R v R L P [2009] VSCA 271

1 The appellant, RLP, was presented on 30 counts of sexual offences against eight victims which occurred over a 37 year period. Initially, RLP pleaded guilty to all 30 counts, but during the course of the plea hearings counsel for the Director announced that no admissible evidence was available to support count 25, and so an acquittal was entered on that count. The appellant therefore fell to be sentenced on the remaining 29 counts.

2 The detail of each count is set out in the appendix to these reasons. On 30 September 2008 he was sentenced as follows.

1. On each of the six counts of incest - counts 7, 8, 19, 20, 26 and 30 - to 10 years' imprisonment, the sentences on counts 8, 19, 20, 26 and 30 to be served concurrently with the sentence imposed upon count 7, except that one year of each of the sentences on counts 19, 26 and 30 be served cumulatively upon the sentence imposed upon count 7 and upon all the other sentences imposed;
2. On each of the two counts of carnal knowledge of a girl under the age of 10 years - counts 5 and 12 - to 10 years' imprisonment, the sentences to be served concurrently with each other and with all the other sentences imposed except for one year on count 12 which is to be served cumulatively upon all the other sentences imposed;
3. On each of the four counts of indecent acts with a child under 16 years - counts 24, 27, 28 and 29 - to 5 years' imprisonment, the sentences to be served concurrently with the other sentences imposed, except for six months of the sentence on each of counts 24, 27, 28 and 29 which are to be served cumulatively upon each other and upon all the other sentences imposed;
4. On each of the eleven counts of indecent assault on a girl - counts 1 to 4, 6, 9 to 11, 14, 15 and 17 - to 2½ years' imprisonment, the sentences be served concurrently with each other and with all the other sentences imposed, except for one year of the sentence on count 1, which is to be served cumulatively upon all the other sentences imposed;
5. On each of the five counts of indecent assault - counts 16, 18, 21, 22 and 23 - to 2½ years' imprisonment, the sentences be served concurrently with each other and with all the other sentences imposed, except for six months of the sentence on count 16, which is to be served cumulatively upon all the other sentences imposed; and
6. On the count of common assault - count 13 - to 2 years' imprisonment, eighteen months of that sentence be served concurrently with the other sentences imposed and six months is to be served cumulatively upon all the other sentences imposed.

The total effective sentence was 18 years.

It was ordered that the appellant serve a minimum of 12 years before becoming eligible for parole.

3 On counts 3 to 30, the provisions of Part 2A of the Sentencing Act 1991, which deals with serious offenders, applied. Section 6E provides that, unless otherwise directed by the Court, each sentence imposed upon a serious offender is to be served cumulatively. Because of the large number of criminal offences the appellant had committed and because of his age his Honour considered it necessary to otherwise direct.

4 His Honour ordered concurrency of sentences in relation to individual victims, save for an order for cumulation of part of one sentence in relation to each victim. The sentencing judge explained his approach in these terms:

The direction that sentences be served concurrently or partly concurrently does not involve a finding that individual offences do not matter or that victims do not matter. On the contrary, every offence matters, and every victim matters. An order for concurrent or partly concurrent sentences simply acknowledges the factual reality that one person will serve the sentences imposed. In your case it also acknowledges that you are 76 years of age.

The orders hereunder for cumulation and concurrency necessarily bear an artificial air. That is because the vast number of criminal offences you committed over many years do not translate proportionally into one sentence. The guiding principle here of formulation of cumulation and concurrency is that each discrete sentence is appropriate and the totality befits one person to serve the sentences.[1]

5 Many of the offences for which the appellant was sentenced were crimes which attracted a lower maximum penalty than that fixed under the present legislation. The schedule of offences in the appendix sets out the maximum sentence which applied at the time of each offence. It was implicit in both parties' submissions that the appropriateness of individual sentences was to be assessed by reference to the fact that at the time many of the offences were committed, the maximum penalties were lower and the range of sentences for those offences were generally lower than the present range of sentences for the same offences. We have assessed the adequacy of the individual sentences in that way.

6 Leave having been granted pursuant to s 582 of the Crimes Act 1958 (Vic), the appellant now appeals against each of the sentences imposed on the following grounds:

Ground 1 The learned Sentencing Judge erred in finding that the principles set out in R v Verdins had no application in sentencing the Appellant.

Ground 2 The learned Sentencing Judge erred in failing to give any or sufficient weight to the Appellant's pleas of guilty.

Ground 3 The learned Sentencing Judge erred in failing to give any or sufficient weight to the Appellant's ill health and life expectancy.

Ground 4 The sentences imposed on each count, and the total effective sentence, are manifestly excessive.

7 By his outline of submissions, supplemented by oral submissions, counsel for the Director conceded that the sentencing judge had made a number of errors. First, it was conceded that ground 1 was made out, as the sentencing judge had incorrectly stated in his sentencing remarks that the principles in R v Verdins[2] were not applicable. That concession was made because at the time of sentence, it was not in issue that the appellant was suffering from a depressive illness and a conversion disorder.

8 Secondly, it was conceded that ground 4 was made out as the sentences imposed on a number of counts failed to adequately reflect the differences between those counts. Counsel for the Director drew attention to counts 1, 30 and part of count 29, as offences which would not have been discovered in the absence of admissions by the appellant. It was acknowledged that this consideration should have resulted in lower sentences on those counts.[3] Further, it was acknowledged that the same sentences should not have been imposed for all of the offences of the one type. It was conceded that such an approach failed to give recognition to the fact that the objective gravity of the offences varied between victims, and that some of the counts were representative counts covering repetitious conduct over a protracted period.

