R v Parfitt [2006] VSCA 91

1 I will ask Nettle, J.A. to deliver the first judgment.

2 On 27 May 2005 the appellant, Daniel Scott Parfitt, was arraigned before the County Court at Melbourne on one count of taking part in an act of sexual penetration with a female child between 10 and 16, contrary to s.45(2)(c) of the Crimes Act 1958. He pleaded guilty. After hearing a plea in mitigation, on 3 June 2005 the judge sentenced the appellant to be imprisoned for a period of three years and ordered that he serve 21 months' imprisonment before being eligible for parole.

3 By leave granted on 9 December 2005 the appellant now appeals against the sentence on grounds that:

1. The judge erred by imposing a sentence that incorporated, as an aggravating feature, acts of sexual penetration committed by the appellant with which he was not charged.

2. The judge erred in imposing a sentence that incorporated, as an aggravating feature, conduct which amounted to an element of the offence and thus exposed the appellant to double punishment.

3. The sentence is manifestly excessive.

4 The appellant was born on 8 November 1976, and at the time of the offending (between 1 February 2003 and 31 March 2003) was 26 years of age. The victim was born on 13 July 1988, and at the time of the offending was 14 years of age. The appellant was employed as a teacher's aide at the Warracknabeal Secondary College and the victim was a Year 9 student at that school. The appellant did not, however, have direct contact with the complainant in his capacity as a teacher's aide (and the Crown did not allege that the victim was otherwise under the appellant's care, supervision or authority).

5 The appellant was a talented sportsman who had competed at state and national levels in touch football, Rugby Union football, basketball and Australian Rules football. He played Australian Rules football for the local football club. Consequently, young girls of the victim's age were likely to think of the appellant as attractive and to be flattered by any attention that he may give them.

6 Towards the end of the school year in 2002, the appellant and the victim began to talk to each other during school recesses and after school and, when the new school year began in 2003, the appellant and the victim became friendlier towards each other and a relationship developed from there.

7 Matters first came to a head in about February 2003. In her statement to the police, the victim said that there was an occasion in the middle of February 2003 when the appellant asked her whether she would like to come around to his flat and that, when she said that she would, she and the appellant selected a Saturday morning when the victim's mother would be at work.

8 The victim later went to the appellant's flat on the Saturday morning as arranged and after entering the flat she sat on the couch with the appellant and talked. The victim said that the appellant told her that he liked her a lot and that she replied that she felt the same way towards him. With that they kissed, and the appellant touched the victim's breasts and digitally penetrated her vagina. The victim said that the appellant then removed the victim's clothes, put a condom on his penis, and penetrated the victim's vagina with his penis. The victim further stated that she felt the appellant ejaculate inside her and that when he withdrew and removed the condom it was so covered with ejaculate that she thought it might have broken. The victim said that she visited the appellant on subsequent occasions, but she claimed that sexual intercourse did not occur on any of those subsequent occasions.

9 The appellant was interviewed by police on 15 October 2003 and admitted having sexual intercourse with the victim. He said, moreover, that it was unprotected sex and that that had occurred approximately four to five times, either at his flat or at the victim's mother's house. The appellant further admitted that he knew at the time that the victim was only 14 years of age, and he knew that it was against the law to have sexual intercourse with a person who was under the age of 16 years.

10 The victim conceived, but the fact of her pregnancy was not confirmed until her mother and sister became suspicious of her weight gain well into the third trimester of the pregnancy. When the victim was then tested for pregnancy, it was found that she was so far advanced that she had no option other than to carry the baby to term. Ultimately, on 10 November 2003, she gave birth to a girl.

Ground 1: Uncharged acts as an aggravating feature

11 In the course of her sentencing remarks the judge referred to the appellant's admission that he had had sexual intercourse with the complainant on more than one occasion, and said as follows:

"10. As I have said, you have pleaded guilty to one count of engaging in an act of sexual penetration with a child under 16. The count refers to a single act, it is not a representative count. The single act, to which you have pleaded guilty, must, however, be seen in the context of what you told police of the relationship which you maintained with [the victim] over a period of six months. I refer to that relationship and take it into account as the background and context in which the single count, to which you have pleaded guilty, occurred.

11. The fact that there was a continuing relationship between you, means I cannot treat the count as a one off incident, immediately regretted and not repeated, or as a single isolated act. I am not, however, sentencing you for anything other than the one count, to which you have pleaded guilty."

