R v M W H [2001] VSCA 196

5. After hearing a plea for leniency on his behalf and taking time for consideration, the judge sentenced the appellant on 21st August 2000 to terms of imprisonment ranging from eight months' imprisonment to two-and-a-half years' imprisonment on the counts of indecent assault, from four to five years' imprisonment on the counts of rape and from eight to 12 months' imprisonment on the counts of assault occasioning actual bodily harm. Because s.16(1) of the Sentencing Act 1991 applied to some counts and s.6E applied to others, directions for both cumulation and concurrency were given. Their practical effect was that parts of the sentences imposed on counts 3, 4, 5, 8, 9 and 18 were to be served cumulatively upon each other and upon the sentence imposed on count 16, making a total effective sentence of 12 years' imprisonment. His Honour fixed a non-parole period of nine years and made a declaration regarding pre-sentence detention.

8. Leave to appeal was granted on 27th October 2000. There are four grounds of appeal:

"1. That the learned sentencing judge erred in having insufficient regard to the appellant's admission of the offences in question; 2. That the learned sentencing judge erred in having insufficient regard to the appellant's plea of guilty or to adequately identify the extent by which he had reduced the sentence imposed by reason of the appellant's plea of guilty to the counts on the presentment; 3. That the learned sentencing judge erred in having insufficient regard to the long passage of time between the commission of the offences and the imposition of the sentence; 4. That the sentence imposed by the sentencing judge was manifestly excessive in all the circumstances of the case."

Ground 4 was argued as the primary ground, of which the other three grounds were in effect particulars. Although it was said that the judge failed to treat rehabilitation as a continuing process, that was part of the argument concerning manifest excess. It was not contended that his Honour fell into specific error of a kind that would, by itself, reopen the sentencing discretion.

13. Before turning to counsel's submissions I shall say something about the circumstances both of the offences and of the offender. The problem in this case is that there are powerful aggravating features attaching to the former and powerful mitigating features pertaining to the latter. As so often happens in sentencing, they are incommensurable.

16. The offences were committed against a widow, ten years older than the appellant, with whom he entered into a de facto relationship shortly after her husband's death, and against her children. To preserve her anonymity I shall refer to her as his partner. She had six children by her marriage, to whom I shall refer by initials: four girls, A, B, C and D, born in August 1952, April 1954, January 1956 and January 1958 respectively; a boy, E, born in November 1959; and another girl, F, born in March 1962. The appellant and his partner also had two children.

19. The statements I am about to summarize refer also to conduct in addition to the conduct the subject of the 18 counts on the presentment. They were not representative counts and the judge made it clear that he sentenced the appellant only for the offences to which he had pleaded guilty, but the additional conduct was taken into account, without objection, to provide a realistic context and to show that the offences were not isolated incidents.

22. A described the appellant as a violent alcoholic. The first time he sexually abused her was when she was ten years old. She was sitting at the dinner table. The appellant told her to go to the main bedroom of the house. The appellant followed her into the room, telling her that she was old enough to start entering into sexual relationships. He removed his trousers and underpants, took her hand and placed it on his erect penis. He forced her to masturbate him until he ejaculated on the floor. The appellant told her that this would occur on a regular basis and that she was not to tell her mother because she would not be believed. Two days later the appellant made A get out of bed and took her into the kitchen, where he told her to lie on the floor and open her legs. He climbed on top of her and introduced his penis into her vagina. She was scared and did not know what was happening. That kind of incident continued on a regular basis until she left home at the age of 16. The appellant had sexual intercourse with her in the week prior to her leaving. The foregoing conduct gave rise to counts 1 to 3.

25. The appellant's partner described her relationship with him as violent and marked by his excessive consumption of alcohol. She gave birth to their first child, a daughter, in November 1963. About two months later the appellant walked up to her, when she was nursing the child, and, for no apparent reason, punched her in the face. The blanket in which the baby was wrapped was red with the complainant's blood. That incident was the foundation for count 4.

28. E described the appellant as a very violent alcoholic who would belt the children every day. Recalling an incident when he was five or six years old, he said that he was sitting at the kitchen table when the appellant came over to him. The appellant grabbed him by the back of the head and smashed his head into the corner of the table, causing his head to bleed. The boy was taken to hospital and required stitches. When he was in grade 4 he and his sister F decided to play truant, for which, when he returned home, the appellant gave him a severe beating. He was hit numerous times about the head and sent to his room. Those incidents gave rise to counts 5 and 6.