9 Significantly, counsel for the Director also conceded that most of the individual sentences imposed in respect of non-representative counts were substantially above the range that was open and did not accord with past or present sentencing practice.[4]

10 At the outset of the appeal, counsel for the Director conceded that the errors identified under grounds 1 and 4 required the sentencing discretion to be re-opened. He submitted that it was necessary for the Court to impose lower individual sentences in respect of all counts other than the count of common assault. Despite these and other errors identified during the course of oral argument, counsel for the Director invited the court to re-sentence the appellant to the same total effective sentence and non-parole period by imposing more moderate individual sentences and a greater degree of cumulation between counts.

11 He emphasised the obligation to have regard to s 6E of the Sentencing Act 1991, which calls for cumulation of sentences imposed on serious offenders, and submitted that the Court should not allow the principle of totality to undermine the policy of the Act. He relied on McHugh, Gummow and Hayne JJ's statement in their joint reasons in RHMcL v R that:[5]

The need for judges not to compress sentences is especially important when the accused person is a 'serious sexual offender': within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 15(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentence as if that section (or s 6E which replaced it) was not on the statute book.

12 The circumstances of the offending are not disputed on this appeal. They are set out in the reasons of the learned sentencing judge as follows:

[8] You were married to your first wife in 1954 and separated in 1974. There were two male children and then four female children of the marriage. Against the first female child, D, born in 1959, you committed indecent assault between 1970 and 1973 (count 1). Against the second, J, born in 1964, you committed indecent assault in 1970 (count 2) and 1972-1974 (counts 3 and 4); carnal knowledge in 1972-1974 when she was under 10 years of age (count 5); indecent assault in 1975-1976 (count 6); carnal knowledge in 1976-1977 when she was over 10 years of age (counts 7 and 8); and indecent assault in 1978-1979 (count 9). Against the third of your daughters, W, born in 1968, you committed indecent assault in 1974-1975 (counts 10 and 11) and carnal knowledge in 1974-1975 when she was under 10 years of age (count 12). In 1976 you assaulted the children's mother to ensure your offences were not reported (count 13). Then in 1979-1981 you indecently assaulted the youngest of your four daughters, L (count 14), born in 1970.

[9] You then committed a series of offences against the daughter, LJ, of your brother. She was born in 1969. In 1979-1981 you indecently assaulted her (count 15); in 1979-1985 you further indecently assaulted her (counts 16-18); and in 1979-1981 you committed incest upon her, she being under 10 years of age (counts 19 and 20).

[10] You married the wife of that brother. By that marriage you had two children. One of them was a girl, E, who was born in 1978.

[11] Against that girl you committed five offences: in 1983-1984, indecent assault (count 21); in 1988-1990, indecent assault (count 22); in 1991, indecent assault (count 23); in 1991-1993, indecent act (count 24); and in 1991-1993, incest (count 26).

[12] You then proceeded to prey upon the next generation of your own victims. One of your victims, your daughter L, herself had a daughter, A, in 1989. Against A in 1995-1996 you committed indecent acts (counts 27-28). Another of your victims, your daughter E, had a daughter, C, in 2002. Against C in 2007 you committed an indecent act (count 29) and in 2007 you committed incest (count 30).

[14] It is not of utility to state the vast detail of your offences. I shall mark as Ex 'B' the prosecution revised summary of facts, which was agreed to by the defence, and place it on the Court file. It is of twenty-four pages.

[15] In order for an understanding of the nature and extent of your offences to be gained, I state the following:

a) Victim D, your daughter: Count 1: when she was 11 years of age you digitally touched her vagina. Count 1 is also representative of the many other occasions when you did this to her over a period of five years from the age of eight.

b) Victim J, your daughter: Count 2: you inserted your fingers into her vagina. Count 2 is also representative of many other occasions when you did this. Count 3: you inserted your fingers in her vagina. Count 3 is also representative of the other occasions when you did this. Count 4: you rubbed your penis on the outside of her vagina. Count 4 is also representative of the many other occasions when you did this. Count 5: you inserted your penis into her vagina. She called on you to stop (on the earlier counts having unsuccessfully said 'don't' to you). In an egregiously manipulative statement, you told her that she could not tell her mother and that if she did, she and her mother would get into trouble. Count 6: you inserted your fingers in her vagina. Count 6 is also representative of the many other occasions when you did this. Count 7: you inserted your penis into her vagina and then masturbated to ejaculation in her presence. Count 8: you inserted your penis into her vagina and ejaculated inside her. Count 9: you touched the outside of her vagina. She was between the ages of 7 to 14 years when you committed these offences upon her.

c) Victim W, your daughter: Count 10: you touched her vagina. Count 11: you rubbed your erect penis against her vagina. Count 12: you inserted your penis in her vagina. Counts 11 and 12 are representative counts of the many times you did that to her. She was between the ages of five to seven years when you committed these offences upon her.

d) Victim S: the mother of Victim J: Count 13: on one occasion J threatened to tell everyone what you had been doing to her. You threatened to strike J with your work boot. The mother intervened. You pushed the mother away so severely that she lost consciousness. This was criminal enforcement.

e) Victim L, your daughter: Count 14: she woke up one night and found you were in her bedroom and had inserted your fingers into her vagina. She was nine years of age at the time.

