R v R N T [2009] VSCA 137

1 This proceeding began as a sentence appeal but, as explained below, the Crown conceded that the conviction on one count could not stand. As a result, the appellant ('RNT') falls to be resentenced on the remaining counts, and it is unnecessary to consider his grounds of appeal against sentence.

2 RNT pleaded guilty in the County Court at Geelong to 12 counts of sexual offending. The victim of the offence the subject of count 1 was his stepdaughter (A). The victim of all the other offences was his stepson (J). RNT was sentenced as follows:

Maintaining a sexual relationship with a child under the age of 16

Total effective sentence: 9 years 9 months' imprisonment

3 It is necessary first to recount the facts constituting each count. To that end, an edited version of the Crown summary presented at the plea hearing appears as Appendix 1 to these reasons. As conventionally occurs, the Crown summary provided the factual foundation for the sentencing in the Court below.

Crown concession - the form of the presentment

4 RNT was granted leave to appeal by a single judge of this Court. On the hearing of the application for leave to appeal against sentence, the Crown drew two matters to the attention of the judge, as follows.

5 First, the Crown drew attention to count 12 on the presentment. That was a general count of maintaining a sexual relationship with a child under 16, the victim being RNT's stepson, J. Counts 2 to 11 were specific counts of sexual offending against J. The period of the relationship alleged in count 12 was 19 July 2002 - 31 December 2005. All of the offending the subject of counts 2 to 11 fell within the same period. Counsel for the Director advised that offending of this kind

is no longer particularised in this manner - one count of maintaining a sexual relationship with a child under 16 would now suffice to capture the totality of the offending conduct in question. The presentment would now be drafted within the Sexual Offences Directorate within the Crown - this Directorate endeavours to adopt a uniform approach to the drafting of presentments for all sexual offences.

6 Secondly, counsel for the Director drew attention to errors in the drafting of count 12:

Put bluntly, the [Crown] concedes that the count is badly drafted. It is plain that the count intended to represent all instances of sexual offending occurring between [RNT] and [J], save and except that conduct which was captured by specific counts ...

One example of the poor drafting of count 12 was its reference to RNT having maintained a sexual relationship with J 'on occasions other than those referred to in Counts 1 to 11'. Count 1 did not relate to J at all.

7 Further, the particulars of count 12 referred to only one type of sexual abuse. The presentment alleged that RNT had maintained a sexual relationship with J in that he 'took part in an act of sexual penetration with [J] a person whom he knew to be his stepchild in that he introduced his penis into the mouth of [J] ...'. As appears from Appendix 1, however, the Crown summary in respect of count 12 particularised five separate types of sexual abuse against J. According to the Crown's submission:

Count 12 was designated by the sentencing judge as the base count for sentencing - it plainly represented the most serious instance of the offending in question. The error ... is a material one. The sentencing judge has sentenced [RNT] in respect of [count] 12 on the basis of all the offending as outlined in the [Crown opening] - however, the count was peculiarly limited to a discrete type of sexual offending.

If this concession is acceptable to the Court, the sentencing discretion is vitiated and [RNT] should fall to be resentenced according to law.

8 There was an even more fundamental error than was here recognised. This Court held in The Queen v GJB[1] that, where the offence charged was maintaining a sexual relationship with a child under 16, it was not permissible to particularise only some of the sexual acts which took place during the relationship and to allege the remainder as separate, substantive offences. Winneke P said:

[O]nce it is understood that the essence of the offence of 'maintaining a sexual relationship' is constituted by a series of criminal acts, being three or more, of a particular kind committed by the accused within a stipulated period upon the same [victim], it can be seen that there is no justification in law or in fairness for confining the offence to a part of the series, and charging the rest as substantive offences punishable independently from the offence of maintaining the sexual relationship.[2]

In that case, the convictions on all counts - other than the sexual relationship count - were quashed. The conviction and sentence on the sexual relationship count remained.

9 In the present case, by contrast, senior counsel for the Director conceded on the hearing of the appeal that the conviction - and hence sentence - on the sexual relationship count could not stand. We will, accordingly, treat the appellant as having made an oral application for leave to appeal against conviction. We will grant that application, treat the appeal as having been instituted and heard instanter and allowed, and quash the conviction on count 12.

10 Because the sentence imposed on count 12 was the base sentence, and all other sentences (with the exception of that imposed on count 1) were to be served concurrently with it, it follows that the sentencing discretion is reopened and RNT falls to be resentenced by this Court. The submission for the Crown was that, notwithstanding the quashing of the conviction on count 12, this Court in resentencing should view as appropriate the total effective sentence imposed below and the non-parole period fixed. For reasons which follow, we would uphold that submission.