31. B also described the appellant as a violent alcoholic, who was constantly physically abusive towards her siblings and herself. Although there had been other incidents of a sexual nature during the previous six to 12 months, the first act of sexual intercourse took place when she was in her first year of high school. The appellant came into her bedroom and told her to go to her mother's room, where he had sexual intercourse with her against her wishes. Her mother was not at home. She was at work. A week later, when her mother was again at work, the appellant again had sexual intercourse with the girl in her mother's bed. That continued on a weekly basis and B became pregnant to the appellant at the age of 16. The foregoing course of conduct gave rise to counts 7 and 8.

34. C was the first of the victims to make a complaint, which she did to the South Australian police in 1998. She said that she had been physically abused by the appellant from about the age of six and sexually abused from about the age of ten. She described the first occasion of sexual abuse. Her mother was at work and the other children were outside. The appellant called C into the bedroom and told her to get into bed with him. He lay on top of her and introduced his penis into her vagina. That caused pain and she told him to stop, trying to push him away, but he continued. She bled profusely and was too ashamed to report the incident. C said that she was constantly abused, sexually, physically and mentally, by the appellant until she left home at the age of 15. She recalled an incident when she was about 11 or 12 when the appellant punched her so hard that he knocked her unconscious. One of her eyes completely closed over from the swelling and was black with bruising. Her account was the foundation for counts 9 and 10.

37. D described the appellant as being physically violent on a regular basis towards her and other family members from an early stage in his relationship with her mother. She described an incident in about 1968 when she was punched in the face by the appellant and then bashed and punched again. The first incident of sexual abuse took place when she was ten years old. The appellant came into D's bedroom and woke her up, telling her to come to his room. There he made her take his penis into her mouth, ejaculated and forced her to swallow the ejaculate. He repeated that conduct a week later and again a week after that, on the latter occasion inserting his fingers into her vagina at the same time. The first occasion of vaginal sexual intercourse also took place when she was ten and continued on a regular basis thereafter. At the age of about thirteen-and-a-half D became pregnant to the appellant. The pregnancy was terminated and, about a month later, the appellant resumed sexual intercourse with her. Her account was the foundation for counts 11 to 17.

40. Count 18 concerned an incident related by F. When she was about seven or eight, all the children were playing in a bedroom. The appellant demanded to know who had misbehaved but none of the children spoke up. He then kicked F in the mouth.

43. I said that I should also say something of the circumstances of the offender before turning to counsel's submissions. He was born in North Fitzroy in June 1944. His parents, who were both alcoholics, separated when he was only about 18 months old. The appellant remained with his mother and, at the age of eight, was sexually abused by her landlord. He also suffered violence at the hands of his mother and a man with whom she formed a relationship. He left school at year 7 and is barely literate. After working for sawmills he started work with the State Electricity Commission in 1965, leaving in 1967. In that year he sustained a fractured skull and other injuries in a motor car accident. Severe headaches, tension and occasional depression did not respond well to medication and he was admitted as a voluntary patient to Larundel Psychiatric Hospital for seven weeks in 1972.[2] The appellant's relationship with his partner came to an end in 1973. He returned to the SEC in 1976 and retired in 1990 as a result of another injury. He was married in 1983 but his wife drowned in 1989. He was in a stable de facto relationship at the time of the plea and had been working on the Mornington Peninsula. His employer and others spoke highly of him both as a worker and as a man who had contributed to the community, doing voluntary work for charities and the local RSL.

46. Such a condensed account obscures the force of the plea that was made below and the submissions that were made before us. It was acknowledged that the appellant had been a violent alcoholic who had acted in a terrible way and that the crimes themselves were monstrous; but it was stressed that his own dysfunctional background had left him totally ill-equipped for life and that he had completely reformed. There was no likelihood of re-offending. He had, some ten years ago, stopped drinking alcohol. His employer spoke of him as a hard-working man in a position of trust, who was widely respected and had contributed to the community. The offences had been committed between 1962 and 1972. The appellant was a different person from the young man who had committed them.

49. Mr Tehan conceded, inevitably, that each of the individual sentences was within the range, but he submitted that both the total effective sentence and the non-parole period were manifestly excessive. Counsel's primary emphasis was on the time that had elapsed since the commission of the offences, but he also directed submissions to the appellant's plea of guilty and admissions. He contended that they should have attracted a very large discount. The plea had been entered at the earliest possible stage. None of the allegations had been contested, even though the appellant could not remember one of the complainants. It was readily apparent, and the judge found, that the appellant was genuinely remorseful. Counsel pointed out that that remorse was evinced not only by the record of interview and his plea but also by a letter of apology that he had written and by evidence given on the plea.

