R v Raimondi [1999] VSCA 101

Court of Appeal (Vic)|1999-06-23|Before: WINNEKE, P., TADGELL and CALLAWAY, JJ.A.

The applicant, Adam Raimondi, complains of a sentence imposed on him in the County Court on 3 December last. He pleaded guilty to three counts of committing an indecent act with a child under the age of 16, contrary to s.47 of the Crimes Act 1958. The victims were three very young boys, one in relation to each count. The offences were all perpetrated on Saturday 1 November 1997 when the applicant was aged 22 years. The victim of count 1 was at the time aged eight years and nine months, the victim of count 2 seven years and the victim of count 3 five years and eleven months.

The applicant lived with his parents and sister in a residential street in an outer north-western suburb. The victims of counts 1 and 3 lived with their families in houses on either side of the applicant's. The victim of count 2 lived in a street nearby.

On the day in question the applicant happened to meet the three boys in the street outside his house when he was with his dog. He invited them to join him in walking the dog and they accompanied him for a short way to the premises of a disused medical clinic. What then occurred was described by each of the children in the course of a videotaped interview. I need not descend to many particulars. The gist of their accounts was that the applicant pulled down his trousers, induced each of the boys to do likewise, and placed his penis in or against the anal region of each of them in turn, and, according to one of the boys, he did the same to everyone else and everyone else did it to him. One of the boys said that during the episode the applicant told them that he had "done it with his friends as well".

The 13-year-old sister of the youngest victim saw the applicant walk off with the boys from outside his house and later followed them to the medical clinic. There, peeping around a corner of the building, she saw the applicant with his pants down, holding up the victim of count 2 in front of him. The applicant's pants, according to the sister, were around his knees and he held the victim with the child's back to his body. She could not see her brother or the third boy and screamed out her brother's name. He came out and she took him home and reported to her mother what she had seen. After this, according to the eldest boy, he and his remaining friend went with the applicant to a nearby creek, as they thought, to walk the dog. When they arrived there the applicant "wanted to do it again", but the two ran away from him.

The accounts given by two at least of the boys rather suggested, if it did not describe, anal penetration by the applicant. There was medical examination of the boys which, in the case of one of them, tended to confirm that there had been penetration. In the event, however, the counts on the presentment to which the applicant pleaded guilty were the result of a negotiated plea. The matter was settled on the basis that the applicant's dealing with the boys had not amounted to anal penetration.

Within a short time of the commission of the offences the parents of the victims were informed of what had occurred and the applicant and his parents were confronted with it. The applicant was interviewed by police on 16 November 1997 when, on the advice of a solicitor, he answered "no comment", or something similar, to all questions put to him. He was arrested but was evidently released on bail after a few weeks. In the meantime, however, the applicant's mother, having been greatly disturbed by hearing of her son's behaviour, had arranged for him to receive psychiatric counselling. This he continued at approximately monthly intervals during the ensuing twelve months until his arraignment and plea in the County Court on 19 November last year.

No previous convictions were alleged against the applicant, and I should indicate that the maximum penalty for the offences in question is imprisonment for a term of 10 years.

Having heard a plea in mitigation on which the applicant himself gave evidence and called other witnesses, the judge passed sentence as follows. Upon count 1 the applicant was sentenced to be imprisoned for 18 months. On count 2 he was sentenced to be imprisoned for 18 months, six months of which the judge directed should be served cumulatively on the sentence on count 1. On count 3 the applicant was sentenced to two years' imprisonment as a serious offender in terms of Part 2A of the Sentencing Act 1991 and the judge directed that 15 months only of that sentence be served concurrently with the sentence on count 1. That meant that in effect nine months of the sentence on count 3 should be served cumulatively upon the sentences on the other two counts. There was, therefore, a total effective sentence of two years and nine months. His Honour fixed a non-parole period of one year and nine months, and there was a declaration of pre-sentence detention.

The applicant's notice of application for leave to appeal specified eight grounds, one of which (ground 2) was not pursued as such, namely, that the judge erred in treating the applicant as a serious offender in respect of count 3. Of the other grounds, the fifth was argued first and separately, namely, that the judge erred in placing too much weight on a perception of lack of remorse by the applicant.

At the outset, I should note that, strictly speaking, a lack of remorse, or a perceived lack of remorse, is not something to be held against a person who is undergoing sentence. Rather, of course, a lack of remorse should mean no more than that he does not receive the benefit to which prima facie a remorseful attitude should entitle him. In any event, however, I do not understand the learned sentencing judge here to have sentenced on the basis that the applicant lacked or was perceived to lack remorse. There was, as I understand the evidence which was placed before the judge, some indication of remorse on the applicant's part. This came, plainly enough, from Dr Kirkman, the psychiatrist to whom the applicant had been referred for treatment. He said, in chief, that the applicant "felt quite remorseful and deeply ashamed". At another stage of his evidence-in-chief he said to the judge, "He [the applicant] certainly expressed remorse for hurting the children." The applicant himself, who was called after the judge indicated to his counsel that he would draw certain inferences about remorse or a lack of it if the applicant were not called, said, "I feel that it has hurt the boys and their family and I feel deep sympathy for the family and their boys." In addition to what the applicant said orally in evidence, there was, of course, his plea of guilty to the offences to be taken into consideration.