11 Although the conviction on count 12 no longer stands, the sentence of nine years which the judge imposed on that count reflected his Honour's view of the seriousness of the whole course of offending against J. His Honour said that no cumulation would be ordered between the sentences imposed in respect of counts 2 to 11 and the sentence imposed on count 12. The basis of this decision was that 'the offending, the subject of count 12 has, in large measure, consumed the offences the subject of counts 2 to 11'.[3]

12 The judge described RNT's conduct as 'vile, aberrant behaviour ... in gross breach of trust that you owed [your stepchildren] as their stepfather.'[4] His Honour referred to the victim impact statement made by C, the mother of the victims, and said:

It made for particularly sad reading. It was written by a clearly intelligent mother of two abused children. A mother who has great insight into this personal tragedy. She described you as being a skilled predator, very aware of your actions. She wrote as to your exercise of caution so as not to be discovered in your activities with your stepchildren.[5]

The judge set out the following extract from the mother's statement:

He preyed on us carefully and sneakily portraying himself as a loving family man when, in essence, he was a perverted sexual predator that had already set his sights on sexual satisfaction with my children then commenced a sexual tirade of carefully orchestrated and planned incidents of sexual perversion, persuasion and indecent assault that he had no right to do.[6]

Offences such as these are often very difficult to detect, particularly where the offender instructs his young victims to keep the activities a secret, such as you did in this present case. Every case ... of child sexual abuse is of considerable concern to our community. The nature of your offending, most particularly towards your stepson, is amongst the worst this Court has had to consider.

Notwithstanding your pleas of guilty, your offending is deserving of stern punishment and denunciation in the strongest possible terms. Clearly, the aspects of deterrence, both specific and general, must be an important sentencing consideration for this Court. Offences of this nature appear to be disturbingly prevalent in the community. Balanced against these factors must be your prospects for rehabilitation. The issue of public protection is a further important sentencing consideration for this Court. Without treatment, this Court is well satisfied that you pose a continuing risk to children in our community.[7]

14 We respectfully agree with everything his Honour said.

15 Upon being sentenced to terms of imprisonment on count 1 (relating to A) and count 2 (the first of the 11 counts relating to J), RNT fell to be sentenced as a serious sexual offender in respect of all remaining counts. The same applies on resentencing in this Court, given the view we take of the appropriate sentence for count 1.[8]

16 By reasons of s 6D(a) of the Sentencing Act 1991 (Vic), the sentencing judge was required - as is this Court on resentencing - to regard the protection of the community from RNT as the principal purpose for which sentence is imposed on those subsequent counts. As the Court said recently in DPP v DDJ ('DDJ'),[9] what sentence will be required in order to protect the community against a serious sexual offender must necessarily depend upon the court's assessment of the risk which the offender presents.

17 In the present case, the judge called for a pre-sentence psychiatric assessment and report. He did so '[w]ith the issues of [RNT's] prospects for rehabilitation and public protection very much in mind'.[10] A report was subsequently received from Dr Caroline Breadon of Forensicare, whose clinical judgment was that NJR's 'risk of future offending is moderate, rather than low.' One of the risk factors was the

[p]resence of multiple cognitive distortions such as the enduring belief that the sexual relationship with his step-son was consensual ... Additionally, [RNT] did not understand that the child did not have the capacity to give valid consent in any circumstances ...

18 Addressing RNT at the time of sentence, his Honour said:

Let me tell you ... that no blame whatsoever can be attached to your stepson. All blame rests with you and no one else. You were the stepfather. You were in a position of trust. You were a man of mature years. Your principal victim was your stepson who, at the time of your offending, was a young lad in the age group of 11 to 14. You most deviously manipulated and conditioned your young victim to be acceptive (sic) of your most aberrant behaviour under the threat of it being a secret between you both.

The Court notes Dr Breadon's opinion that you fulfil the criteria of the diagnosis of paedophilia and further, that you do not meet the criteria for any other psychiatric diagnosis.

The Court also notes Dr Breadon's opinion that your risk of re-offending is moderate. The Court accepts Dr Breadon's opinion and you will be sentenced on the basis of you being a paedophile with a moderate risk of re-offending. Clearly, the need for public protection is a most important sentencing consideration.

