R v NKM [2001] VSCA 71

2. I will invite Charles, J.A. to deliver the first judgment in this appeal.

6. On 20 June 2000 the appellant pleaded guilty to two presentments (numbered M00151570.2A and M00151570.2B) in the County Court at Morwell containing a number of allegations in relation to offences against a daughter, AEM, and a son, GLM. In the first presentment ("2A") the appellant was charged with two counts of indecent assault and 13 counts of incest between 21 March 1975 and 31 December 1991, all relating to AEM. Save for the two counts of indecent assault, these were all representative counts. The maximum penalty for indecent assault was five years and for incest was 20 years' imprisonment. In the second presentment ("2B") the appellant was charged with four counts of indecent assault, one count of attempted buggery and one of buggery of a male aged under 14 years, all relating to GLM. The maximum penalties were five years, 10 years and 20 years' imprisonment respectively.

9. A plea was heard during which victim impact statements by AEM and GLM were tendered and evidence was given by the appellant himself and his sister. On 21 June 2000 the judge sentenced the appellant on presentment 2A on the two counts of indecent assault to six months' imprisonment in each case, on three counts of incest to 18 months' imprisonment in each case, on two counts of incest to 15 months and on the remaining eight counts of incest to 12 months' imprisonment in each case respectively. Orders for cumulation were made, producing a total effective sentence on the counts relating to AEM of nine years and nine months' imprisonment. In relation to presentment 2B the judge sentenced the appellant on each of the four counts of indecent assault to three months' imprisonment, on the count of attempted buggery to 12 months and on the count of buggery to 18 months' imprisonment. An

order for cumulation produced a total effective sentence on the offences relating to GLM of two years' imprisonment. The judge ordered that these two total effective sentences be served cumulatively, producing a total effective sentence on both presentments of 11-and-three-quarter years, and fixed a non-parole period of 9 years. The appellant now appeals pursuant to leave granted on 8 December 2000 pursuant to s.582 of the Crimes Act 1958 on the grounds, first, that the sentence is manifestly excessive, secondly that the judge erred by failing to order greater concurrency of sentences upon the respective counts and thirdly by ordering that the sentences on the two presentments be served wholly cumulatively, and erred in applying the principle of totality.

13. The circumstances of the offences in relation to GLM were as follows. In 1969, when GLM was aged six, he suffered a serious cycling accident and fractured both his thighs. He spent nine months in hospital before returning home shortly after his seventh birthday and was unable to stand up without crutches and required constant physiotherapy. About a year later it was necessary for him to return to hospital for final surgery to have his bones reset. The sexual abuse commenced some weeks after his first return home in 1970. GLM entered his parents' bedroom to tell them that his legs were sore and aching. The appellant was alone in bed. He told GLM to lie next to him in bed and then inserted his hand down the front of the boy's pyjamas and fondled his penis. After a short while the appellant took his hand away and moistened it. He then put his hand on the boy's penis and masturbated his son until an erection was produced. He touched the boy's anus and attempted to insert his penis, which the boy resisted. He placed his hand again on the boy's penis and resumed stroking it. He then inserted his penis into the boy's anus and thrust three or four times before withdrawing.

16. In sentencing reasons the judge described the offences against the daughter, after first referring to the high reputation the appellant had obtained in public life, where he was widely regarded as a loyal friend and reliable employee and businessman. His Honour continued -

"Behind this public life lay a private life of sexual depravity. He began the seduction of his daughter when she was 12 years of age, first achieved sexual intercourse about a year later and maintained thereafter an incestuous relationship until she was 29 years of age. This relationship continued throughout all the changes of employment and residence, and persisted despite her twice becoming pregnant, which pregnancies were artificially terminated. For practical purposes she became his surrogate wife, he having groomed her for that role."