52. Mr Tehan developed a thoughtful series of submissions as to the effects of delay, using that word to encompass the effluxion of time for whatever reason between the commission of an offence and the offender's standing for sentence. It is not uncommon for sexual offences against children to be discovered many years later, not least because the victims are too frightened or embarrassed to come forward and are reluctant to relive such experiences later, but here the delay was between 28 and 38 years. Counsel referred to a number of cases and distinguished the two cases to which the judge had referred, but only by way of example, in his sentencing remarks. They were R. v. Ridsdale[3] and R. v. Law[4]. Ridsdale, in particular, was said to be very different from the present case. The appellant had ceased offending at about the age at which Ridsdale began offending. Law was not a case of rehabilitation except in the limited sense that the respondent was unlikely to reoffend.[5]

55. It is the effects of delay that are important for sentencing. As in R. v. Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution[6] or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light.[7] There may be practical considerations that require a marked degree of leniency to be extended.[8] The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation.[9] The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life.[10] He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.[11]

58. Principle and common sense, even without the authorities to which counsel referred, sustain the proposition that there has been reformation in a very strong sense in the present case. There are passages in the sentencing remarks that show that his Honour considered specific deterrence to be irrelevant. He found that the appellant had rehabilitated himself over the period since the commission of the offences. He had not further offended and had overcome his alcohol problem. The judge accepted that the appellant was genuinely remorseful. He was in a stable relationship and stable employment. He had been involved in the local community with charitable and other similar work.

61. One has great sympathy for the victims of these crimes: except for his dysfunctional background, one has no sympathy for the young man who committed them: but one has considerable sympathy for the different person who, in his late 50s, must spend at least nine years, and may have to spend 12 years, in prison.

64. In those circumstances it is as well to recall the advice given to sentencing judges by Street, C.J. in R. v. Rushby[12]. It is equally applicable to appellate judges. Delivering the judgment of a court whose other members were Lee and Slattery, JJ., his Honour said:

"The determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements. Inevitably a sentencing judge will be influenced by subjective considerations. There is the ever-present human situation of a man or woman standing before the court to suffer the solemn pronouncement of criminal judgment. But a judge is not cast adrift on an uncharted sea involving his bearing unaided a personal burden of attempting to achieve abstract justice. The judicial discretion underlying the formulation of a sentence must be exercised with due regard to principles of law deducible from authoritative decisions. The philosophy of the Common Law requires adherence to established doctrines and principles that have over years, and in multiple instances, been found to be best calculated to serve the ends of justice. The adjudicative process, if it is to be consistent and ordered, must observe and apply these doctrines and principles, and thus must necessarily be attended by a requisite disengagement and detachment. It is cool reason, not passion or generosity, that must characterize sentencing, as all other acts of judgment. Although the discretion left to the judge is wide, the doctrines and principles established by the Common Law in regard to sentencing provide the chart that both relieves the judge from too close a personal involvement with the case in hand, and promotes consistency of approach on the part of individual judges."

There is a difference between cool reason and cold-heartedness. The second-last sentence in that passage has to be understood in its context and in the light of other authorities.[13] The relevance of the passage for present purposes is that the judge must direct himself or herself in accordance with principle.

69. There are two areas of principle that govern the disposition of this appeal. First, there are the principles applicable to the fixing of non-parole periods. The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances.[14] For that reason, it cannot be fixed automatically by taking two years, or one-third or one-quarter, off the head sentence.[15] All the relevant factors have to be taken into account and they may be many and varied. They require discrete consideration of the factors bearing upon the question when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.[16] The reference to rehabilitation does not, however, obscure the fact that a non-parole period also has a penal element.[17]

72. In the present case the judge said this about the non-parole period:

"The court has to consider an appropriate minimum term. In the circumstances, I consider an appropriate minimum term to be nine years' imprisonment. I therefore direct that you serve nine years' imprisonment before being eligible for parole. In all the circumstances I consider the sentence imposed by the court to be appropriate and just."

It is clear that discrete consideration was given to the non-parole period. The reasons are not elaborate, but they need not be. It is inconceivable that, against the background of the plea and the balance of his Honour's sentencing remarks, the appellant's reformation and the other effects of delay were not taken into account in arriving at the sentence, including the non-parole period, that the court considered to be appropriate and just.

77. As I have earlier recorded, Mr Tehan submitted that both the total effective sentence and the non-parole period were manifestly excessive. I do not accept the first branch of that submission and my reasons for rejecting it bear upon my consideration of the second branch of the submission. The individual sentences were properly conceded to be within the range. There were seven victims and 18 counts, including eight counts of rape committed against children, sometimes at an age as low as ten. In those circumstances no heavy-handed cumulation was required to produce a total effective sentence of 12 years' imprisonment.[18] Great weight was to be given to the appellant's plea of guilty and his full admissions, but, if those factors had been absent, both the individual sentences and the total effective sentence would have been much longer. The effects of delay, including the appellant's reformation, were to be taken into account at this stage, and not only in considering the non-parole period, but 12 years' imprisonment is not manifestly excessive.