On the issue of rehabilitation, Dr Breadon has noted that whilst you have been able to engaged with a therapist in the past, your cognitive distortions have proved so far refractory to therapy. Dr Breardon opined that you require treatment from a sex offenders program during your period of imprisonment, and that you may also benefit from referral to a sex offenders outpatient treatment program after you complete your sentence.[11]

19 As the Court said recently in DPP v CPD,[12] paedophilia is a diagnostic label 'which by itself provides little or no assistance to a court'.[13] As in relation to other mental disorders, what the court requires in order to make the risk assessment required for the purposes of s 6D(a) is expert evidence which assesses, so far as it is possible to do, the actual risk of re-offending which the offender presents.

20 In the present case, the course which his Honour adopted was exemplary. The independent Forensicare report provided a detailed and cogent risk assessment. That RNT was assessed as a moderate risk of reoffending justified his Honour's finding that, without treatment, RNT posed a continuing risk to children. Moreover, the finding was directly relevant to the judge's task of ensuring that the sentence was adequate to protect the community against him.

21 The sentencing judge had before him letters from RNT's sister, who is his only sibling, and from his father. The judge said:

Both letters refer to your shame and your remorse. The Court accepts that you are, indeed, shamed by your behaviour and that you are remorseful for that behaviour.[14]

22 The submission for RNT contended that, although he had no prior history of mental illness and no prior convictions, he was predisposed to inflicting this type of sexual abuse because of his own childhood experience. RNT had three sessions with a consulting psychologist in order that a report could be prepared for the sentencing judge. It was not until the last of these sessions that RNT made mention of his own sexual abuse. He gave a handwritten note to the psychologist, who appended it to his report. The note stated:

I have never told anyone about this in my life ... because I don't want this to go back to the family. I was the same age as [J] when the same thing as we did happened to me.

This went on for 12 to 18 months, by family member. We masturbated one another on a weekly basis over this time. We had oral once at his home and after that it all stopped.

On the plea, defence counsel echoed what RNT had told the psychologist: 'He cannot explain how he allowed himself to become an abuser in like manner'.

23 The appeal submission for RNT cited the following passage from the judgment of the NSW Court of Criminal Appeal in R v Reid:[15]

In my opinion, if it is established that a child sexual assault offender was himself sexually abused as a child and that history of sexual abuse has contributed to the offender's own criminality, that is a matter which can be taken into account by the sentencing judge as a factor in mitigation of penalty as reducing the offender's moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge.

It would seem that age 12 to 14 you yourself were the victim of sexual abuse by your uncle. Whilst that factor might well explain your troubled mind, it serves little by way of mitigation.[16]

In our view, this conclusion was entirely correct in the circumstances.

25 Although we are now dealing with individual counts of sexual abuse, what the Court said in DDJ regarding the offence of maintaining a sexual relationship has application to the present case:

The repetition of the sexual abuse is likely to heighten the victim's fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened. On the other hand, it would be quite wrong to conclude that the offender's culpability varies in direct proportion to the length of the relationship. Other factors may be of greater significance, such as the nature of the pre-existing relationship between offender and victim, and the nature and intensity of the sexual abuse which takes place.[17]

26 In this case, RNT's culpability was high because of the length of the time during which the abuse continued, the degree of repetition, and RNT's pre-existing relationship with his stepson. As the Court said in DDJ, the persistent sexual abuse of a child by his stepfather is 'reprehensible in the extreme'.[18] The submission for the Crown rightly emphasised the importance of denunciation as a sentencing consideration for offences of this kind.

27 RNT was entitled to a significant discount for his pleas of guilty, which protected his victims against having to re-live the horror of the sexual abuse and avoided the cost of a trial. But, in view of the aggravating circumstances of the offending and the issue of community protection (to which we are bound to have regard), we would uphold the Crown's submission that the effect of the sentences we impose should be no different from that which the judge imposed.

28 Accordingly, RNT will be resentenced on those counts as set out in Table B below. We point out that, in accordance with s 6E of the Sentencing Act 1991 (Vic), the sentences imposed on counts 3 to 11 must be served cumulatively unless otherwise directed. We will direct that there be only partial cumulation, as set out in the table.

Resentencing on count 1 - the single offence against A

29 The circumstances of the offending against J's sister, A, are set out in Appendix 1. A was 11 or 12 when this sexual assault occurred.

30 The submission for RNT on the appeal was that this offence 'would not have attracted a jail sentence on its own'. In the circumstances, it was contended, whatever sentence was imposed by this Court on count 1 should be fully concurrent with the sentences imposed on the other counts.

31 We disagree. First, the maximum penalty of 10 years for this offence shows that any sexual assault on a child under 16 is to be viewed seriously. Importantly, the sentence of 18 months was entirely consistent with current sentencing practice. According to the Sentencing Advisory Council's Sentencing Snapshot No 24,[19] the average length of imprisonment imposed for this offence in the five years from 2001-02 to 2005-06 ranged from 18 months in 2003-04 to 23 months in 2004-05. The proportion of those sentenced who received a custodial term varied from 69 per cent in 2002-03 to 31 per cent in 2004-05.

