R v O'Neill [2005] VSCA 248

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 On 9 November 2004 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging 34 counts -

• Indecent assault on a male under the age of 16 (7 counts) - counts 1, 3, 6, 7, 8, 10 and 11. The maximum penalty for this offence was 5 years' imprisonment.

• Indecent assault on a male person (2 counts) - counts 2 and 5. The maximum penalty was 5 years' imprisonment.

• Gross indecency with a male (1 count) - count 4. The maximum penalty was 3 years' imprisonment.

• Attempted buggery (1 count) - count 9. The maximum penalty was 10 years' imprisonment.

• Indecent assault (11 counts) - counts 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 24. The maximum penalty was 5 years' imprisonment.

• Rape (2 counts) - counts 22 and 23. The maximum penalty was 10 years' imprisonment.

• Indecent act with a child under 16 (10 counts) - counts 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34. The maximum penalty was 10 years' imprisonment.

2 The plea then proceeded. The appellant admitted five previous convictions from three court appearances, none of which related to sexual offences. Thirteen victim impact statements were filed. During the plea in mitigation, counsel for the appellant tendered a report by Mr Jeffrey Cummins dated 8 November 2004 and a further report by Dr John King dated 27 October 2004. Mr Cummins was called and gave lengthy evidence. Counsel for the appellant conceded that an immediate custodial sentence was the only appropriate sentencing disposition. He contended however that a shorter than usual non-parole period would be appropriate.

3 On 19 November 2004 the appellant was sentenced as follows -

• count 1 - 12 months' imprisonment

• count 2 - 4 months' imprisonment

• count 3 - 9 months' imprisonment

• count 4 - 12 months' imprisonment

• count 5 - 9 months' imprisonment

• count 6 - 4 months' imprisonment

• count 7 - 4 months' imprisonment

• count 8 - 9 months' imprisonment

• count 9 - 2 years 6 months' imprisonment

• count 10 - 12 months' imprisonment

• count 11 - 4 months' imprisonment

• count 12 - 6 months' imprisonment

• count 13 - 6 months' imprisonment

• count 14 - 9 months' imprisonment

• count 15 - 4 months' imprisonment

• count 16 - 6 months' imprisonment

• count 17 - 12 months' imprisonment

• count 18 - 6 months' imprisonment

• count 19 - 6 months' imprisonment

• count 20 - 4 months' imprisonment

• count 21 - 6 months' imprisonment

• count 22 - 5 years' imprisonment

• count 23 - 5 years' imprisonment

• count 24 - 9 months' imprisonment

• count 25 - 6 months' imprisonment

• count 26 - 9 months' imprisonment

• count 27 - 12 months' imprisonment

• count 28 - 6 months' imprisonment

• count 29 - no sentence announced

• count 30 - 6 months' imprisonment

• count 31 - 6 months' imprisonment

• count 32 - 4 months' imprisonment

• count 33 - 12 months' imprisonment

• count 34 - 9 months' imprisonment.

In the afternoon of 24 November 2004 the judge imposed in relation to count 29 a sentence of six months' imprisonment.

4 The judge then directed that count 22 become the base sentence and ordered cumulation on a number of sentences. On 24 November the judge recalled the matter for correction of the sentences and again in the afternoon of 24 November for a further sentence correction. The final orders made by the judge were that count 22 be the base sentence and that four years of the sentence imposed on count 23, one year of the sentence imposed on count 9, three months of the sentence imposed on counts 1, 4, 10, 17, 27 and 33, two months of the sentence imposed on counts 3, 5, 8, 14, 24, 26 and 27, and one month of the sentence imposed on counts 2, 6, 7, 11, 12, 13, 15, 16, 18, 19, 20, 21, 25, 28, 29, 30, 31 and 32 be served cumulatively on the base sentence, resulting in a total effective sentence of 14 years and two months' imprisonment. The judge directed that the appellant serve a minimum term of 11 years' imprisonment before becoming eligible for parole.

5 The appellant was declared a serious sexual offender.

6 The appellant sought leave to appeal against sentence on the grounds that -

1. The judge erred in failing to make a finding, in the absence of any evidence to the contrary, that the appellant had not offended since 1993.

