Prosecutions

Counsel for respondent: Mr D. Cordy

Solicitors for respondent: Messrs O'Farrell, Walters and

Robertson

PHILLIPS CJ The respondent, who is aged 38, pleaded guilty in the County Court at Bendigo last October to a presentment containing three counts of committing an indecent act with a child under sixteen (Counts 1, 3 and 4) and four counts of taking part in an act of sexual penetration with a child under ten (Counts 2, 5, 6 and 7). These offences, which were committed between May 1993 and January 1994 at Kangaroo Flat, carried maximum penalties of ten years and twenty years respectively.

2. The respondent admitted 21 prior convictions from nine court appearances between September 1978 and March 1993, including convictions for gross indecency and indecent assault on a male person in September 1978. He received suspended sentences of imprisonment under the Alcohol and Drug Dependent Persons Act for these offences. They were treated by the sentencing judge as operating to make the respondent a serious sexual offender upon conviction for the first count on the presentment (see 5.3 and s.5A of the Sentencing Act 1991. There was also a prior conviction for two counts of indecent assault on a female under sixteen incurred in September 1985.

3. After hearing a plea for leniency the judge sentenced the respondent as follows:

Count 1 - 18 months' imprisonment;

Count 2 - three years' imprisonment;

Counts 3 and 4 - l8 months' imprisonment on each count;

Counts 5, 6 and 7 - two years' imprisonment on each count.

His Honour directed that one year of the sentence imposed on Counts 5, 6 and 7 be served cumulatively upon the sentence imposed on Count 2, making for a total effective sentence of six years' imprisonment. His Honour fixed a non-parole period of three years and six months and made a declaration as to pre-sentence detention.

4. By way of notice dated 15th November last, the Director of Public Prosecutions appealed against sentence on the following ground:

"1. The learned sentencing judge erred in the

sentencing approach to a serious sexual offender.

Particulars -

(a) The learned sentencing judge erred in failing to apply

the provisions of s.5A of the Sentencing Act 1991 when he

fixed each individual sentence without regard to the

protection of the community;

(b) That such regard as the learned sentencing judge did

have to the protection of the community was given only

after the individual sentences had been determined. As a

result the learned sentencing judge had insufficient

regard to the need to protect the community and the

individual sentences and the total effective sentence

were therefore inadequate."

5. The victims of the respondent were four children. The victim in Counts 1, 2 and 3 was aged nine at material times. The respondent's conduct on these counts involved handling the boy's penis (Counts 1 and 3) and penetrating the boy's anus with his penis (Count 2). The victim in Count 4 was aged six at material times. The respondent fondled his penis. The victim in Count 5 was aged seven, and the respondent was regarded, at any rate, as his uncle. The respondent forced the boy's mouth open and forced his erect penis into the boy's mouth. Count 6 involved the respondent sucking the child's penis. Count 7 involved a brother of the victim in Counts 5 and 6 when he was aged five. The respondent sucked his penis and then said, "Don't tell anyone."

6. In any event, complaint was later made and the police called in, whereupon the respondent largely admitted his offences. The respondent used his status as an accepted visitor to the house of the victims in order to commit Counts 1, 2 and 4. Counts 5, 6 and 7 were committed at another house where the respondent was living and where the boys were staying on their school holidays.

7. I now turn to counsel's arguments on this appeal. Mr Coghlan for the appellant began his submissions by pointing out that the sentencing judge was required by s.5A(a) of the Sentencing Act 1991 to have regard to the protection of the community as the principal purpose of sentencing. The sentence on the respondent, counsel submitted, should have reflected the circumstance that the maximum sentence for Counts 1, 3 and 4 was ten years' imprisonment and that s.10 of the Sentencing Act had application, and, further, the circumstances that the maximum sentence for Counts 2, 5, 6 and 7 was twenty years' imprisonment and s.10 did not apply. And, so the argument went, when the judge fixed the individual sentences he did not have regard to the protection of the community, only appearing to so have regard, and then in an allied aspect, later on during the sentencing process. Counsel pointed out that the judge actually pronounced the individual sentences and then, and only then, referred to the aspect of protection of the community, but in terms suggesting s.5A(b) of the Sentencing Act.

8. Next, it was said, the judge did not pay proper regard to the respondent's prior convictions, although he was invited to do so. Properly considered, counsel argued, the prior convictions should have operated to aggravate the offences.