32 Secondly, the offence is much more serious when committed by a parent on a child. This must be so, because the young child is almost entirely dependent on the parent and places complete and unquestioning trust in the parent. When this offence was committed, A was sitting on her stepfather's knee. She was entitled to feel safe and secure. Instead, she was sexually assaulted. Worse still, she was told that she had to keep it a secret.

33 The submission for RNT was that this offence was 'comparatively less serious' than those committed in relation to J. Leaving aside the sexual penetration offences, which carry a higher maximum, we do not accept that this is so. To suggest that there are gradations of seriousness according to how and where the victim's body is touched is, in our view, to overlook the fact that any unwanted touching is an act of sexual violence.

34 When the perpetrator is a parent, it is a profoundly shocking breach of trust. The emotional impact on the child is enormous. Like her mother, A prepared a victim impact statement. As the judge said, it makes for 'very sad reading'.[20] She said:

What [RNT] did to me ... no one will ever be able to even understand. They can only try. [He] has impacted my life, with such effect that it has not only been sexually, but emotionally, mentally and physically. Each and everyday I have to live my life remembering what he did, because there is nothing anyone can do or say that will change the past.

...

As I was going through high school I struggled a lot with boys and relationships because there was the thought that what he did to me they would too. I have tried three times now to complete year 11, but the thought that he will find where I'm living and harm me again will always be there.

...

I hope that in some point of my life I will be able to put it to the back of my mind and move on, but that won't be until he's out of my life, my family's life and out of this world. It will be in my mind forever and locking him up is only the beginning for me because he still gets to live knowing he got away with affecting mine [sic] and my family's life.

35 As in relation to the offences against J, we agree with the Crown submission that the same sentence should be imposed on the offence against A as was imposed below, and that there should be the same order for cumulation. It is entirely appropriate that the sexual abuse of a different victim should be separately reflected in the total effective sentence.

36 As set out in Table A above, the total effective sentence was nine years and nine months' imprisonment. The non-parole period was eight years, which represented 82 per cent of the head sentence. It was a ground of the sentence appeal that the non-parole period was too long

having regard to [RNT's] prospects for rehabilitation and the need of the community for there to be a parole period of significant length to enable [him] to rehabilitate.

37 We do not agree. As noted earlier,[21] the Forensicare report recommended that RNT receive treatment from a sex offender program while in custody, and that this continue on an outpatient basis after his release. A 21-month period of parole is adequate for this purpose. We see no reason to fix a longer period of eligibility for parole. As we have said, this was very serious offending over a long period. We regard eight years as the minimum term of imprisonment which justice requires be served.[22]

38 In the result, the total effective sentence and the non-parole period will be the same as those imposed below. This accords with the sentencing judge's view that the criminality for which he imposed sentence on count 12 was in substance equivalent to that constituted by the individual counts of sexual abuse of J, being counts 2 to 11. Put another way, the erroneous inclusion of count 12 in the presentment was productive of a formal sentencing error, but there was no error of substance.

Total effective sentence: 9 years 9 months' imprisonment

1. RNT commenced a relationship with the victims' mother ('C') in July 1999. In approximately October 1999, he began living with C and her children. The female victim ('A') was then nine years old. The male victim ('J') was then eight years old. There was one other sibling. RNT and C married in March 2003. They separated in November 2005. After they separated, RNT still had some involvement with the children and the family, until the offences were disclosed to C in late December 2005.
2. The offences took place over a four and a half year period, between 1 March 2001 and 31 December 2005. They took place in the family home, when the victims were alone with RNT.
3. In March 2001, the family moved to a new house. Each child had a separate bedroom. RNT and C were both employed whilst living at this house. RNT shared the parenting duties with C and was actively involved with the children.

4 RNT massaged the bare breasts of his step-daughter, A, whilst they were in the kitchen area. A was aged between 11 and 12 at the time. When the incident occurred, A was sitting on RNT's knee. The other members of her family were at home but not in the vicinity. RNT rubbed A's back underneath her clothing and then moved his hands to her chest and rubbed her breasts. RNT told A it was their secret and that she was not to tell anyone.

5 RNT entered J's bedroom at night. He was in bed and the lights were switched off. RNT removed the bed covers, pulled J's pyjama pants down and masturbated his penis until he ejaculated. RNT pulled up J's pyjama pants and told him not to tell anyone as it was their secret.