2. The judge failed to take into account sufficiently or at all the evidence regarding the appellant's rehabilitation to the date of sentence, and evidence as to his ongoing prospects for rehabilitation.

3. The judge gave insufficient weight to the appellant's plea of guilty in that her Honour failed to take into account the clear evidence that the appellant was genuinely remorseful.

4. The sentence is manifestly excessive.

7 On 17 June the appellant was granted leave to appeal against sentence under s.582 of the Crimes Act 1958.

8 The circumstances of the appellant's offences were contained in a written summary provided by the prosecutor at the hearing of the plea which is available, both as an exhibit and in pp. 2-20 of the transcript of the plea. They were also dealt with at length in the judge's sentencing reasons. It is sufficient to say that the appellant's offences involved 23 complainants, who were between the ages of 10 and 16 at the relevant times, and the offending continued over a period of some 21 years, between 1972 and 1993. Thirty-four separate offences were involved. They took place in circumstances which included acquiescence in relation to the consumption of alcohol by under-aged complainants until they were intoxicated, the use on occasions of a pornographic video, and serious breaches of trust by the appellant. The appellant coached junior football and basketball teams in the Castlemaine area and his house premises contained a shed which was used as a form of gymnasium with some weightlifting equipment. It became a hangout centre for members of junior basketball and football teams which he coached. The appellant also became involved in taking under-aged boys on camps for their sporting teams.

9 During the plea Mr Cummins gave evidence which the sentencing judge summarised as follows -

1. The appellant had suffered a 15-20% physical compromise as a result of a stroke and his age and present frailty would make prison a more difficult experience for him than for most others.

2. The appellant was very remorseful and embarrassed over his offending.

3. The appellant was described as psycho-sexually immature with poor social skills and having an inadequate and dependent personality style and that he presented as almost childlike. Consequently the appellant would find it much easier to interact with adolescent males. The appellant saw his offending as sexual experimentation both on his part and that of his victims.

4. Mr Cummins described the offences as situational and opportunistic rather than predatory, that the appellant took advantage of situations that were part of his ongoing activities.

5. The appellant had lived an insular adult life bereft of intimacy, such that the wrongfulness of what he did was not fully apparent to him.

6. Mr Cummins believed that the appellant's chances of reoffending were minimal and that he would be most amenable to supervision.

7. Mr Cummins said that strictly speaking he should not be defined as a paedophile, but as a hebophile, that is, a man sexually attracted to adolescent rather than prepubescent boys.

10 The judge made reference to the victim impact statements which had been submitted and which showed that many of the victims in question had suffered considerable emotional trauma as a result of the offending. A number of the victims had left Castlemaine and found it difficult to go back and visit. A number were on anti-depressants, suffering low self-esteem and mood swings, with difficulty in relationships, and having communication difficulties. A number were fearful of sexual relationships and others had been traumatised by the discovery that their siblings were also involved.

11 The judge was unable to accept a number of the statements made by Mr Cummins. Given the number of victims and the period of time over which the offences continued, her Honour did not accept that the appellant could not comprehend the wrongness of his activities to the level described by Mr Cummins. Nor did her Honour accept that the appellant was more properly described as a hebophile than a paedophile. Her Honour rejected the view that the appellant could have remained oblivious to societal views about adult men forcing uninvited sexual activity on adolescent and prepubescent boys. Furthermore her Honour said that -

"The description of your sexual offending as situational and opportunistic cannot hold when one considers the number of boys with whom you had contact over the years and to whom you had sexual recourse, nor do I regard the alcohol provided by you as simply contextual, as was submitted by your counsel, and indicative of an inappropriate view of these boys as mates."

Her Honour regarded the two counts of rape, counts 22 and 23, each of which involved the rape of a 13-year-old boy, both of whom had consumed alcohol (although by whom the alcohol was provided was not known), as clearly predatory and again militating against the notion that the appellant was engaged only in immature and naïve sexual experimentation.

12 Counsel for the appellant put to the judge that the appellant had not offended for some 10 to 12 years. In this Court, Mr Gilbert argued that a positive finding on this aspect of the plea would have been a significant matter in the appellant's favour.

13 In sentencing, the judge said the following -

"It was put by your counsel that you have not offended since 1993. There is no evidence to the contrary. However, given your systematic offending covers such a long period of time, I find it problematical to accept this submission. Ultimately I make no finding on this point, but sentence you, of course, only on the counts to which you have pleaded guilty."