f) Victim LJ, your stepdaughter: Count 15: you inserted your fingers into her vagina. This count is also representative of the many other occasions you did this. Count 16 (after the commencement of the Crimes (Sexual Offences) Act 1980): you inserted your fingers into her vagina. This count is also representative of the many other occasions you did this. Count 17: you penetrated her vagina with your tongue. Count 18: you did so again. Count 19: you inserted your penis into her vagina. Count 20: you did so again. She was between the ages of 11 to 15 years when you committed these offences upon her.

g) Victim E, your daughter: Count 21: you digitally touched her vagina. Count 21 is also representative of many other occasions when you did this. Count 22: you rubbed your erect penis on her vagina. Count 22 is also representative of the many other occasions you did this. Count 23: you licked her vagina and rubbed your erect penis on her vagina. Count 23 is also representative of the many other occasions you did this. Count 24 (after the commencement of the Crimes (Sexual Offences) Act 1990): you licked E's vagina. Count 24 is also representative of the many other occasions you did this. Count 26: you inserted your penis into her vagina. Count 26 is also representative of the many other occasions you did this. She was between the ages of 5 and 15 years when you committed these offences upon her.

h) Victim A, your granddaughter: Count 27: you digitally touched her vagina. Count 27 is also representative of another occasion when you did this. Count 28: you licked her vagina. She was between the ages of six to seven years when you committed these offences upon her.

i) Victim C, your granddaughter: Count 29: you licked her vagina. Count 29 is also representative of four of five other occasions you did this. Count 30: you penetrated her vagina with your tongue. Count 30 is also representative of another occasion you did this. She was between the ages of four to five years when you committed these offences upon her.

13 The appellant had also engaged in a variety of conduct with his victims that was calculated to discourage them from revealing his offences. It included admonishing his young victims not 'to tell anyone' or giving them gifts or money. The assault on his wife was described without demur on the appeal as an 'act of enforcement' to ensure the concealment of his conduct.

The competing views as to the adequacy of the sentences

14 It was not in issue that the sustained and egregious nature of the appellant's offending placed this case in the worst category for this type of criminal conduct. The Director contended that if the total effective sentence or non-parole period were reduced, the sentences would not reflect the total criminality of the appellant's conduct. No lesser sentence, it was said, would be sufficient to encompass criminality spanning a period of 37 years and victims from three generations of his family.

15 Both parties in oral submissions referred to the 'powerful constellation of mitigating factors' that should be taken into account. Principally, these were the appellant's advanced age, his recognised depressive illness and conversion disorder, his guilty plea and his admission of otherwise unknown offences. The appeal focussed upon the weight to be given to these factors. The appellant contended that these matters militated in favour of a reduction in both the total effective sentence and non-parole period.

16 The appellant is 77 years of age. As was identified on the plea, the physical health of the appellant is poor and reflects his advanced age. It was accepted by the learned sentencing judge that he suffers from Meniere's disease (diagnosed in 1995), ulcers (diagnosed 1998), infra renal aortic aneurysm (diagnosed 2003) and a lacuna stroke (diagnosed 2007). It also appears that the appellant suffers from ongoing issues with his hearing and eyesight. The combination of these physical ailments, it was submitted, are such as to make prison more difficult than it would be for a prisoner in a healthy condition.

17 The appellant's mental condition was the subject of some attention on the plea and the appeal. Following the discovery of these offences and before sentence, the appellant had been admitted to the Sunshine Aged Persons Mental Health Unit in 2007 suffering from severe depression. The learned sentencing judge received two reports, dated 17 June 2008 and 1 August 2008, from Mr Jeffrey Cummins, a psychologist. Given the concession by the Director that ground 1 is made out, the content of the reports of Mr Cummins assume particular importance. Those reports indicate that the appellant suffers from a major depressive illness in conjunction with a 'conversion disorder'. Mr Cummins first saw the appellant following police interviews and prior to sentencing. He reported that the appellant claimed he could not remember being charged or making admissions. The appellant presented as depressed and reported a history of blackouts and colour blindness. Mr Cummins concluded that the appellant's apparent, retrograde amnesias, could be consistent with either a diagnosis of a conversion disorder or malingering. A conversion disorder was explained by Mr Cummins in the following terms:

Essentially, a Conversion Disorder is a psychiatric/psychological disorder whereby the level of stress/anxiety has become so great for the patient that the anxiety is unconsciously converted into other symptoms - which could be deficits affecting voluntary motor or sensory function which suggest a neurological or other general medical condition. In this instance he reports the retrograde memory loss and the colour blindness and blackouts.

18 He advised that further testing might establish whether the appellant was attempting to feign his symptoms. Following the results of the test of 'Memory Malingering' Mr Cummins, in a further report, opined that it was improbable that the appellant was feigning symptoms and that 'more weight should be placed upon the diagnosis of a Conversion Disorder'. He reported that the appellant presented as 'severely depressed' and was receiving visits from the CAT team on a weekly basis. Accordingly it was agreed by the parties on appeal that the appellant should have been sentenced as a person afflicted by a conversion disorder and severe depression and was to be so viewed for the purpose of re-sentencing.