6 J was taken to RNT's bedroom. RNT removed J's clothing, sat him on the bed and pushed his shoulders down so that he was lying on the bed. RNT climbed on top of J and rubbed his naked body on J's naked body by moving up and down. RNT then rolled onto his back and made J lie on top of him and rub his body against him. This continued until RNT and J both ejaculated.

7 J was in RNT's bedroom. RNT hugged J and removed his clothing. He then removed his own clothing and then placed J's penis into his mouth. RNT removed J's penis from his mouth once he had ejaculated.

8 After the incident referred to in count 4, RNT pushed J's shoulders down forcing J onto his knees. RNT placed his penis inside J's mouth and used his hands to push J's head backwards and forwards on his penis. After some time RNT removed his penis and ejaculated.

9 In April 2004 the family moved to a different house. There J shared a bedroom with his brother. A had her own room.

10 RNT entered J's bedroom at night. He removed the bed covers, pulled J's boxer shorts down and masturbated J's penis.

11 The family moved a third time. J shared a bedroom with his brother, and A had her own bedroom.

12 J was sitting in the lounge room. The other family members were not home. RNT entered the lounge room, pulled J's pants down and masturbated J's penis until he ejaculated.

13 J was sitting in the lounge room. RNT entered the lounge room, pulled J's pants down, knelt in front of him and placed J's penis into his mouth. RNT removed J's penis from his mouth once he had ejaculated.

14 After the incident referred to in count 8, RNT placed his own penis into J's mouth until he ejaculated. (It was not asserted by the Crown that RNT ejaculated into J's mouth.)

15 J was at home. No-one else was at home apart from RNT. RNT entered J's bedroom and asked him to move over so that RNT could get into his bed. When J refused, RNT took J to his own room. RNT removed J's clothing. RNT was already naked. He lay on the bed, placing J on top of him. RNT moved J up and down along his body before sending him back to his own room. This happened 'a fair few times'.

16 While J was watching a video in the lounge room, RNT entered and replaced the video with an adult movie. RNT told J to remove his pants. He did so and RNT placed J's hand on his penis. J masturbated RNT's penis until he ejaculated. This would also occur after acts of sexual penetration.

17 Between 19 July 2001 and 31 December 2005, RNT maintained a sexual relationship with J. Whilst living at the first house, between 19 July 2002 and 30 April 2004, J was home from school. RNT grabbed his hand and led him to RNT's bedroom. RNT pulled J's pants down, sat him on the bed and masturbated him until he ejaculated. This occurred on 15 occasions whilst living at the first house and many times in J's bedroom at the first and second houses.

18 Further, between 19 July 2002 and 31 December 2005, RNT would remove J's clothing and lie on top of J and rub his naked body against J's naked body. This occurred in RNT's bedroom in the first house on more than one occasion, twice in the lounge room at the first house and a few times in the third house.

19 Also between 19 July 2002 and 31 December 2005, RNT placed J's penis into his mouth. This occurred on at least two occasions in J's bedroom and also on at least two occasions in RNT's room in the first house. Whilst living at the third house, this occurred a few times, the last time being shortly before an interstate trip in December 2005.

20 Also between 19 July 2002 and 31 December 2005, RNT placed his penis into J's mouth. This occurred twice at the first house and a few times at the third house.

21 Also between 19 July 2002 and 31 December 2005, RNT placed J's hand on his own penis. J masturbated RNT until he ejaculated. This occurred after acts of sexual penetration as described in counts 4, 5, 8 and 9.

22 RNT frequently told J not to tell anyone about what they were doing as it was their secret.

23 In December 2005, J disclosed the offences to a family friend. In late December 2005, whilst on a family holiday, J disclosed the offences to his mother.

[1] [2002] VSCA 54; (2002) 4 VR 355.

[2] Ibid [15] (Batt JA and O'Bryan AJA agreed).

[3] R v RNT (Unreported, County Court of Victoria, Judge Robertson, 7 June 2007) ('Reasons'), [38].

[9] [2009] VSCA 115, [29].

[12] [2009] VSCA 114.

[15] (Unreported, Supreme Court of New South Wales Criminal Appeal, Mason P, Grove and James JJ, 24 July 1998), 13. See, generally, R v LFJ [2009] VSCA 134, [22]-[28].

[17] [2009] VSCA 115, [32].

[19] Sentencing trends for indecent act with a child aged under 16 in the higher courts of Victoria, 2001-02 to 2005-06 (June 2007).

[22] Cf The Queen v Franklin [2008] VSCA 249, [47] (Kellam JA).