R v O'Rourke [1998] VSC 255; [1998] VICSC 40

On some date between 12 and 20 January 1997 the victim was left alone with the applicant while Ms McDonald left on a short errand to pick up her child. During this time the applicant took the victim into his daughter's bedroom, locked the door to the room and removed his clothing and hers or caused her to remove her clothing, although there is some doubt as to how much clothing was in fact removed. The applicant asked the victim to lie on the bed and then positioned the victim on top of him so that her head was facing his feet. The applicant asked her to suck his penis, telling her that he would give her a lollypop if she did. She did so. At the same time the applicant also licked the victim's vagina.

Why he did this is not clear, for the applicant could give no real explanation as to why it happened. The judge noted that the applicant said he felt sick and that he received no sexual pleasure or satisfaction from it, but one may have leave to doubt these answers.

After a short time the applicant was disturbed when he heard Ms McDonald entering the house again. He quickly dressed himself and the victim. Ms McDonald confronted the applicant while he and the victim were still in the bedroom, asking him in no uncertain terms what had been going on. The applicant told Ms McDonald that he had smacked the victim for writing on the walls in the bedroom. She had started to cry so he had kissed her on the bottom to make it better.

In due course, at a time which is not clear, the victim was given the lollypop promised by the applicant. The victim disclosed the true facts to Ms McDonald the following day, resulting in her confronting the applicant with the victim's allegation that, "I kissed Lindsay's penis and Lindsay kissed my bum", but the applicant denied the allegation. It seems Ms McDonald took no steps either to inform the police or the victim's mother, but one may not be greatly surprised at this. Nor did the victim herself complain to her own mother until late April.

On 28 April 1997 the victim made complaint to her mother. The police were informed and on 29 April a video and audio tape interview was conducted with the victim. On 6 May the applicant was interviewed by the police. He admitted the offence, although he stated that his memory was vague due to his consumption of alcohol and Valium tablets on the day of that offence. The applicant stated that he felt sick while committing the offence and that he did not know why he had done it. His answers, therefore, to the police interview were as full as this explanation permitted. In some respects he might seem to have been a little evasive, and, in particular, he denied taking off his and the victim's clothing, although that was otherwise alleged to have occurred. The applicant was charged on the same day as the interview took place.

In July, at a committal mention, he indicated that he would plead guilty, and so he has been taken to have indicated that intention from the earliest practicable date. At the sentencing hearing on 10th October 1997 he was represented by counsel who made a full and detailed plea on his behalf and tendered a comprehensive psychological report from Mr Cummins. Mr Cummins' conclusions were that the applicant was a chronic alcoholic who needed treatment which so far he had avoided. He said that the offence may have been caused by his alcoholic condition but he was not sure. He was not technically a paedophile but his behaviour was of that type. Although the applicant thought that there was no real risk of his re-offending, Mr Cummins had concluded that, as long as he continued drinking heavily, there was a risk that he could reoffend in a similar manner.

The applicant is now 32 and on the plea admitted 21 convictions from seven previous court appearances over the years 1982 to 1994. None of the convictions were for sexual offences and he had had the good fortune to escape gaol for all of the convictions, leading to a suggestion that some at least of them were also attributable to his drinking habits.

Three days thereafter, he was sentenced in the manner I have stated earlier. The learned judge's reasons succinctly set out the facts and the matters relied upon and, as was conceded on this application, refer to each of the matters which are now said not to have been given sufficient weight.

I shall set out the grounds of this application as I shall deal with each of them. In the first place it was said that the judge gave insufficient weight to the following factors: (a) the applicant's co-operation with the police and his plea of guilty; (b) his level of intoxication at the time of offending; (c) his remorse and conduct since the offence; and (d) his lack of relevant prior convictions.

As I have said, each of these matters, as was conceded before this Court, was dealt with in one way or another by the learned judge, but it was argued that they were not given sufficient weight and that the sentence, especially the head sentence, demonstrated that he had failed to take them properly into account. Thus, there is no doubt it was accepted that, once he was confronted with these allegations, he had made admissions sufficient to convict him and pleaded guilty at the first available time.

Counsel for the applicant, in the course of an admirable and well organized argument, pointed to the fact that each of these matters should lead to a substantial discount and reduction of the relevant term. Each was relevant; co-operation and early plea, the fact that no evidence would have to be called at either committal or trial and that the victim would be spared from giving evidence at such a committal or trial, and that the expense of both proceedings would be saved. The argument to me appeared to suggest that each cumulatively should lead to "very considerable" reduction in the sentence.

To my way of thinking, the first two logically led to the rest, and this case is no different from any other trial for a sexual offence where admissions are made and an early plea of guilty is entered. The factors vary from case to case and, although all factors are here present, one must keep in mind the balance between the need to pay regard to other sentencing factors and the need to recognize the benefit to those involved in the present case. The judge, as I said, referred to all. There was no incorrect statement of principle and, in the end, one must have regard to the sentence ultimately passed, as counsel conceded, and to which I shall return.

