R v PBW [2003] VSCA 144

9. I turn first to the circumstances of the offending. The offending occurred during the period July 1997 and June 2000, when the appellant was living in Shepparton with his de facto wife and her two children and at a time when he was mostly unemployed and when the mother of the two children worked in an "escort agency" where the appellant also worked as a casual driver. The offences were perpetrated against the two children, `T' and her brother, `M'.

12. The subject of the first count was an act of oral penetration that took place between 1 July 1997 and 30 June 1998. The appellant forced his penis into the mouth of T, in the presence of M, while their mother was having a shower. T was then approximately six to seven years of age and M was two years older.

15. Count 2 alleged an act of vaginal penetration during the same period. While driving T and M to school, the appellant momentarily diverted to a secluded location

and sought to engage in sexual activity with T but she refused to co-operate. He told her that if she did not comply with his demands he would remove her from the car and force her to run alongside it which, ultimately, he did. After a short while he allowed T to return to the car and, with the aid of a lubricant, put his penis into her vagina. In the course of this offending, he slapped T for her initial refusal to accede to his demands and as punishment for moving her legs around, crying and yelling, presumably while being penetrated. The appellant then warned T not to tell her mother and threatened to punch her in the mouth if she did. While this offending was taking place M was made to stand outside of the car.

19. The events the subject of counts 3 and 4 occurred between July 1998 and June 1999 when T was approximately eight years old. Count 3 involved an act of vaginal penetration which occurred when T did not attend school due to illness. The appellant told T that he was taking her to a motorcycle shop, but instead took her to a secluded bush location. He placed lubricant in her vagina, inserted his penis and threatened to punch her on the nose or mouth if she informed her mother. Count 4 involved an act of oral penetration as the appellant was driving the children to school. As was the case in count 1, the appellant veered off to a secluded location, and there inserted his penis into T's mouth while they were both in the car and M stood outside.

22. Counts 5, 6 and 7 occurred in the period between 1 July 1999 to 30 June 2000 when T was between the ages of eight and nine and M was aged between ten and eleven. Counts 5 and 7 involved the appellant instructing both children to go underneath the table at which he was sitting and for each of them, sequentially, to take his penis into their respective mouths. Count 6, which charged an act of vaginal penetration, occurred when the appellant, who was seated, asked T to straddle him, which she did. The offending occurred while M was in the room and their mother was at work.

25. The appellant had only limited schooling, having left school after completing year 9 in order to work in a factory. From the evidence given by his father and other material placed before the sentencing judge, it seems that the appellant had a stable home life and a good upbringing and that his offending conduct was out of character. The sentencing judge noted that the appellant had intermittent jobs over the years, either as a labourer or unskilled worker, and that he has lived in the Shepparton district since the mid-1980s. Notably, his relationship of significance has been with the mother of the complainants, and together they had a daughter who was nine years old at the time of sentencing. She was sent away by the appellant to live with his parents because, he said, T and M touched each other from time to time, sometimes in the presence of his daughter, in a way that he considered to be inappropriate. The evidence showed that the relationship between the appellant and his de facto wife has been somewhat turbulent, marked by a number of periods of separation, and that the two children in question had come to the attention of the Department of Human Services well before the commission of these offences for what was described in their records as environmental and medical neglect.

28. The judge received into evidence, and took into account for sentencing purposes, the psychiatric report of Dr Katz dated 7 August 2002 and the pre-sentence report of 16 August 2002 prepared by Ms Caruso of the Office of Community Corrections. The reports detail the appellant's personal background and work history. His relationship with the mother of the children was, as I have said, marked by turbulence which was heightened when she commenced working at the local escort agency. The evidence suggests that the appellant became resentful about the nature of his partner's employment and said that he felt lonely, isolated and abandoned by her in the evenings. It seems that the offending occurred in the context of his alcohol and cannabis use at the time, and general boredom. Her Honour also received in evidence victim impact statements made by each of the children, the grandfather of M and the natural father of T. Not surprisingly these reports make it apparent that the children had suffered from the appellant's conduct towards them and are likely to be affected by it into the future.

31. The appellant reported to Ms Caruso that he considered that he must have been sexually attracted to the children and that he had not given thought as to how they were affected by his sexual abuse other than to note that T became withdrawn during and after such episodes. In his discussions with Dr Katz, the appellant attributed his offending to his association with the children's mother, saying that "all this happened because I got involved with a bad woman. Had she been more supportive this wouldn't have happened".