12 The appellant contends that the judge thereby treated the other occasions of sexual intercourse as circumstances of aggravation and thereby treated as an aggravating feature of the charged offence conduct which could amount to the more serious offence of maintaining a relationship with a child under the age of 16, contrary to s.47A of the Crimes Act 1958. It follows in the appellant's submission that the judge's reasoning breached the general principle of sentencing expressed in R. v. De Simoni,[1] that:

" ... the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."[2]

13 In my judgment, the appellant's submission is not persuasive. So far from breaching the principle stated in De Simoni, it appears to me that the judge took considerable care to formulate the sentence precisely in accordance with that principle. Thus, as the judge said, she took the other acts of sexual intercourse into account as part of the background or context in which the charged offence was committed, and therefore as circumstances which precluded her from treating the charged offence as a one-off isolated occurrence immediately regretted and never repeated, but she did not treat the uncharged acts as circumstances of aggravation or otherwise as something for which the appellant was to be sentenced.

14 The appellant argues that the idea of assessing the gravity of the charged offence in the context of the uncharged offences is tantamount to treating the charged offence as a representative count, and therefore of aggravating penalty by reference to uncharged acts - in the same way, it is said, that penalty may be said to be aggravated in the case of a representative count.

15 In my judgment that argument is also misplaced. As Batt, J.A. explained in R. v. SBL,[3] the fact that a count is a representative count has two effects: It:

" ... preclude[s] its being said in mitigation that the offence was isolated ... [and] it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context."[4]

It is, however, only the second of those effects which is peculiar to a representative count. The first may be just as much applicable to a non-representative count.

16 It is true that in the passage from SBL just cited, Batt, J.A. used the word "context" to describe the second of the effects, and it is true that the judge in this case spoke in terms of placing the charged act in the "context" of the uncharged acts. But the notion of "context" is not peculiar to the second effect. Self evidently, the "context" in which an offence is committed may inform one or other or both effects according to whether the subject offence is a non-representative or representative count. So, in this case, the judge looked at the subject offence in context for the purposes only of the first effect and expressly excluded consideration of the second. As her Honour said, "The fact that there was a continuing relationship ... means I cannot treat the count as a one off incident, immediately regretted and not repeated, or as a single isolated act" but "I am not, however, sentencing you for anything other than the one count, to which you have pleaded guilty".

17 In the course of oral submissions, reference was also made to paragraphs [23] and [41] of the sentencing remarks, wherein, it was submitted, the judge had demonstrated that, contrary perhaps to what she had earlier said in her remarks, she had used the fact of the subsequent uncharged acts as circumstances of aggravation. I do not accept that submission either. In paragraph [23] of the sentencing remarks, the judge said:

"It goes without saying that an unlawful relationship of this nature is usually kept secret from family and friends. Thus again, the seriousness of this offence is compounded by you making [the victim] a party to, or complicit in the inevitable deceit accompanying such a relationship."

"The single count for which I am sentencing you is one which took place in the context of an inappropriate relationship initiated and encouraged by you. It was put on your behalf that [t]his offence fell below the level of seriousness of the offences that the Court of Appeal dealt with in Ellis. I accept that Ellis was concerned with more than one offence, a series of offences, some of which involved sexual penetration, occurring over a period of some months. However, your offence, seen in the context of the relationship, puts it outside the characterisation of a single foolish lapse that the Court of Appeal there referred to, in the context of the type of offending which could justify the grant or the imposition of a suspended sentence."

In my opinion, her Honour's observations in paragraphs [23] and [41] of her sentencing remarks do no more than emphasise the point which is made in paragraph [11] of her sentencing remarks, that she used the subsequent offences only for the purpose of placing the charged offence in context and thus to exclude the possibility that it was a one off, isolated incident immediately regretted and not repeated, but that she did not use it to load the sentence which was imposed.

18 In my view the judge was right to consider the charged offence in the context of the uncharged acts for the purpose of excluding the possibility that the charged offence was an isolated offence which, once committed, was regretted.[5] And if I may say so with respect, it would have been difficult for her Honour to make it plainer that she did not load penalty by reference to any of the uncharged acts.

19 In the course of her sentencing remarks, the judge observed that:

"Making a child a party to your criminal conduct is, I consider, an aggravating feature of your wrongdoing."

The substance of the appellant's second ground of appeal is that the judge thus treated the fact of the victim being under 16 years of age as an aggravating feature of the charged offence, and that the judge thereby erred by treating an element of the offence as an aggravating feature of the offence.