His Honour's extremely succinct statement of the appellant's behaviour towards his daughter is correct in every particular, save that it substantially understates what occurred over a period of 17 years, and the full tragedy of how he has effectively destroyed AEM's life. She has been left, in the end, with no relationship with her family, save GLM, her only relation who can understand her, and not judge her, because of the abuse to which he also was subjected. AEM's statement to the police is more than 40 pages long. When the appellant gave evidence during the plea he admitted having read his daughter's police and victim impact statements, and did not attempt to challenge any aspect of these devastating records of his criminality. A reading of them in full tells a most distressing story of a very manipulative man's long and careful seduction of his twelve-year-old daughter, the continuing subjection of her to his sexual demands, followed by a period of nearly 17 years in which he was able to satisfy his every sexual need upon her at will, maintaining his control over her by repeated humiliation and the exercise of a father's power over a daughter.

21. During his sentencing reasons the judge referred to the "monstrous nature of the crimes committed over many years" by the appellant, a very moderate statement having regard to the circumstances disclosed and unchallenged in the various statements by the victims of the appellant's appalling breach of trust towards his children. As the President observed in R. v. Wakime[1]:

"Incest is an abhorrent crime. His Honour correctly recognised the crime's capacity to erode decent family life and the trust and confidence of its victims. This Court has said that it ought not to turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children. As the Court has indicated in the past, if fathers wish to claim guardianship rights over their children, they have an overriding responsibility to assume their obligations to protect, inter alia, the moral welfare of those children. Incest simply undermines the role of guardianship and destroys the entire concept of family unity, and that is why this Court in particular is continually reminding itself and other courts that incest ought to attract condign punishment."

25. The case made for the appellant in this Court under the second ground was that the judge erred in making orders as to total cumulation of sentence between the counts relating to the son and daughter. The offences against the son occurred on one day between March 1970 and March 1971. The offences against the daughter occurred between March 1974 and December 1991. It was put that at the time of both sets of offences the appellant was suffering a high degree of stress, anxiety and sexual dysfunction. There should, accordingly, it was submitted, be some concurrency between the offences on the presentments. There should have been greater concurrency because of the appellant's age, his lack of subsequent criminality, his ill health, the fact that a lengthy sentence of imprisonment would be particularly onerous and that he had worked hard to support his family. Under ground 1, like submissions were made that the sentences are manifestly excessive having regard to his background and his long and unsatisfactory marriage which caused sexual dysfunction. It was put that this is a very heavy sentence upon a man aged 61 with ill-health and a good work record. There is evidence of remorse and the appellant had pleaded guilty.

28. For the Crown, it was submitted that the sentence is not manifestly excessive having regard to the fact that the offences against AEM commenced when she was 12 years old and lasted until she was 29. Against GLM, the son, the offences were committed when he was seven years old. For the daughter the appellant's offending resulted in two pregnancies which the appellant arranged to have terminated. In relation to both complainants there was clearly a very gross breach of trust on the part of the appellant. All matters put in mitigation on behalf of the appellant were taken into account by the judge and it was submitted that although the sentence is at the higher end of the appropriate range, so too was the appellant's offending. Due regard was, it was submitted, paid to the appellant's background and his character reference. As to ground 2, it was submitted that the judge was entitled to order total cumulation of the sentences on the two presentments and in so doing did not offend principles of totality. There was little evidence to support the view that the appellant was suffering from a high degree of stress, anxiety or sexual dysfunction, and the judge had in any event taken into account the appellant's background and found it possible to speculate that this had caused some sexual dysfunction leading to "the surrogation of his wife by his daughter". It was submitted that the appellant, in his conduct in relation to both children, had breached their trust and affected their lives in a most profound way. The two presentments, it was said, contain discrete sets of offences and the judge was therefore clearly entitled to order total cumulation.

31. It is well-established that a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation[2]. In Grabovac, Ormiston, J.A. said[3] that:

"It remains therefore for me to express my conclusions as to the proper method to be adopted in sentencing on multiple offences. In general a Court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words: where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a 'crushing' sentence."