34. Her Honour considered that while the appellant's pleas of guilty were an indication that he had acknowledged his guilt, there was also evidence to suggest that he had not fully accepted responsibility for the offences, laying the blame instead on his de facto wife. Dr Katz was of the opinion that the appellant committed the crimes in an effort to re-assert control of a dysfunctional relationship and the pursuit of sexual gratification and that the offending was perpetrated in the context of significant rage and resentment against the children's mother. Dr Katz diagnosed the appellant as having a narcissistic personality disorder and as having a significant problem with anger management and rage. The Community Corrections Report assessed the appellant as being at a high risk of re-offending. Both reports, her Honour noted, commented on the appellant's lack of real victim empathy and a lack of general remorse on his part. Her Honour considered that this suggested that the maturation process which his counsel submitted had begun with his pleas of guilty had "a very long way to go" and quite possibly would not be achieved without professional intervention.

37. The learned sentencing judge also considered that the offences were serious as was the offending conduct and that the principles of denunciation, just punishment and special and general deterrence were of importance to the sentencing disposition. Since sentences of imprisonment were to be imposed on counts 1 and 2, said her Honour, the appellant would be sentenced as a serious sexual offender in relation to counts 3 to 7 and, in the circumstances, the protection of the community was to be the principal purpose of those sentences. Nevertheless, her Honour said, she did not propose, in order to achieve that purpose, to impose a sentence longer than that which was proportionate to the gravity of the offences considered in light of the objective circumstances. In that context, her Honour imposed the following head sentences:

Count 2 - vaginal penetration - 4 years' imprisonment

Count 3 - vaginal penetration - 4 years' imprisonment

Count 6 - vaginal penetration - 4 years' imprisonment

Count 7 - oral penetration - 3 years' imprisonment.

Her Honour then said that, in order to address the principles of totality and proportionality, and so as not to impose a sentence which would otherwise be crushing in its effect, she proposed, pursuant to s.6E of the Sentencing Act 1991, to direct "otherwise", more specifically that the sentences be served in the following manner:

- 18 months of the sentence imposed on count 2 be served "cumulatively with the sentence imposed on count 1".

- 18 months of the sentence imposed on count 3 be served "cumulatively with the sentence imposed on count 1".

- 18 months of the sentence imposed on count 6 be served "cumulatively with the sentences imposed on counts 1, 2 and 3".

- 12 months of the sentence imposed on count 4 be served "cumulatively with the sentence imposed on counts 1, 2, 3 and 6".

- 2 years of the sentence imposed on count 7 be served concurrently with the sentence imposed on count 5.

- 2 years of the sentence imposed on counts 5 and 7 be served "cumulatively with the sentences imposed on counts 1, 2, 3, 4 and 6".

Thereby, her Honour imposed a total effective sentence of 11½ years' imprisonment. In order to allow for his rehabilitation in the community, including participation in an appropriate sexual offenders program upon release, the learned sentencing judge ordered that the appellant serve a non-parole period of eight years before being eligible for release.

55. Those being the relevant background circumstances, I turn to consider the submissions made on the appellant's behalf in support of the grounds of appeal.

Ground 2 - error in maximum penalty on counts 1 and 2

59. I turn first to ground 2, under cover of which it was claimed that the sentencing discretion in respect of counts 1 and 2 was vitiated because the judge sentenced the appellant on those counts on the erroneous basis that the applicable maximum penalty was 25 years' imprisonment when in fact it was 20 years. Counsel pointed out that in the period covered by those counts, namely 1 July 1997 to 1 September 1997, the maximum penalty for incest was 20 years' imprisonment and that the increase in the maximum penalty took effect on the latter date.[1] Counsel said that the possibility that the offending conduct took place before 1 September 1997 could not be excluded. In the circumstances, it was submitted, it should be assumed that the period of 20 years' imprisonment was the applicable maximum penalty in respect of counts 1 and 2. So much may be accepted and the Crown did not seek to argue to the contrary.

62. It was then submitted for the appellant that it was reasonable to assume that the judge may have imposed lesser sentences on counts 1 and 2 had she been aware of the lesser maximum penalty, having regard to the following:

(a) The sentence on count 1 was higher than the sentences imposed in respect of the other oral penetration counts.