14 The submission was that the issue was significant in the sentencing process because the appellant's offending had lasted for a very considerable time, and the argument that he had not offended since 1993 went to the extent of the appellant's rehabilitation, the importance of specific deterrence, his prospects of re-offending, and the reduced need to protect the public from the appellant upon his release.

15 The matter arose in this way. The presentment alleged 34 offences, three of which (counts 28, 29 and 30) alleged offences occurring between 1992 and 1994 or 1995. All other counts related to earlier dates or periods. There had been police investigations for the purpose of uncovering any later offences, but none had been reported. The appellant had informed Mr Cummins that he had stopped offending in 1993. Accordingly, although the appellant gave "no comment" answers to the police (on legal advice) and did not give evidence during the plea, it was argued that the judge should have accepted that no offence had occurred after 1993.

16 In my view, her Honour was entitled, on the available evidence, to say that she did not accept this view. If the matter had stood there, I would have found no error in her Honour's rejection of the submission of counsel for the appellant at the plea. But the matter went further.

17 During the plea the prosecutor submitted that the judge should not readily accept Mr Cummins's opinions and conclusions, in particular that the appellant was less of a risk for re-offending in the future, at which point her Honour interjected -

"I know it's a crystal ball thing, but the fact that there's been something in the region of ten years without re-offending, before the intervention of police, I think, is a factor that I can take into account to some extent."

By this comment, the judge, I think, clearly indicated that she then accepted as a fact that the appellant had not re-offended since 1993 or thereabouts, and that this was a factor to be taken into account "to some extent".

18 On the other hand, the statement in the judge's sentencing reasons previously quoted can only be taken as showing that her Honour, after the plea concluded, on reconsideration changed her mind on this issue, but without informing the appellant's legal advisers, and without giving them any opportunity for the calling of further evidence on the point.

19 In so doing, I think, with respect, that the judge denied the appellant procedural fairness in the hearing of the plea.[1] Counsel had been led to believe, as it seems to me, that his submission that there had been a substantial period without reoffending had been accepted. Had the judge informed counsel that her attitude to this issue had changed, the appellant and his advisers would have been entitled to seek the opportunity of putting further evidence before the judge, as, for example, by sworn evidence from the appellant himself, that no offence had occurred since 1993. It cannot be doubted that the matter was at least of some significance, as is shown by the judge's statement to the prosecutor[2] that this was a factor to be taken into account to some extent.

20 It follows that ground 1 succeeds.

21 Her Honour stated in sentencing reasons that the appellant had "some rehabilitative prospects". It is argued for the appellant that there was, however, a deal of evidence that the appellant had undergone a significant process of rehabilitation and that he was unlikely to re-offend. Reference is made to the fact that he had ceased his voluntary activity with local sporting clubs some years before his arrest, he was aged 60 at the time of sentencing, had suffered a stroke in August 2002, had no diagnosed psycho-sexual or personality disorder, and would inevitably undergo the sexual offenders' program during his incarceration. It was Mr Cummins's evidence that the appellant "now presents as being very amenable to treatment" and "represents a minimal risk of re-offending". In the light of this evidence it was submitted that her Honour gave insufficient weight to the appellant's prospects for rehabilitation and hence the reduced need to protect the public from him.

22 There is, I think, nothing in this ground. The judge referred at some length to the evidence of Mr Cummins and, as I have said, accepted that the appellant had some rehabilitative prospects. In these circumstances I do not think it can be said that her Honour failed to give due and proper weight to his prospects for rehabilitation.

23 The judge said in sentencing reasons that she had had regard to the appellant's plea of guilty which, although entered late, is "of some significance", both in terms of saving court time and expense and in relieving a large number of persons from the stress of having to give evidence. Mr Gilbert argued that there was ample evidence that the plea was accompanied by genuine remorse, but that the sentencing remarks do not reveal that her Honour turned her mind to this important aspect of the plea of guilty.

24 The judge, as I have said, referred expressly to the plea of guilty, stating that it was of some significance. Her Honour also referred to Mr Cummins's opinion that the appellant was very remorseful and embarrassed over his offending. Her Honour did specifically take issue with some of Mr Cummins's evidence but did not suggest that she rejected his statement as to the appellant's remorse. In my view ground 3 is not made out.