35. In R. v. RHMcL[4] this Court allowed an appeal against conviction in part, the consequence being that convictions on four counts of sexual abuse against the appellant's children were set aside and a new trial was ordered. The appellant had at first instance been sentenced on 16 counts to a total effective sentence of 12 years' imprisonment, and a non-parole period of 10 years was fixed. The setting aside of four of these convictions produced the result that the total effective sentence, if no further order were made, would have been 8½ years' imprisonment, with a non-parole period of 10 years. It was accepted in argument that the Court had power, by virtue of s.569(1) of the Crimes Act 1958, to alter the non-parole period, but a question arose as to the Court's power, under this section, to vary, by increasing, the remaining individual sentences and the head sentence. The Court concluded that the individual sentences and the total effective sentence of 8½ years, for the convictions which stood, were manifestly inadequate. Accordingly it exercised the power under s.569(1) to pass increased sentences as it thought proper with the result that the appellant's head sentence and non-parole period remained unchanged, notwithstanding that four of the 16 convictions had been set aside. An appeal was taken to the High Court[5] but the appeal was dismissed. In the joint judgment of Gleeson, C.J. and Gaudron and Callinan, JJ.[6] the judgment of Batt, J.A. in this Court (with whom the Chief Justice and Kenny, J.A. had agreed) was said to have shown no error of principle or reasoning. McHugh, Gummow and Hayne, JJ. said[7] that this Court had power to increase the sentences on the remaining convictions and that it made no error in determining that it was appropriate to increase the sentences in the manner in which it did. Their Honours said[8] that:

"Given the long course and nature of the appellant's criminality, it would have been an error on the part of the Court of Appeal to have left the remaining sentences standing, sentences which individually and collectively were then manifestly inadequate to reflect the appellant's criminality."

Kirby, J. dissented. In the judgment of Gleeson, C.J., Gaudron and Callinan, JJ., the decision of this Court in Lomax, which Batt, J.A. had followed, was mentioned[9] on several occasions with apparent approval.

40. In this Court when Mr Tehan for the appellant began his argument, he was at once warned that his amended grounds (which relied on inadequate concurrency of sentence and argued that excessive cumulation had been ordered by the sentencing judge) immediately raised questions as to the inadequacy of the individual sentences previously imposed. Counsel was warned that there was a question whether the sentences were manifestly inadequate, infringing the principles laid down in Ryan, Lomax and Grabovac, and that this Court might be obliged to increase them, possibly substantially. Mr Tehan accepted, in the light of the High Court's decision in RHMcL, that the Court had such power and, as I followed his argument, did not seek to contest the view that the individual sentences previously imposed as to the counts of incest, buggery and attempted buggery were all manifestly inadequate.

43. In the present case, with all respect to the very experienced sentencing judge, the sentences imposed under presentment 2A on all the counts of incest, and under presentment 2B on the counts of attempted buggery and buggery were, in my view, manifestly inadequate to reflect the seriousness of the offences. This Court should not, I think, leave standing individual sentences of such inadequacy the effect of which, in my view, could only be to demean the inherent criminality of the appellant's conduct. Sentencing error being thus established, if the other members of the Court agree, the appeal must be allowed and the sentencing discretion must be re-exercised.

46. A number of matters must be taken into account in mitigation of penalty. The appellant pleaded guilty. Since he is now 61, he will serve his sentence in the declining years of his life. His last offending took place in 1991, now a full decade ago. There has been considerable delay in the prosecution of the offences. Since the offences were made public the appellant has been subjected to considerable public odium and has been ostracised by most of his family and to some extent in the wider community. His health is not perfect, since he suffers from diverticulitis and depression. He was a person with no prior and has no subsequent convictions and was of otherwise good character, particularly having regard to the letter of reference from Mr F.M. Driscoll which was tendered during the plea. The appellant, in his evidence during the plea, showed a degree of remorse, which is also demonstrated by his guilty plea. Since the offences were made public he has lost his employment, and has done charitable work. Some explanation at least for the offences is to be found in his unfortunate childhood, his background, and the circumstances of a marriage which was unhappy and very stressful, and led no doubt to a degree of sexual dysfunction on his part. As the sentencing judge said, these matters attract considerable sympathy. Furthermore, specific deterrence would play little or no part in the construction of the sentence in all the circumstances.