(b) The judge considered that the period of the maximum penalty was a significant factor in determining the two sentences, as was evident, so it was said, from her Honour's reference in her sentencing remarks to the maximum sentence as indicating the seriousness of incest generally, and given the judge's observation that the offences here were "of a high order [of seriousness], as indeed is your culpability".

(c) The appellant was not sentenced as a serious sexual offender in relation to the two counts in question and thus, unlike the situation in respect of counts 3 to 7, her Honour was not required to pass sentence on those counts on the basis that the protection of the community was the principal purpose of the sentences.

It was argued that, even if the circumstances of the count 1 offending were more serious than those applicable to the other oral penetration counts, had the judge known of the true position as to the maximum penalty, she may have regarded that as effectively offsetting the more serious aspects of that offending and imposed a sentence in respect of count 1 which was similar to that imposed in respect of the other oral penetration counts. Alternatively, it was said, her Honour may have given more weight to the inapplicability to counts 1 and 2 of the serious offender provisions.

68. Counsel then pointed out that this Court has held on a number of occasions that error by the sentencing judge as to the applicable maximum penalty re-opens the sentencing discretion. It was submitted that her Honour, having been misled, erred in respect of a material aspect of the sentencing disposition with the consequence that the sentencing discretion was vitiated.

71. As I have said, it is common ground that at all relevant times the maximum penalty of imprisonment for the offences relating to counts 1 and 2 was 20 years' imprisonment and not, as her Honour was told, 25 years' imprisonment. It does not follow, however, that, merely because the sentencing judge misapprehends the applicable maximum penalty for the offence in respect of which the accused is sentenced, the sentencing discretion is vitiated. Such error may have that consequence where the difference between the applicable maximum penalty and that assumed by the judge is material and the sentence was relevantly governed, or dependent upon, or "steered by", the specific period of the maximum penalty assumed by the judge to be applicable. See, for example, R. v. Huong Quoc Chau[2], R. v. Ma[3], R. v. Maher[4] and R. v. RJE[5].

74. In my view the error in this case can be properly characterised as immaterial, as was effectively done in Chau where the sentencing judge passed a sentence of four years' imprisonment for aggravated burglary in the mistaken belief that the maximum penalty was 25 years when in fact it was 20 years. See also RJE at [12] per Brooking, J.A. This is not a case like Ma where the sentencing judge was told that the maximum penalty was 12½ years' imprisonment whereas the applicable penalty was 7½ years and where the impugned sentence was 3 years' imprisonment.

77. Further, it seems plain enough from her Honour's sentencing remarks that, unlike the situation in Ma, in imposing the sentences in question, she was not "steered" by the erroneous view as to the applicable maximum penalty. It is true that, understandably, the judge referred to the maximum penalty by way of recognition of the seriousness of the offence, but it is plain that her Honour did not intend there to be a relationship between the sentences in question and, specifically, the maximum of 25 years' imprisonment. A maximum penalty of 20 years' imprisonment demonstrates, just as much as a 25-year term of imprisonment, that Parliament considered the offence in question to be very serious. Moreover, that count 1 attracted a higher sentence than the other oral penetration counts is explicable by the more aggravating aspects of that first offence. It was the first violation against a girl who was only aged six to seven years. It occurred at her home while her mother was having a shower and was accompanied by some force. Moreover, as I have said, it was perpetrated while her brother was present. Her Honour plainly, and understandably, considered that, in relative terms, this offending was more serious than the other oral penetration offences. Furthermore, contrary to the suggestion of the appellant's counsel, the protection of the community was not a totally irrelevant sentencing consideration in relation to counts 1 and 2, notwithstanding that the appellant was not sentenced as a serious sexual offender in respect of those counts. That her Honour did not steer by the maximum was confirmed by her very helpful report to this Court.

80. As to count 2, it is also clear enough that her Honour considered that the appropriate sentence on that count was to be the same as that imposed in respect of the other vaginal penetration counts and, given the circumstances of each such offending, it cannot be said that her Honour erred in that respect.

83. In the circumstances, I consider that there is no merit in the appellant's claim that her Honour would or might have imposed lesser sentences on counts 1 and 2 had she been aware of the lesser maximum penalty. It is also apparent that I cannot accept the appellant's contention that her Honour's sentencing discretion has been vitiated by reason of the error as to the applicable maximum penalty.