80. It is only the non-parole period that has caused me serious doubt about the sentencing disposition. In the face of complete rehabilitation after such a long period of time, one might have expected to find a shorter minimum term than one which equates to three-quarters of the head sentence[19], but I return to the principles summarized above. The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve and it has a penal element. His Honour evidently considered that a shorter non-parole period would not do justice in a sentencing process that had to include a large measure of punishment and denunciation as well as general deterrence.

83. Secondly, there are the principles constraining appellate intervention. The main principle was re-stated by the High Court in Lowndes v. R.[20] That case related to a Crown appeal against sentence, but the passage I am about to quote is equally applicable to an appeal against sentence by a person convicted. In a joint judgment of all seven members of the Court, their Honours said:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. ... Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic (35). The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

Footnote 35 referred to the well-known case of House v. R.[21]

88. As I said at the beginning of this judgment, there are powerful, and incommensurable, factors pulling in opposite directions. They troubled the judge, as they have troubled me. I may have been disposed to attach more weight to rehabilitation and less to punishment and general deterrence when I came to fix the non-parole period, but it is of the nature of a discretionary judgment that reasonable minds may legitimately differ about the weight to be given to competing considerations That is especially so in a case like this. The head sentence already

reflected the circumstances of mitigation as well as aggravation. Had there been no rehabilitation and no remorse, the sentence would have been much more severe than 12 years' imprisonment. Mindful of the care that his Honour gave to the task that the law confided to him and not to me, I cannot say that he was bound to weigh the factors differently. The character and gravity of the offences, even after such a very long time, left it open to him to consider that justice required the appellant to serve a minimum term of nine years' imprisonment.

98. I have had the advantage of reading the draft reasons prepared by Callaway, J.A. and O'Bryan, A.J.A. I gratefully adopt Callaway, J.A.'s statement of the circumstances of the crimes and his description of the appellant's life to that point and the appellant's subsequent regeneration. Unfortunately I differ in my opinion as to the disposition of the appeal.

101. There can be no gainsaying the horror of the crimes themselves. For a decade a family was held in thrall to the appellant's unrestrained lust and vicious temper. The suffering of the victims when the crimes were committed and the lasting effects of concentrated abuse over a substantial period of time upon their later lives are confirmed by victim impact statements.

104. On the other hand the transformation of the appellant from a violent, abusive alcoholic to a sober, hard-working and decent man, liked and respected by others in the community, was remarkable. The appellant's reformation was not due to detection of his crimes by the authorities but appears to have been the product of his own realization of the consequences of his actions. The youth who, at the age of 18 years, committed the first of the offences, was a recognizable result of the violence, sexual abuse and alcoholic excesses which he suffered and witnessed as a child. The man he became in the years after 1972 was altogether different.

107. 32 The last of the offences was committed in 1972. The fact that many years elapse before charges are laid is by no means unusual in the case of sexual crimes committed against the young and within members of a family. The intimidation which attended the commission of the crimes and the embarrassment which their public disclosure would necessarily cause largely explain the delay, so that the appellant cannot lay the blame for it at another's door. Nevertheless in the present case the length of the period between the commission of the last of the crimes and the laying of the charges was far longer than the period which has elapsed in most other cases. Further, the passage of time produced significant changes apart from the cessation of the offending. In the course of that time the appellant's life changed completely.[22] The appellant remained an alcoholic for some time after he separated from the family whom he had abused. He formed a relationship with and married a woman who was also an alcoholic. In 1989 she drowned while swimming after drinking. As a consequence the appellant stopped drinking and has not drunk any alcohol since. He commenced performing voluntary work for the Returned Servicemen's League and for old people in the district in which he lived. Those who knew him testified to his unselfish contributions to the community. His employer in evidence said:

"His reputation is one of an honest, hard-working and very charitable man."

There is little chance that the appellant will re-offend. The last of his crimes occurred 27 years ago. There was abundant evidence before the sentencing judge of the appellant's deep remorse. In effect the rehabilitation of the appellant appears to be complete.

112. In my opinion the foregoing considerations and the effect which they ought to have had upon the punitive and deterrent aspects of the sentencing process were not

adequately reflected in the sentence which was imposed on the appellant. I would have allowed the appeal for the purpose of fixing a lower term of imprisonment before the appellant was to become eligible for parole.