49. Mr Tehan accepted that counts 2, 7 and 9 in presentment 2A should attract the highest penalty. He accepted that these should attract a sentence of four years, and suggested that the appropriate overall sentence was one of 10 years' imprisonment with a non-parole period of seven years.

52. I would propose re-sentencing the appellant in the following way. Under presentment 2A I would leave standing the sentences imposed on counts 1 and 8. On counts 3 to 6 inclusive and 10 to 15 inclusive I would sentence the appellant to four years' imprisonment in each case. On count 2, the first act of incest, and counts 7 and 9, the two later acts of incest leading to pregnancies, I would sentence the appellant to five years' imprisonment in each case. I would order that two years of each of the sentences imposed on counts 7 and 9 be made cumulative upon count 2 and upon each other, and that the sentences otherwise be served concurrently, leading to a total effective sentence of nine years on this presentment.

55. On presentment 2B I would leave standing the sentences imposed on counts 1, 2, 3 and 5. On count 4 I would sentence the appellant to two years' imprisonment

and on count 6 to four years' imprisonment, all to be served concurrently.

59. Having regard to the various matters in mitigation to which I have previously referred and the principle of totality, I would make two years of the sentence imposed on presentment 2B cumulative upon the sentence imposed on presentment 2A, making a total effective sentence on both presentments of 11 years' imprisonment. I would fix a non-parole period of eight years.

63. I agree, for the reasons given by my brother Charles, that this appeal ought to be allowed and that there be substituted the sentence which he proposes.

71. The formal order of the Court will be as follows:

The appeal against the sentences imposed by the County Court in respect of the offences alleged in the two presentments ("2A" and "2B") is allowed.

The sentences imposed by the County Court are quashed and in lieu thereof the Court imposes the following sentences.

In respect of the offences alleged in presentment 2A -

on counts 3 to 6 inclusive and 10 to 15 inclusive - 4 years on each count;

We order that two years of each of the sentences imposed on counts 7 and 9 be served cumulatively upon each other and upon the sentence imposed upon count 2. Otherwise the sentences imposed on the charges in this presentment are to be served concurrently. Thus, on presentment 2A the total sentence will be one of 9 years.

In respect of presentment 2B we impose sentences as follows:

counts 1, 2, 3 and 5 - 3 months' imprisonment on each count;

Those sentences are to be served concurrently. We order that two years of the sentence imposed on presentment 2B be served cumulatively upon the sentences imposed on presentment 2A, that is, upon 9 years. Thus, on both presentments, the total effective sentence will be one of 11 years. We order that the appellant serve a minimum period of 8 years before becoming eligible for parole.

Pursuant to s.6F of the Sentencing Act 1991, we record that the appellant has been sentenced as a serious sexual offender in respect of counts 4 to 7 inclusive and 9 to 15 inclusive on presentment 2A and counts 4 and 6 on presentment 2B, and we direct that that fact be entered in the records of the Court.

We declare pursuant to s.18 of the Sentencing Act that the appellant has served a period of 329 days pursuant to the sentences imposed, this time having been served between the date of sentence and the date of this appeal. Pursuant to s.18(4) of the Act we direct that the fact of this declaration and its details be entered in the records of the Court.

[1] [1997] 1 V.R. 242 at 244.

[2] See R. v. Ryan [1982] HCA 30; (1982) 149 C.L.R. 1; R. v. Lomax [1998] 1 V.R. 551 at 564; DPP v. Grabovac [1998] 1 V.R. 664.

[5] RHMcL v. The Queen [2000] HCA 46.