86. I should say that, even if I considered that the mistake had or might have influenced the sentence actually passed, so that this Court were called upon to re-exercise the sentencing discretion, I would not be of the opinion that different sentences should be imposed.

89. Consequently, I think that ground 2 must fail.

Ground 3 - inconsistency between sentences on counts 1-2 and 3-7

93. I now turn to ground 3. Under cover of that ground it was argued that the sentences imposed on counts 1 and 2 were inconsistent with the sentences imposed on counts 3-7 in view of the fact that, in relation to counts 1 and 2:

(a) a lesser maximum penalty applied;

(b) the serious sexual offender provisions were inapplicable;

(c) they were the first in a series of offences during the period of offending.

99. Counsel further argued that the longer sentence on the first count and the relatively longer sentence on count 2 could not be explained by the fact that the complainants were then of younger age. It was said that, if that were the explanation, one would expect a sliding scale of sentences, beginning with the sentence on count 2, and decreasing progressively in respect of the other counts as the age of the victims increased over the period. Since this did not occur, it was said, the differences between the relevant groups of sentences remain unexplained. There were other arguments put forward by counsel in support of his claim of inconsistency, but they need not be considered in detail because the stated bases on which the claim proceeds are without merit. For reasons that I have given, that a lesser maximum penalty applied to counts 1 and 2 is immaterial for the purpose of comparing the sentences. Furthermore, as I have also pointed out, while the appellant was not sentenced on counts 1 and 2 on the basis of the serious sexual offender provisions, special and general deterrence and the protection of the community were nevertheless relevant sentencing considerations in relation to those counts. Moreover, there is nothing in her Honour's sentencing remarks that shows that the sentences were structured solely by reference to the increasing age of the victims during the period of offending, although their ages were plainly of relevance. It is plain that the judge carefully considered the circumstances of each offending and concluded that, other than in respect of count 1, like sentences were appropriate in respect of the comparable offences. And, as I have already mentioned, the count 1 offending was accompanied by aggravating circumstances which largely explain the relatively greater sentence imposed for that count. In the circumstances, therefore, there is no inconsistency between the sentences as the appellant contends and consequently I think that ground 3 has not been made out.

103. I now turn to grounds 1 and 4. Under cover of those grounds it was submitted that, whether or not the sentences on counts 1 and 2 are infected with error, the orders for cumulation and concurrency have resulted in a total effective sentence and a non-parole period so severe as to be outside the range of sentences that was open to the judge. It was also said that the principle of totality was offended. It was accepted by Mr Croucher for the appellant that the individual sentences were within range, but, it was said, the total effective sentence was plainly excessive, as was the non-parole period, given in particular the appellant's lack of relevant prior convictions, his plea of guilty, an absence of diagnosis of paedophilia and the presence of a supportive family. It was asserted that the total effective sentence is one that might be expected to follow a trial or a plea of guilty to numerous representative counts involving far more predatory or disturbing behaviour over a longer period, or perhaps accompanied by relevant prior convictions or a diagnosis of paedophilia. For the reasons that I will give shortly, I cannot agree with that submission. In the context of this case, it was also said that the total effective sentence is disproportionate to the gravity of the total offending conduct.

106. Counsel claimed that the seven discrete counts represented a substantially lower degree of criminality than that which had been alleged by the complainants in their VATE tapes (and in part mentioned in the victim impact statement of M) and which was to be alleged at trial, and that this gives rise to the following three considerations.

109. First, it was said, the plea of guilty, although coming late in the proceedings, should have been regarded as a mitigating factor of very substantial weight because, apart from its utilitarian value, it was a plea in respect of allegations that were more limited in compass than those that the appellant had previously faced.

112. Secondly, counsel claimed, the victim impact statement of M contained inadmissible material being allegations that did not form the basis of the discrete counts to which the appellant pleaded guilty.

115. Thirdly, it was contended that there is at least a risk that the sentencing judge was influenced unconsciously by the uncharged acts alleged in the material before her.

118. Counsel also referred the Court to sentences that were imposed in a number of other cases which, he said, illustrated that the total effective sentence here is manifestly excessive.