9. Mr Cordy for the respondent submitted the sentence was within range and that the Court should conclude that the sentencing judge correctly applied s.5A(a). Mr Cordy pointed out that the judge himself had introduced the decision of R. v. Cowburn, a decision of this Court, into discussions: see R. v. Cowburn (unreported; judgment given 29th September 1994). Consequently, Mr Cordy argued, this Court ought to assume that his Honour was thoroughly familiar with the regimen to be applied to serious sexual offenders in sentencing. Counsel said that the judge's familiarity with the regimen was demonstrable, and he pointed to a number of places in the transcript and proceeded to take the Court to those extracts. Finally, reference was made to the principle of double jeopardy, and counsel outlined the respondent's continuing progression in his rehabilitation in this connection.

10. I now turn to my conclusions. In my opinion, the ground pleaded has been made out. I have come to so conclude by reason of the following. Firstly, some of the sentences imposed on the individual counts appear to be very low, particularly in the light of the respondent's prior criminal record. The sentence on Count 4 of three years for an offence of anal penetration by penis of a child of six (against a maximum penalty of 20 years) and the sentence on Count 5 of oral penetration by penis upon a boy of seven years (against the same maximum) warrant particular mention in this regard.

11. Next, in his Honour's reasons for sentence it is to be observed that the judge declared (p.28) that he was of the opinion that a prison sentence is warranted for the offences. The judge goes on: "In determining the sentence to be imposed upon you I have had regard to the following matters". Thereafter are listed the respondent's plea of guilty; his remorse; his prior alcohol problems and rehabilitation; and the maximum penalties available for the offences. The judge then continued: "Having regard to these matters I sentence you as follows". Then the sentences on the individual counts are pronounced. Only thereafter does his Honour make a reference to the aspect of protection of the community, and then in terms that plainly enough refer to s.5A(b) of the Sentencing Act 1991. The remarks on p.30 of the reasons are not, I think, explanatory of the sentences earlier pronounced.

12. Accordingly, it is my opinion that this appeal should be allowed. Should the other members of the Court agree, it will fall to this Court to re-sentence the respondent. In that event I would propose that he be sentenced as follows:

Count l - 18 months' imprisonment;

Count 2 - five years' imprisonment;

Count 3 - 18 months' imprisonment;

Count 4 - 18 months' imprisonment;

Count 5 - three years' imprisonment;

Count 6 - two years' imprisonment

Count 7 - two years' imprisonment.

13. I would also propose that one year of the sentence on Count 5 and one year of the sentence on Count 7 be served cumulatively upon the sentence on Count 2, making for an effective term of seven years' imprisonment. I would also propose that a non-parole period of four-and-a-half years be fixed. In so proposing, I have had regard to the principle of double jeopardy: see R. v. Myers and Ward (judgment of this Court given on 31st August 1993).

The appeal of the Director of Public Prosecutions for the State of Victoria is allowed.

15. The sentence on the respondent in the court below is set aside and he is sentenced as follows:

Count l - 18 months' imprisonment;

Count 2 - five years' imprisonment;

Count 3 - 18 months' imprisonment;

Count 4 - 18 months' imprisonment;

Count 5 - three years' imprisonment;

Count 6 - two years' imprisonment;

Count 7 - two years' imprisonment.

16. The Court directs that one year of the sentence on Count 5 and one year of the sentence on Count 7 be served cumulatively upon the sentence on Count 2, making for an effective term of seven years' imprisonment. The Court fixes a non-parole period of four-and-a-half years.

17. The Court declares that the period of 138 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 the contents thereof be entered in the records of the Court.

HAMPEL J Despite his Honour's obvious familiarity with the relevant legislation and the cases, I agree with the learned Chief Justice that his Honour fell into error in the application of those principles, and the appeal should therefore succeed. I also agree with the orders proposed by the learned Chief Justice.

BATT J I too agree that his Honour fell into the error identified by the Chief Justice and that a different sentence should be passed, being that which the Chief Justice has proposed. I would only add one comment, namely that, as at present advised, I accept Mr Coghlan's submission that the passing of a disproportionate sentence is not the only way of achieving the purpose of the protection of the community referred to in para.(a) of s.5A of the Sentencing Act 1991.