25 Finally it is argued that the sentence is manifestly excessive. The argument is that, taking into account the relevant maximum penalty available at the time, the fact that although large in number the majority of the counts on the presentment were said not to involve offending of a grave nature, and the matters put on the plea, the total effective sentence was very heavy indeed for a man aged 60 with no relevant prior history. Mr Gilbert submitted that it was difficult to imagine the length of the sentence which the appellant would have received following a plea of not guilty. He also argued that given his age and his compromised physical condition as a result of his stroke, the sentence will operate more harshly on him. It was submitted that the sentence was also crushing.

26 Notwithstanding these matters, the overall sentence imposed cannot in my view be said to be manifestly excessive. The evidence showed a very substantial number of victims of a young and vulnerable age, damaged by the actions of the appellant in circumstances of very serious breaches of trust. The offending occurred over a period exceeding 20 years, and the appellant's offences were often accompanied by the consumption of alcohol by under-aged victims until they were intoxicated. Her Honour had multiple victim impact statements before her referring to the ongoing and serious effects of the appellant's offending.

27 Her Honour's sentencing reasons were carefully expressed, and arrived at after an adjournment to enable her to give thought to the submissions put during the plea. Her sentencing remarks show a careful analysis of relevant sentencing considerations and in particular the evidence of Mr Cummins, whose evidence was, as I have said, firmly rejected on a number of points. Her Honour was, I think, entitled to reject the view that the appellant was unable to comprehend the wrongfulness of his actions, particularly having regard to the evidence that on a number of occasions the appellant had told complainants that they should not tell anyone what he had done. Her Honour found the appellant's offending was not just situational and opportunistic, and plainly accepted that there had been a breach of trust involved in the determined and systematic exploitation of boys in the appellant's care. General deterrence was obviously very important. There was a need to denounce the appellant's offences and for condign punishment and to include the protection of the community in the appropriate sentence. Her Honour took into account the plea of guilty and the stage at which it was entered, the fact that the prior convictions were not relevant, that the age and health of the appellant would make imprisonment more difficult for him, and that he had some rehabilitative prospects. In all these circumstances, and taking into account the maximum penalty applicable to each count, the individual sentences imposed by the judge seem to me moderate, as also were the orders for cumulation.

28 The appeal having succeeded on ground 1, one must then consider the consequences in the re-exercise of the discretion.

29 The judge found, as I have said, that the plea of guilty was of some significance and that the appellant had rehabilitative prospects. The fact that the appellant had not re-offended between 1993 (or 1995) and 2002 was not in my view nearly as significant as the appellant would have it. The offences had continued for a very long time, were very serious, and had caused great harm to a large number of individuals. Lack of subsequent offending no doubt suggested that there was a reduced risk to the community and less need for protection. But this lack of subsequent offending might also have been explained by the appellant's age and his having less opportunity to offend by virtue of his having given up the voluntary occupations which had given him the opportunities for sexually abusing boys, of which he had long availed himself.

30 In these circumstances, I would impose exactly the same individual sentences on each count as those fixed by the sentencing judge and make the same orders for cumulation of sentence, leaving the total effective sentence at 14 years and 2 months. I would, however, set aside the non-parole period fixed, and substitute a non-parole period of 10 years.

33 The Court will order as follows:

The appeal is allowed.

The individual sentences imposed below and the orders for cumulation are confirmed. The total effective sentence remains 14 years and 2 months.

The Court sets aside the non-parole period fixed and substitutes a non-parole period of 10 years.

The appellant is declared a serious sexual offender in respect of all counts on and after count 3, excluding count 4.

The Court declares that, as at this day, the period to be reckoned as already served under the sentence is 342 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.

The Court also confirms the sexual registration declaration made in the court below.

[1] Parker v. D.P.P. (1992) 28 N.S.W.L.R. 283 per Kirby, P. at 296; Chow v. D.P.P. (1992) 28 N.S.W.L.R. 593 per Kirby, P. at 606; R. v. Quach, Court of Appeal, unreported, 12 March 1997; R. v. Downie and Dandy [1998] 2 V.R. 517 at 520 per Callaway, J.A.

[2] Transcript of the plea, at p.111.