20 I consider that that contention should also be rejected. Her Honour's observation about making a child party to the appellant's criminal act must be read in context in which it was expressed, and, when so read, one sees, I think, that the judge was not treating the age of the victim as an aggravating feature but rather treating as an aggravating feature the fact that the appellant had encouraged a victim of that age to participate in illicit sexual intercourse, knowing it to be unlawful to do what was proposed. Thus, as her Honour put it:

"The act of intercourse was the culmination of weeks of courtship, and occurred at a planned assignation. You had plenty of time to reflect on the wrong[ful]ness of your conduct and withdraw. To say you just did not think about it, or that you went ahead without thought as to the consequences, does not and cannot diminish your moral culpability. At the very best your behaviour was selfish and irresponsible.

As I have pointed out, you both knew that it was unlawful for you to have sexual intercourse with her. It is important to make clear that whilst you were committing a criminal offence by engaging in sexual intercourse with [the victim], she was not. Your conduct, however, in encouraging her to engage in your unlawful act, made her complicit in your breach of the law. Making a child party to your criminal conduct is, I consider, an aggravating feature of your wrongdoing."[6]

As it appears to me, the last sentence of that section of her Honour's sentencing remarks should be read as meaning that "so making a child party to your criminal conduct constituted an aggravating feature of your wrongdoing". Indeed, if it were otherwise, the last sentence of the passage would bear no relationship at all to what precedes it.

21 In my view there is no question that the appellant's persistent encouragement of the complainant was likely to have caused the complainant to become complicit in the appellant's criminality. In those circumstances I consider that it was open to the judge to treat the courting and encouragement of the complainant as an aggravating feature of the charged offence.

22 The maximum penalty for the offence of sexual penetration of a child under 16 years is ten years' imprisonment. For the reasons which the judge stated in her sentencing remarks, this was a case which her Honour considered fell within the mid-range of seriousness.

23 I agree. Among other factors which combined to make it so were the large age disparity between the appellant and the victim - it will be remembered that at the time of the offence he was 26 years of age and she was only 14 years of age; he was employed as a teacher's aide at the school attended by the victim and was thus in a special role in relation to the victim (even though he did not have care and control of her); he was a talented footballer and consequently something of a local hero young girls of the town were likely to admire and he took advantage of the victim's infatuation with him; he seduced the victim in the fashion which has already been mentioned; he knew her age and knew that it was illegal to have sexual intercourse with her; the sexual intercourse in which he engaged with her was unprotected and it resulted in pregnancy; there was a lack of complete contrition and remorse and a failure fully to acknowledge the moral and legal wrongfulness of his conduct; the appellant had prior convictions for aggravated burglary and intentionally causing serious injury which, although not of a sexual nature, meant that he could not be sentenced as a first offender; and the appellant committed the offence while subject to a community-based order of which it was a condition that he would refrain from further offending.

24 The appellant submits that the sentence imposed was nevertheless manifestly excessive having regard to the appellant's full admissions, plea of guilty and positive prospects of rehabilitation, together also with the fact, it was submitted, that he should be seen as a relatively naïve, unsophisticated sort of person who had come from Darwin to work in the home town of the victim, rather than a smooth and sophisticated predator.

25 I do not agree that the sentence was manifestly excessive or that the judge failed to pay proper regard to the considerations to which reference was made. It is apparent from her Honour's sentencing remarks that her Honour considered each of those matters and gave to each of them the weight which seemed appropriate to her. I am unable to see anything in her Honour's analysis which is indicative of error. Although the sentence which her Honour imposed may be seen as stern, I do not accept that a sentence of three years' imprisonment with a non-parole period of 21 months, for this offence in these circumstances, is beyond the range of a sound sentencing discretion.

26 In my judgment the appeal should be dismissed.

29 The order of the Court is that the appeal is dismissed.

[1] [1981] HCA 31; (1981) 147 C.L.R. 383.

[2] [1981] HCA 31; (1981) 147 C.L.R. 383 at 389.

[3] [1991] 1 V.R. 706.

[4] [1998] VSCA 144; [1999] 1 V.R. 706 at 726[70], my emphasis.

[5] See and compare R. v. Kesic [2001] VSCA 171 at [37], per Vincent, J.A.; R. v. Feretzanis [2003] VSCA 8 at [18], per Ormiston, J.A.; DPP v. Heblos [2000] VSCA 229; (2000) 117 A.Crim.R. 49 at 55[33], per Eames, A.J.A.

[6] My emphasis.