order for cumulation bespeaks error, but not for the reasons advanced by Mr Boyce. In my view, her Honour fell into one of the errors identified by Callaway, J.A. in R. v. McCorriston,[2] namely, failing to register the seriousness of one or more of the offences by requiring very short sentences and directing that they all be served cumulatively. It is plain enough that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation and concurrence, as well as totality.[3] In the present case, although the individual sentences are not "very short", for reasons mentioned later, they plainly fail to reflect the gravity of the offences and the offending conduct and the applicable sentencing principles. It seems that, in constructing the sentence, her Honour was "driven by", or gave undue prominence to, the perceived need to have full cumulation as a way of reflecting the representative nature of the three counts and the fact that the appellant came to be sentenced as a serious offender, with the result that the length of the individual sentences had to be modified so as to accommodate the principle of totality. It is plain enough that the offences, particularly those charged by counts 3 and 4, are of a most serious kind. The crime of incest is abhorred by the community. As Batt, J.A. said in R. v. VZ,[4] it is a repugnant offence that strikes at the core of the family relationship and involves the breach of trust and the dereliction of protective duties. Furthermore, in this case, the young complainant had to endure the appellant's unnatural conduct towards her for almost 15 months. And the fact that the three counts were representative counts constitutes an aggravating factor, as was recognised in R. v. SBL.[5] That the appellant abused his parental position of moral superiority and trust in relation to the complainant cannot be sufficiently emphasised. Instead of protecting his young daughter, he did her serious harm. Moreover, the sentencing principles of general deterrence, denunciation and just punishment assumed considerable importance in this case. As I have said, I think that these factors are not reflected in the individual sentences. Their respective terms seem to have been impermissibly lowered in order to accommodate complete cumulation and the principle of totality.

11 In the circumstances, therefore, I consider that her Honour's sentencing discretion has been vitiated. Although, in view of this conclusion, it is not necessary to deal with the grounds based on alleged manifest excess - grounds 1 and 6 - I mention for completeness that I do not consider that the total effective sentence is beyond the relevant range, notwithstanding the early plea of guilty, expression of remorse by the appellant, his attempt to obtain treatment and his other personal circumstances. I also consider that the non-parole period, as related to the head sentence, is generously low.

12 Be that as it may, if the other members of the Court agree with my above conclusions, the appellant would fall to be re-sentenced by this Court. In those circumstances, I would impose the following terms of imprisonment: count 1 - two years, count 2 - one year, count 3 - four-and-a-half years, and count 4 - four years. In respect of counts 3 and 4, the sentences would be imposed on the basis that the appellant was a serious offender within the meaning of the Sentencing Act 1991. I would order that nine months of the sentence imposed on count 1, six months of the sentence imposed on count 2 and fifteen months of the sentence imposed on count 4 be cumulated on the sentence imposed on count 3 and upon each other, thereby producing a total effective sentence of seven years' imprisonment. I would order a non-parole period of four years.

14 Despite what was said in SBL, views still differ as to whether the fact that a count is a representative count is properly to be regarded as an aggravating factor in the sentencing process. Despite that, I agree, with respect, with what has been said by Chernov, J.A. and with the sentencing disposition that he proposes.

The appeal is allowed.

The sentences passed below are quashed and in lieu thereof the appellant is sentenced to be imprisoned on count 1 for a term of two years, on count 2 for a term of one year, on count 3 for a term of four years and six months, and on count 4 for a term of four years.

The Court directs that nine months of the sentence imposed on count 1, six months of the sentence imposed on count 2 and 15 months of the sentence imposed on count 4 be cumulated on the sentence imposed on count 3 and upon each other, making a total effective sentence of seven years' imprisonment.

A non-parole period of four years is fixed.

The appellant is sentenced for the offences the subject matter of counts 3 and 4 as a serious sexual offender and it is ordered that that fact be entered in the records of the Court.

It is declared that the period of 303 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details are to be noted in the records of the Court.

[1] In this context, counsel also said that count 4, though not strictly temporally coincident, follows closely upon count 3 so that the decision to "split" the digital penetration counts appears "arbitrary" given that both are representative counts.

[2] [2000] VSCA 200 at [13].

[3] Pearce v. The Queen (1998) 194 C.L.R. 610 at 623-624 per McHugh, Hayne and Callinan, JJ. See also R. v. Grabovac [1998] 1 V.R. 664 at 680 per Ormiston, J.A. and R. v. Izzard [2003] VSCA 152; (2003) 7 V.R. 480 at 484-485 per Callaway, J.A.

[4] [1998] VSCA 32; [1998] 7 V.R. 693 at 699.

[5] [1998] VSCA 144; [1999] 1 V.R. 706.