19 It was not in issue that this depressive illness and conversion disorder engaged the principles in R v Verdins.[6] Propositions 3, 4 and 5 from Verdins were relevant:

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.[7]

20 We are not here concerned with a mental condition which contributed to the commission of the offences. The appellant's mental illness and disorder only arose after the period of his offending. It was the discovery of his crimes and the prospect that he was likely to spend most, if not all, of the rest of his life in imprisonment, that precipitated his severe depression and conversion disorder. There was therefore some controversy on the appeal as to the weight that should be afforded the appellant's mental condition.

21 A variety of submissions were made by both counsel as to the extent to which the appellant's mental condition, resulting from his offending, might be taken into account, as the sentence will weigh more heavily on him because of his mental condition. It was contended by the appellant that the mental illness should be considered analogous to other cases where an injury is sustained in the course of the offending and is recognised as some punishment already suffered. It was assumed by both parties, correctly we think, that nothing turns on the distinction between mental illness or physical injury. Cases involving injuries sustained as a consequence of culpable driving[8] or an armed robbery[9] have recognised that the sentence might be reduced because of the fact that the injuries already constitute a form of punishment for the offending. For example, in Barci v R,[10] this Court recognised that it was a mitigating consideration that the offender, an armed robber, was seriously injured in the commission of the offence. The Court said:

It is, we think, and as the Crown concedes, not a complete answer to say that Barci brought his injuries upon himself. The fact is that these very serious injuries directly resulted from the commission of the crime itself. For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality.[11]

22 But that view has not always prevailed. Sometimes an injury suffered has been given no weight. In R v Taylor,[12] Gowans J delivering the judgment of the Court rejected the submission that a person convicted of rape might receive some mitigation of sentence as a consequence of his claim to have received a venereal disease from the victim. His Honour said:

The court is not disposed to accept the unilateral statement of the accused in this respect, but in any case it is not a ground for reducing the sentence. It would be an odd circumstance if men who were convicted after pleading guilty to the crime of rape were entitled to have a lenient sentence imposed upon them because of the consequences which they brought upon themselves by such conduct.[13]

23 We do not regard the appellant's circumstances as analogous to those of an offender who is to be viewed as having already suffered some punishment because they were injured during the course of committing a crime. The appellant's mental condition, arising from the disclosure of his crimes and his prospects of a long custodial sentence, is not to be treated as a form of punishment that entitles him to some reduction in the sentence he would otherwise receive. That does not prevent a supervening condition from being taken into account for other purposes.

24 Counsel for the appellant, in the alternative, submitted that the mental illness should be taken into account as it will make his sentence more burdensome. He submitted that the fact that the condition was a consequence of his crimes was irrelevant and that the condition should be weighed in the instinctive synthesis in the same way as any other feature personal to an offender. On this view, the mental illness, regardless of its cause, must be given some weight, consistent with long standing sentencing principle that all factors personal to an accused ought be considered.

25 Counsel for the Director invited the Court to take the view that as the condition was a consequence of the offending conduct, it should be given reduced weight as a mitigating circumstance. It was submitted that the mental illness could be taken into account as a feature personal to the accused, but that the weight which it could be given ought to be reduced in recognition of the fact that the offender, in effect, only had himself to blame. In support of this approach he referred the Court to the decision in R v Yalim.[14] There evidence showed that an appellant, convicted of culpable driving, had suffered severe and continuing psychological consequences as a result of guilt flowing from his offending. Considering the weight to be given to those circumstances, Hedigan AJA said:

There is no reason to suppose his Honour did not take into account the personal circumstances of the applicant and the devastating effect of his conduct and his guilty on him. In human terms, these consequences attract compassion for the continuing grief and guilt, but they cannot play a significant or major role in the sentencing process, having regard to the circumstances of this case.[15]

26 The principles stated in R v Tsiaris[16] as re-formulated in Verdins are clear. As the offender was not suffering any recognised mental illness or disorder at the time of the offending which contributed to the commission of his crimes, his moral culpability for that offending cannot be reduced. But moderation of general deterrence and specific deterrence may be required where the mental condition has supervened since the offending conduct.[17] Where the offender suffers from a mental illness or disorder at the date of sentence the sentencing court may have to make an allowance in the sentence, if it is determined that by virtue of that illness or disorder the offender is not an appropriate vehicle for general deterrence. Specific deterrence may also have to be moderated. But a reduction may not be required where the supervening condition arises because of the discovery of the offender's crime and the offender's reaction to the prospect of a lengthy term of imprisonment.

27 The reason why general deterrence may be moderated in the case of an offender suffering from a supervening (post offence) mental impairment, is that such an offender should not be used as an example to others. In Verdins, the Court referred to R v Mooney[18] and R v Engert[19] where explanations were advanced why moderation of general deterrence might be desirable. In R v Mooney, Lush J said:

The concept of the deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Regard to this consideration must, I think, be relevant to the use of the law as an instrument of social administration. Its significance in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community. (Emphasis ours)[20]

28 In Engert, Allen J (with whom Sully J agreed) said:

General deterrence is simply the deterrence of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: 'Well, you would not expect him to get the same sentence as someone else'.[21]

29 Where, as here, the offending conduct is the cause of the mental condition, the considerations separately described by Lush J and Allen J do, to some extent, fall away. In the words of Allen J, human sympathy would not necessarily say 'well, you would not expect him to get the same sentence as someone else'. That is because the offender is the author of his own predicament and may be viewed as an appropriate medium for making an example to others. The community would not expect the offender to be treated more leniently because he has had an adverse reaction to the discovery of his crimes and his fear of imprisonment. In such cases, the circumstances of the offender may be seen as similar to an offender who suffers from a pathological gambling addiction, or an addiction to drugs or alcohol, and who in the eyes of the law has contributed to some extent to their condition, so that on that account deterrence should not be reduced.[22]

30 Propositions 3 and 4 in Verdins must therefore be understood as subject to further qualification. In addition to the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, the aetiology of the mental condition may also be relevant in determining whether deterrence should be moderated. Where the mental condition arises as a reaction to the discovery of the offender's crimes or to the prospect of incarceration, little or no moderation of general deterrence should be allowed in the instinctive synthesis. This is such a case. The age of the offender and the nature and severity of the mental condition will determine whether there should be any moderation in specific deterrence.