121. Before dealing with the issue of totality and the claim that the total effective sentence and the non-parole period are plainly wrong, it is appropriate to dispose of a number of discrete arguments put for the appellant in support of the basic attack on the length of the sentence. First, even if one assumed that the victim impact statement contained inadmissible material, those parts of it to which her Honour had regard, as is apparent from her sentencing remarks, were not inadmissible and were relevant. Thus, for example, her Honour noted that the victim impact statement referred to the separation of the two children as a result of the disclosure of the offences and to the effect of the offending on them and, as the judge put it, "the blight on their childhood memories". In my view, it was not inappropriate for her Honour to take those matters into account, particularly when the appellant's counsel properly conceded during the hearing of the plea in mitigation the detrimental effect of the offending on the complainants. There is nothing in her Honour's sentencing remarks that shows that any inadmissible material that might have been present in the victim impact statement of M affected the sentence that she imposed.

124. Next, it is plain that the appellant's plea of guilty was taken into consideration by the judge as a mitigating factor and there is nothing in her Honour's sentencing remarks which suggests that this matter was not given sufficient weight. I make the same observation in relation to the claim about the appellant's lack of prior convictions. Furthermore, notwithstanding that courts strive to achieve consistency in sentencing, the cases to which counsel referred for the purpose of demonstrating that the sentence here is plainly excessive are of little utility given their differing and distinguishing features. It also seems plain to me that the individual sentences, as Mr Croucher conceded, were well within the range that was open to her Honour, and thus the real question is whether the orders for cumulation have offended the relevant sentencing principles.

127. In that context, it is necessary to look at the criminality of the whole of the offending conduct in order to determine if it can be properly said that the sentence is other than "just and appropriate", and in that context I refer to Mill v. R.[6] I have already mentioned that the offence is a very serious one. The circumstances of the offending conduct were also grave. The children were very young. T in particular was aged six to nine years during the relevant period. In relation to the offending against her, the judge found that it was accompanied variously by threats of violence, actual violence and humiliation, and that on a number of occasions it was committed in the presence of her brother, M.

130. I agree with Ms Pullen for the Crown that, given the gravity, if not depravity, of the appellant's conduct, the offending was at the high end of the scale of offences of incest. Aggravating features of the offending, in addition to those already mentioned, included the significant period over which they occurred, the clear breach of trust that was reposed in the appellant in respect of the children, offending against T in the presence of her brother and the apparent planning by the appellant in relation to some of the offences, as, for example, having at hand a lubricant to use in relation to the penetration of T. Her Honour, an experienced judge, said in her report to this Court that the offences here were the worst offences of this kind that had come before her. The offending also involved a degree of sexual gratification on the appellant's part in the context of his anger and resentment towards the children's mother.

133. Further, there was little, if any, genuine remorse by the appellant for his criminal conduct. As her Honour noted, he essentially laid the blame for it on the children's mother. The Community Corrections Officer assessed the appellant as a high risk offender, considering that there was a high risk of his re-offending. Moreover, as I have noted, the appellant came to be sentenced as a serious sexual offender in relation to counts 3 to 7.

136. I have already mentioned that her Honour had present to her mind, when

sentencing the appellant, the relevant sentencing principles including that of totality and the need not to impose a crushing sentence. It should also be said that all the mitigating circumstances, so ably emphasised by Mr Croucher for the appellant, were put to her Honour during the plea in mitigation and were obviously taken into account by her in the sentencing disposition, including his plea of guilty and his strong family support.

140. In the circumstances, I consider that the overall criminality of the appellant's conduct was such that the total effective sentence could not be said not to be just and appropriate (or that it is manifestly excessive). Similarly, I consider that, given the lack of evidence of the appellant's prospects of early rehabilitation, the non-parole period is not manifestly excessive.

155. The formal order of the Court is that the appeal is dismissed.

[1] See s.114(1) of the Sentencing Act 1991.

[2] Unreported, 31 July 1991, Court of Criminal Appeal, Crockett, McGarvie and Phillips, JJ.

[3] Unreported, 18 March 1998, Court of Appeal, Winneke, P, Tadgell and Callaway, JJ.A.

[4] Unreported, 21 May 1998, Court of Appeal, Callaway, Buchanan and Kenny, JJ.A.

[5] [1999] VSCA 79.

[6] (1988) 166 C.L.R. 59 at 762-63 per Wilson, Deane, Dawson, Toohey and Gaudron, JJ.