Likewise with the applicant's intoxication. Here the judge set out a correct summary of the relevant facts. As counsel both here and below allowed, his degree of intoxication may have been a partial explanation for the offence but it could not excuse it. Counsel suggested that, as this was the only time he had committed an offence of this kind, the intoxication might show that he would not offend in this way again, but this was not the conclusion of Mr Cummins. The applicant's loss of inhibition had led to a number of offences in the past, or so it would appear, and it might do so again. In the end, however, the judge paid regard to it in a particular way. He saw that the applicant might, with encouragement, wean himself from this addiction if properly treated and if he applied himself to that treatment, and so reduce the risk of offending in the future. Consequently, he directed what was proportionately a longer than usual non-parole period of 18 months to give effect to this finding and in the hope that, with treatment, this lack of inhibition might lead him not to give effect to his lawless instincts.

As to remorse, there is no doubt again that it was referred to by the judge and it is a matter which might reduce, and ought to reduce, the appropriate sentence. There is here no demonstrable error, unless that can be shown by reference to the ultimate sentences passed.

So also with the lack of relevant prior convictions. This was noted by the sentencing judge, but it is also a case where the applicant had a bad record and had been given innumerable opportunities, possibly far too many. Here the non-parole period again seems, in part, to reflect some opportunity for reform. I can see no basis for thinking that this was not properly referred to, unless it were that the overall sentence was too high.

The second ground related to what was said to be the giving of too much weight to specific and general deterrence. As to the latter, it seems well accepted that in this kind of offence general deterrence is of great importance unless special factors can be demonstrated that could not be shown here, and this is an offence of a particular kind and committed in a particular way, which required a sentence which did give proper reflection to the necessity for general deterrence for committing this type of offence.

As to specific deterrence, this argument rested upon the unlikelihood of his reoffending. As stated earlier, Mr Cummins saw there was a risk that he might re-offend while he continued drinking. Specific deterrence is necessary in order to ensure that, so far as practicable, an applicant will take steps to overcome particular problems of committing offences and, in this case, to overcome the risk that he might commit one offence or another by reason of his drinking problems.

As to the claim that this offence was not premeditated, that is only partly true. For how long it was planned is not clear, but the applicant deliberately went to the room where his visitor was, locked the door and, to a lesser or greater extent, took off both of their clothes in order to commit this particular offence.

In all, therefore, I cannot see that specific deterrence was irrelevant in this case.

The third ground was that the learned judge "erred by guessing at the effects of the offending on the victim". Here the absence of a victim impact statement was referred to, but the answer is that the judge in fact said only:

"The effects upon your victim can only be guessed at. Time alone will tell whether she has suffered significant or no significant trauma as a result of what you have done."

There is, thus, no finding of the kind complained of and the judge rightly pointed out the absence of any evidence. It cannot, therefore, be said that the observation he in fact made was incorrect or was likely to have led to an excessive sentence.

Finally, the fourth ground relied upon was that in all the circumstances the sentence was manifestly excessive. No separate argument was put to us on this ground except the assertion that it was well outside the range of appropriate sentences. I do not agree; it was well within the range of sentences appropriate for this particularly revolting seduction of a small girl resulting in the form of attack to which he has pleaded guilty. More particularly, counsel said in relation to the other grounds that the ultimate sentence was excessive in that the sentencing judge had failed to take into account sufficiently the relevant factors. The judge stated that he had done so, and I cannot be satisfied that the sentence showed a failure to reduce what would otherwise have been a higher sentence in a manner which was not appropriate, having regard to those factors upon which counsel and the learned sentencing judge rightly placed weight.

I do not believe that, in relation to this offence committed on an innocent girl by an adult placed in a position of trust, if only for a few days, that a higher sentence would not have been appropriate if these factors relied upon had been absent. After all, the statutory maximum was at the time 20 years and in fact the sentence imposed was only one fifth thereof.

In all, therefore, I am not persuaded that the sentence was manifestly excessive, either the head term or the non-parole term, and I would dismiss this application.

PHILLIPS, C.J.: I agree with the conclusions of Ormiston, J.A. and I would subscribe to the reasons his Honour has mentioned for reaching them.

KENNY, J.A.: I too would dismiss the application for the reasons stated by Ormiston, J.A.

PHILLIPS, C.J.: The order of the court is that the application for leave to appeal against sentence stands dismissed.

I certify that this and the eight preceding pages are a true copy of the reasons for judgment of the Court of Appeal of the Supreme Court of Victoria (Phillips, CJ, Ormiston JA and Kenny JA) delivered on 18 March 1998

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