31 As to proposition 5, where it is concluded that the mental condition will make the serving of a term of imprisonment more onerous for that offender, it should generally receive its full measure as a mitigating factor in the instinctive synthesis, even though the condition arises as a consequence of the offending conduct. While each case is different, we do not consider that it will be appropriate in most cases to reduce the weight to be given to that mitigating circumstance because the appellant's offending conduct brought about his mental state.

32 The age and physical ill health of the offender are also relevant to general deterrence and may mitigate the sentence, as they may make custody more burdensome for the offender.

33 Counsel for the appellant submitted that these factors constituted significant mitigating considerations which would not be given sufficient weight were we to accede to the Director's submission and impose the same sentence. General deterrence might be moderated when sentencing an elderly person. In R v Saw[23] Redlich J said:

The significance of old age as a mitigating factor is that general deterrence may be required to surrender some ground to the need to exercise mercy, to take account of the possibility that the offender may not live to be released: Austin (1996) 87 A Crim R 570 (Malcolm J at 572).

34 General deterrence in the context of the sentencing of an elderly offender must be considered in light of the impact upon public perception of a gaol sentence upon a man as old as the appellant, upon whom the sentence will bear more heavily.[24]

35 Against this, counsel for the Director reminded the Court that considerations of general deterrence do not fall away when sentencing the elderly or infirm. Although age and ill health have some mitigatory force, he submitted that even allowing for them, the sentence must be just and within the range of offences which reflect the objective gravity of the offending.

36 This Court has considered the principles which apply to the sentencing of an elderly offender who suffers from health problems on a number of occasions. In R v Van Boxtel[25] Callaway JA referred to the observations of King CJ in R v Smith[26] where his Honour said:

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.[27]

37 In R v Bazley[28] the Court (constituted by Crockett, Hampel and Smith JJ) warned:

The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.[29]

38 The importance of just punishment, denunciation and general deterrence, continue to apply in the case of an elderly offender or one in ill health. As Chernov JA said in R v Cumberbatch[30] (in dealing with an appeal against a sentence imposed for murder):

It is also apparent, in my view, that the principles of just punishment and general deterrence are of considerable significance in the sentencing disposition in this case notwithstanding the age and health of the offender. In particular, I cannot accept that general deterrence can be materially moderated in a case such as this simply because the killer is aged 72 years and suffers from poor health.[31]

39 We approach the conjunction of the appellant's advanced years and ill health with these propositions in mind.

1. The age and health of an offender are relevant to the exercise of the sentencing discretion.[32]
2. Old age or ill health are not determinative of the quantum of sentence.
3. Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.[33]
4. It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.[34]
5. Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released[35] and that the offender's ill health will make his or her period of incarceration particularly onerous.
6. Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.[36]
7. Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[37]

40 Counsel for the appellant emphasised the significance of his guilty plea for its utilitarian benefit and because it signified his remorse. He submitted that the sentencing judge had unjustifiably reduced the discount that should have been allowed for the plea in fixing the individual sentences, the total effective sentence and the non-parole period.

41 In the sentencing remarks his Honour dealt with the appellant's guilty plea as follows:

Pleas of guilty properly are to be met with reduced sentences. The quantum of reduction varies according to relevant factors. A plea of guilty in the face of overwhelming evidence, as here, warrants a lesser reduction. A plea of guilty which bespeaks genuine remorse for the offending and for the pain inflicted upon the victim, warrants a reduction and can also sound into the factors of rehabilitation. I note your answer [recorded in transcript] wherein you stated 'I'm terribly sorry and I want them to forgive me one day if they will'. However, I consider you have but limited general remorse. Your remorse is principally for the position in which you now find yourself. You continued committing offences until after your conduct was revealed by others. However, I do take centrally into account that your preparedness to plead guilty from the outset has saved the victims from the trauma of court proceedings. It has not saved the victims the trauma of your criminal conduct; nor the trauma of police investigation; but it has saved them from the trauma of court proceedings, both in the Magistrates' Court at committal and in this court. Your pleas of guilty also have saved the expense and administration of eight separate trials.

42 It was submitted that the sentencing judge had erred by reducing the discount to be allowed for the guilty plea because of his perception of the strength of the Crown case. Two things may be said about that view. First, as counsel for the Director with his customary candour stated, the evidence available to the Crown was far from overwhelming. He acknowledged that it would have been very difficult to establish a substantial number of these offences. Secondly, even if the Crown case could have been viewed as a strong one, the discount for a plea of guilty was not for that reason to be reduced, unless it cast doubt on the level of remorse that would otherwise be inferred from the plea and surrounding circumstances. This issue was considered in R v Pajic[38] where Redlich JA (with whom Ashley JA agreed) said:

Section 5(2E) of the Sentencing Act 1991 requires the sentencing judge to have regard to the plea of guilty. One of the matters which may affect the appropriate discount to be allowed for a plea of guilty is the strength of the Crown case. Thus, a plea of guilty in the context of a weak Crown case will generally warrant an additional level of discount. It will be proper for a sentencing judge in some particular cases to find that the circumstance of a plea of guilty which might otherwise attract leniency is absent. Where the Crown case is a strong one, the conclusion may sometimes be justified that the plea has resulted from the recognition of the inevitable and so qualifies the extent of genuine contrition.