117. I have read in draft the reasons of Callaway, J.A. why he would dismiss the appeal. I agree in his reasons for dismissing the appeal. I agree that the total effective sentence was an appropriate exercise of the sentencing judge's sentencing discretion. His Honour gave very careful attention to all the relevant factors touching sentence. The more difficult task was to select the appropriate non-parole period having regard, in particular, to the time lapse since the applicant ceased offending, and his rehabilitation. Judicial minds will differ as to the appropriate period.

120. I agree with Callaway, J.A. that it is inappropriate to interfere with the decision of his Honour as to the non-parole period. To do so would mean that this Court would substitute its own opinion for the opinion of the sentencing judge in circumstances where only the non-parole period is in doubt. In my view the non-parole period of 9 years is not manifestly excessive. I too would dismiss the appeal.

[1] Crimes Act 1958, s.55(1) as amended by s.2 of the Crimes (Amendment) Act 1967. Section 55(3) did not apply.

[2] The judge took the head injury and personality factors referred to by a psychiatrist, Dr Wahr, into account as bearing on the appellant's culpability but, consistently with the plea, not as requiring moderation of the weight to be given to general deterrence.

[3] (1995) 78 A.Crim.R. 486.

[4] [1995] QCA 444; [1996] 2 Qd.R. 63.

[6] See, for example, R. v. Schwabeggar [1998] 4 V.R. 649 and R. v. Blanco [1999] NSWCCA 121; (1999) 106 A.Crim.R. 303. As to three of the possible effects of delay, see the latter case at [16].

[7] See, generally, R. v. Kane [1974] VicRp 90; [1974] V.R. 759 at 767; R. v. Quinlivan (unreported, Court of Criminal Appeal, 23rd May 1995) at 4-6; R. v. Law at 66 and R. v. King (1998) 99 A.Crim.R. 288 at 294.

[8] See, for example, R. v. Todd [1982] 2 N.S.W.L.R. 517 at 519-520. Neither R. v. Harrison (1990) 48 A.Crim.R. 197 nor the context in which the observations in Todd were cited with approval in Mill v. R. (1988) 166 C.L.R. 59 at 64 means that those observations bear only on totality. That is not their natural meaning and not how they were understood by Tadgell, J.A. in R. v. Miceli [1997] VSC 22; [1998] 4 V.R. 588 at 591.

[9] Sometimes I shall use the word "reformation". I intend no difference in meaning.

[11] Compare R. v. Duncan (1983) 47 A.L.R. 746 at 749.

[12] [1977] 1 N.S.W.L.R. 594 at 597.

[13] In R. v. Osenkowski (1982) 30 S.A.S.R. 212, for example, King, C.J. said at 212 that "[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".

[14] Power v. R. [1974] HCA 26; (1974) 131 C.L.R. 623 at 629; Deakin v. R. [1984] HCA 31; (1984) 58 A.L.J.R. 367 and Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at 531, 536 and 538.

[15] R. v. Pope [2000] VSCA 108; (2000) 112 A.Crim.R. 588 at [28] and the cases there cited. See also R. v. Harkness, Dang, Gnjatovic and Brooks [2001] VSCA 87 at [24].

[16] R. v. Mulvale (unreported, Court of Appeal, 20th February 1996) at 11.

[17] Bugmy v. R. at 538; R. v. Chan (1994) 76 A.Crim.R. 252 at 255 and R. v. VZ [1998] VSCA 32 at [15].

[18] That is so even if one disregards the applicability of s.6E of the Sentencing Act to ten of the 18 counts.

[19] Compare R. v. Bolton and Barker [1998] 1 V.R. 692 at 699.

[20] [1999] HCA 29; (1999) 195 C.L.R. 665 at [15].

[21] [1936] HCA 40; (1936) 55 C.L.R. 499. The passage most often cited is at 504-505. See also the next case in the same volume of the Commonwealth Law Reports, Cranssen v. R. [1936] HCA 42; (1936) 55 C.L.R. 509 at 519-520.

[22] As to the relevance of delay between the commission of the offence and sentence where the offender has become rehabilitated, see R. v. Todd [1982] 2 N.S.W.L.R. 517 at 519-20 per Street, C.J.; Mill v. R. (1988) 166 C.L.R. 59 at 64 per Wilson, Deane, Dawson, Toohey and Gaudron, JJ.; R. v. Bell (1981) 5 A.Crim.R. 347 at 351; R. v. Mulvale, unreported, 20 February 1996, Court of Appeal, at 11 per Callaway, J.A.