It must not be overlooked that whatever arguments there be about the degree of remorse shown by the plea, the strength of the Crown case will have no bearing upon that part of the discount which is to be allowed by virtue of utilitarian considerations. And a reduction in the discount because the strength of the Crown case shows that the plea reflects only limited remorse should only occur where conditions exist which justify such a conclusion. They are not to be found in the present case. The timing of the plea and the attitude of the appellant prior to his plea as to his offending conduct are two critical contextual factors. The plea here was neither a late one, nor did it follow a denial of guilt during the investigative stage. It could not be said that the plea was in response to a strong case, which therefore cast doubt on the level of his remorse or his acceptance of responsibility or his willingness to facilitate the course of justice. The discount for his plea of guilty was not to be reduced because of the strength of the Crown case. That is so because the utilitarian benefit of the plea could not be affected and, on the proper contextual analysis, neither could the level of contrition to be attributed to the appellant by virtue of the plea.[39]

43 Here the discount appears to have been reduced for two distinct reasons. One was the strength of the Crown case. Reducing the discount for that reason was an error.

44 A second discrete reason was his Honour's conclusion that the appellant had shown only 'limited genuine remorse'. Counsel for the appellant submitted that there was no basis for this finding. He referred to Mr Cummins' opinion, which was not contested on the plea or appeal, that the conversion disorder of the appellant affected his ability to recall and come to terms with his offending. It was said to have masked the appellant's level of remorse. There was some evidence of remorse prior to the mental condition taking effect. His plea had been offered at a very early stage of proceedings. Counsel pointed to the appellant's willingness to plead guilty to all counts, including numerous counts that would have been difficult to prove and to offences that would not have been discovered without his admissions. These matters, coupled with his regret expressed in a pretext conversation with one of his daughters, provided some evidence of remorse. Against that were the facts relied upon by the Director, which his Honour adverted to, that following the extensive police investigation the appellant was interviewed by police and was initially evasive. To the extent that he acknowledged offending conduct, he blamed the victims. It was only in a second interview that extensive admissions were made. We consider that the appellant was entitled to a some reduction in the sentences to be imposed as a consequence of his plea, both because of its utilitarian benefit and because it provided some indications of remorse.

45 Counsel for the appellant urged the Court to place additional weight on the guilty plea because this was a case of inter-familial sexual abuse over an extended period where a greater level of trauma would arise if the family members had been required to give evidence. It was said that pleas of guilty are less common in such circumstances, so that the appellant's guilty plea had a greater utilitarian value. We do not accept the submission that guilty pleas entered in incest cases should always be given greater weight. It has not been demonstrated that guilty pleas are less common in incest cases, than in other cases of sexual assault. While it may be more difficult for some victims of inter-familial sexual abuse to give evidence against a family member than for a person to testify against a stranger who has sexually assaulted them, the weight to be given to a plea of guilty for sexual offences, as with any other kind of offence, is in the discretion of the sentencing judge. Much will depend upon the circumstances of the particular case.[40]

Mechanistic approach to the individual sentences and cumulation

46 It was conceded by Counsel for the Crown that the sentence imposed on each of the counts of incest was too high. They were, we were informed, the highest ever recorded for incest in the State. We were referred to a number of cases involving counts of incest, decided in the period since 2006, which, it was submitted, established the current range for the offence[41] and showed that the sentences on individual counts of incest ranged between 3 years and 7 years. We also recognise that some of the counts of incest related to periods when lower sentences were imposed for such offences.

47 With only a few exceptions,[42] the learned sentencing judge also appears to have fixed the individual sentences, in a mechanistic manner, at one half of the statutory maximum in respect of the offence.

48 The fixing of extremely high uniform sentences for each type of offence in conjunction with only one order for cumulation for each complainant, rather than moderate sentences on the individual counts by reference to the circumstances of each offence with a greater number of orders for cumulation, constituted sentencing error.[43] The result was a set of sentences which, as recognised by the concessions by the Crown, were vulnerable to attack on appeal.

49 As was said by Callaway JA in R v Izzard:[44]

[22] In R v McCorriston, in a judgment in which Winneke P and Buchanan JA specifically agreed, I said:

Sentencing judges should be allowed great latitude in tailoring an appropriate total effective sentence, but there are two errors or dangers that it is easy to fall into. One is to fail to register the seriousness of one or more of the offences, as for example by imposing a series of very short sentences and directing that they all be served cumulatively. Another is to impose a particularly heavy sentence on one count and to allow the sentences imposed on all the others to be served concurrently despite the fact that some cumulation would be justified. Very often it is not, as s 16(1) of the Sentencing Act 1991 and common sense both recognise. But the combined effect of cases such as R v Newman and Turnbull and Pearce v R is that sentencing judges are sometimes well advised to moderate the sentences they impose on each count and to direct a measure of total, or more often partial, cumulation. That is especially so when offences are committed on separate occasions or against different victims, but those are not the only examples. Failure to moderate and cumulate in an appropriate case is apt to make a sentence unnecessarily (and unmeritoriously) vulnerable to appellate intervention.

A moderate sentence may, of course, be lengthy. Moderation takes its content from the circumstances and each individual sentence should still be appropriate for the relevant count.

There are at least three reasons why, within the limits of common sense, judges are well advised to moderate and cumulate in appropriate cases. First, moderation is a virtue in itself. Secondly, other victims are not left to feel that the offences committed against them are 'meaningless statistics'. Thirdly, a sentence structured that way is less vulnerable on appeal. Attention is focused on the merits and the discretion is not re-opened simply because the total effective sentence, imposed on one count, was manifestly excessive for the offence the subject of that count considered on its own.[45]

50 The Director's submission was that, despite the errors identified, a sentence of 18 years was appropriate for a case that was in the 'worst category'. Counsel for the appellant disputed that categorisation and emphasised the mitigating circumstances which he submitted militated against a sentence that was placed toward the very top of the range.

51 It is of little assistance to speak of a 'worst case'. That said, it was not in issue that this case involved such serious and sustained offending over such a protracted period as to warrant its placement in the range reserved for the worst category of this type of offence. The appellant over most of his life has breached the trust placed in him by generations of his family. The appellant's sustained and repetitious offending is an aggravating feature of the case. The repetition of the sexual abuse was likely to heighten each victim's fear that the abuse would occur again, and to increase the damage which she suffered.[46] Equally, the repetition was likely to make the appellant progressively more aware of the effect the abuse was having on the victims.[47] The victims were young and vulnerable. Often there was a degree of persuasion and in some instances coercion of the victims. They have suffered profound trauma with long term, if not permanent, harm. The continuity of the appellant's offending and the nature of his offences is objectively appalling and has brought untold misery to the entire family. Had the applicant not pleaded guilty, and allowing for the other mitigating circumstances we have mentioned, we declare, as required by s 6AAA that we would have sentenced the applicant to a total effective sentence of 18 years with a minimum of 12 years before he was eligible for parole.

52 The duty of the courts must be to emphasise to the community that such crimes will not be tolerated. As Winneke P stated in R v WEF:[48]

It must be understood by the community and, in particular, those who stand in a position of trust and responsibility towards young children that if they wish to enjoy the benefits which derive from a relationship with young children, they will pay a heavy price if they abuse such trust and responsibility by resorting to their own sexual gratification at the expense of those whom they have in their charge.[49]

53 We take into account the appellant's plea, his admission of some otherwise unknown offences, his depressive illness and conversion disorder and the fact that his sentence will plainly be more onerous for him because of his age and ill health. We recognise the very real prospect that the appellant will spend the remaining days of his life in custody. These factors all serve to reduce the sentence we would otherwise impose. But the objective gravity of his offending must be reflected in the sentences, if they are to satisfy the principles of general deterrence, proportionality and denunciation.

Count 1 - 2 years' imprisonment

Count 2 - 2 years' imprisonment

Count 3 - 2 years' imprisonment

Count 4 - 2 years' imprisonment

Count 5 - 6 years' imprisonment

Count 6 - 1 year and 6 months' imprisonment

Count 7 - 6 years' imprisonment

Count 8 - 6 years and 6 months' imprisonment

Count 9 - 1 year and 6 months' imprisonment

Count 10 - 1 year's imprisonment

Count 11 - 2 years' imprisonment

Count 12 - 6 years' imprisonment

Count 13 - 2 years' imprisonment

Count 14 - 1 year and 6 months' imprisonment

Count 15 - 2 years' imprisonment

Count 16 - 2 years' imprisonment

Count 17 - 1 year and 6 months' imprisonment

Count 18 - 1 year and 6 months' imprisonment

Count 19 - 6 years and 6 months' imprisonment

Count 20 - 7 years' imprisonment

Count 21 - 2 years' imprisonment

Count 22 - 2 years' imprisonment

Count 23 - 2 years' imprisonment

Count 24 - 2 years and 6 months' imprisonment

Count 26 - 7 years' imprisonment

Count 27 - 2 years and 6 months' imprisonment

Count 28 - 2 years' imprisonment

Count 29 - 3 years' imprisonment

Count 30 - 6 years' imprisonment

55 We would order that 9 months of Counts 5, 12, 19 and 30, 6 months of Counts 7, 8, 13 and 20, 3 months of Count 1, 11, 15, 16, 21, 22, 23, 24, 27 and 29, 2 months of Count 2, 3 and 4, and 1 month of counts 6, 9, 10, 14, 17, 18 and 28, be served cumulatively on each other and on the sentence imposed on Count 26, and that the sentences be otherwise served concurrently, making a total effective sentence of 15 years and 7 months' imprisonment. We would fix a minimum term of 10 years and 6 months before he is eligible for parole.

Touched vagina of daughter DAM several times between age of 8 and 13/14

Rubbed and digitally penetrated vagina of daughter JKS aged 8 - several times

Touched and placed fingers into vagina of JKS aged 8 - occurred once a or twice a fortnight

Rubbed penis on outside vagina of JKS aged 8 - occurred once or twice a fortnight

Rubbed and placed finger into vagina, then rubbed penis against and pushed penis into vagina of JKS aged 8

Rubbed and digitally penetrated vagina of JKS aged 11-12

Licked and pushed tongue into vagina of JKS, and pushed penis into vagina of JKS aged 12 - then masturbated in her presence

Placed fingers into vagina, rubbed penis against vagina, placed tongue into vagina, then placed penis and ejaculated into vagina of JKS aged 12-13

Pushed SJP (wife and mother of JKS) with such force as to lose consciousness

Rubbed and placed finger inside vagina of step-daughter LJP (aged 10) 1-2 times during period

Rubbed and placed finger inside vagina of LJP aged 11 on many occasions

Rubbed, licked and penetrated vagina with tongue of LJP aged 10

Licked and penetrated vagina with tongue of LJP aged 12

Rubbed and pushed penis (wearing condom) inside vagina of LJP aged 10, and ejaculated

Introduced penis into vagina of LJP aged 12, and ejaculated

Rubbed fingers over vagina of daughter EAP aged 5 - numerous occasions

Rubbed erect penis against vagina of EAP aged 10/11 - occurred frequently

Licked and rubbed penis against outside of vagina of EAP aged 11/12

Licked and rubbed penis against outside of vagina of EAP aged 13-14

Introduced penis into vagina of EAP aged 13 - occurred 1/2 times per week (often pay victim)

Pulled pants down and licked vagina of grand-daughter CJP aged 4 - occurred 4/5 times

Introduced tongue into vagina of CJP aged 4 - occurred 2 times

[1] DPP v RLP [2008] VSC 381, [42]-[43].

[2] [2007] VSCA 102; (2007) 16 VR 269.

[3] Ryan v R (2001) 206 CLR 267 at [95].

[4] Submissions by the Crown identified counts 5, 7, 8, 10, 14, 17, 18, 19, 20 and 28.

[5] [2000] HCA 46; (2000) 203 CLR 452, at 476-7 [76].

[6] [2007] VSCA 102; (2007) 16 VR 269.

[8] See DPP v King [2008] VSCA 151; (2008) 187 A Crim R 219.

[9] See also R v Foster [1994] Supreme Court of Victoria, Court of Criminal Appeal, (Unreported, Crockett, Southwell and McDonald JJ_,_ 15 December 1994).

[10] (1994) 76 A Crim R 103.

[11] See also R v Haddara (1997) 95 A Crim R 108 at 108-9; R v Teh [2003] VSCA 169; (2003) 40 MVR 195 and R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398.

[12] [1974] Supreme Court of Victoria, Court of Criminal Appeal, (Unreported, per Gowans J, 21 May 1974).

[14] [2000] VSCA 64; (2000) 31 MVR 377.

[16] [1996] VicRp 26; [1996] 1 VR 398.

[17] An intellectual disability is treated the same way.

[18] Unreported, Supreme Court of Victoria, CCA 21 June 1978 (Young CJ, Lush and Jenkinson JJ). See R v Anderson [1981] VicRp 17; [1981] VR 155.

[19] (1995) 84 A Crim R 67.

[20] See R v Anderson [1981] VicRp 17; (1981) VR 155, 160.

[21] (1995) 84 A Crim R 67, 72.

[22] R v Grossi [2008] VSCA 51.

[23] [2004] VSC 117.

[24] R v Holyoak (1995) 82 A Crim R 502 at 507.

[25] [2005] VSCA 175; (2005) 11 VR 258.

[26] (1987) 44 SASR 587.

[28] (1993) 65 A Crim R 154.

[30] [2004] VSCA 37; (2004) 8 VR 9.

[32] R v Bazley (1993) 65 A Crim R 154 at 158; R v Cumberbatch [2002] VSC 382; R v Smith (1987) 44 SASR 587.

[33] R v Saw [2004] VSC 117, [42]-[44]; R v Holyoak (1995) 82 A Crim R 502, 507.

[34] DPP v Kien (2000) VSC 376, [16]-[17] (Cummins J); Austin v R (1996) 87 A Crim R 570.

[35] R v Hunter (1984) 36 SASR 101; R v Yates [1985] VicRp 3; [1985] VR 41 and Crowley & Garner v R (1991) 55 A Crim R 201; R v Saw [2004] VSC 117.

[36] R v Cumberbatch [2002] VSC 382.

[37] R v Bazley (1993) 65 A Crim R 154, 158.

[38] [2009] VSCA 53.

[40] R v Malkoun (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Brooking and Marks JJ, 25 February 1991) 17-18.

[41] R v IAB [2009] VSCA 229; R v LFJ [2009] VSCA 134, R v Bellerby [2009] VSCA 59; DPP v Ral [2008] VSCA 140; DPP v EB [2008] VSCA 127; (2008) 186 A Crim R 314; R v CLP [2008] VSCA 113; R v GLH [2008] VSCA 88; R v DP [2007] VSCA 219; (2007) 176 A Crim R 382; R v DM [2007] VSCA 155; DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181; DPP v BGJ [2007] VSCA 64; (2007) 171 A Crim R 74; R v PFG [2006] VSCA 130; R v MKG [2006] VSCA 131; R v VN [2006] VSCA 111; (2006) 15 VR 113; R v IDK [2006] VSCA 22.

[43] The tariff at the time of the offence was also relevant.

[44] [2003] VSCA 152; (2003) 7 VR 480.

[45] Footnotes and citations omitted, emphasis added.

[46] DPP v DDJ [2009] VSCA 115.

[48] [1998] 2 VR 385.