The judge was no doubt entitled to give the evidence which he heard about remorse as much or as little weight on that question as he thought appropriate having regard to his assessment of its nature and quality. His Honour indicated that he derived not much evidence of remorse from the plea of guilty and he expressed himself to be satisfied that there was a high degree of self-pity on the part of the applicant as opposed to genuine regret that he had committed the offences and sorrow for the victims and their families. This conclusion appears to have been based by his Honour to no small extent on the contents of a victim impact statement made by a parent of the youngest of the three boys, a next-door neighbour of the applicant's. The relevant part of that statement read in this way:

"The offender lives only next door to my family. [The boy] sees him every day and my two daughters have a hatred which grows with every sight. The offender is not at all embarrassed or restricted by his actions, which is evident when he makes constant eye contact with my family. It's almost as if he is gloating."

The learned judge appears to have treated that statement as providing evidence of what he called "inappropriate behaviour towards the boy's family", because of which the remorse to be found in the applicant's favour should be discounted or its effect reduced.

Dr Kirkman was asked by counsel for the applicant to comment on demeanour which the victim impact statement might be thought to have indicated, namely (as counsel's question put it) "that he's gloating at the family and the neighbours when he sees them?" The answer was: "I was not aware that that was the neighbours' perception until today, that is, when the statement was read out, but I have observed with Adam [the applicant] that he tends to use bravado a lot." Then Dr Kirkman continued a little further on: "They may have perceived that he was gloating whereas in fact he was not gloating at all. It's their interpretation of his behaviour ..." Further on again, the doctor said: "In my knowledge of Adam he has not gloated about it at all." Of that evidence the learned judge said in his sentencing remarks:

"I am not able to accept in its entirety the doctor's explanation for the behaviour described as gloating over the neighbours. He expressed the view that you were remorseful. The existence of remorse is a question of fact, not one of expert opinion, and is to be determined by the sentencer on the whole of the materials. There may be some aspect of remorse on your part after these crimes but I am satisfied that there is a high degree of self-pity involved."

I am obliged to say that, in my opinion, it was an error to have used the victim impact statement as evidence of what his Honour referred to as "behaviour described as gloating over the neighbours". That his Honour intended to use the statement in that way, notwithstanding an early objection to it in the course of the plea on behalf of the applicant, appeared from an exchange between his Honour and counsel in which his Honour said to counsel for the applicant:

"Well, you may continue your plea on the basis that I reject his evidence as to his relationship with his neighbours. You may continue it on the basis of my going back to something that I mentioned quite early in the piece, that was my surprise that the person you are talking about was able to maintain the no comment stance throughout the whole of the police interview. ... He might have the intellectual problems but he is streetwise."

First of all, I do not consider it generally to be the function of a victim impact statement made pursuant to Division 1A of Part 6 of the Sentencing Act 1991 to provide evidence of facts referable to the conduct or attitude of an offender after the commission of the offence. That is not to say, of course, that the attitude of the offender to his victim after the event is not relevant to the sentence to be imposed for the offence. Obviously, it may be highly relevant. If, however, a want of remorse or a contumelious attitude by an offender to the victim or to the law is sought to be demonstrated, it should ordinarily be proved by admissible evidence.

Sub-s.(1) of s.95B of the Sentencing Act provides that "A victim impact statement contains particulars of any injury, loss or damage suffered by the victim as a direct result of the offence". In this case the learned judge noted in his sentencing remarks that:

"It seems to me that the effect of this inappropriate behaviour on the family cannot be said to be a 'direct result of the offence' as those words are used in the Sentencing Act 1991 s.95B(1)."

His Honour appears nevertheless to have treated the victim impact statement as somehow providing evidence of the applicant's behaviour after the commission of the offences on which he might act in formulating the sentence he was to pass. In the circumstances of this case that was, in my opinion, an error. The statement, so far as it purported to depose or refer to the applicant's behaviour, was, at best, hearsay. That was not of itself, perhaps, an objection to its reception. Hearsay evidence is commonly tendered, accepted and acted upon in the course of a plea in mitigation. In most cases in which that is done, however, it may be assumed that use of evidence of that kind was, either expressly or tacitly, conceded by counsel on either side. In this case the parent who made the statement was not called as a witness and there was, of course, no opportunity to cross-examine him or her, as the maker of the statement, about the statement.

What the maker intended to convey by the words, "he makes constant eye contact with my family. It's almost as if he is gloating", is not, to me at least, perspicuously clear. One cannot, at least without explanation, fairly take the statement, I think, to be a statement that the applicant did gloat. He denied that he did. The psychiatrist gave the opinion that, so far as he could observe, the applicant did not gloat. As it appears to me, the learned judge did attribute to the victim impact statement a meaning which was at least unclear and at worst misleading. In any event it seems to me that it was inappropriate to act upon it without having some explanation by the maker of what was meant. I note also that the statement was, fairly plainly, written out on behalf of the maker by an amanuensis, perhaps a policeman, and in the circumstances one may doubt that the words used were meticulously thought out by the person who put his or her signature to the statement.

Now, the judge appears, having attributed that meaning to the statement, to have reduced, by reference to what was said, the benefit which the applicant might otherwise have derived from the other evidence that he was remorseful. Therein, I think, lay the sting of the error.

Since on that account alone the sentence imposed by the judge must, in my opinion, be set aside in favour of another to be substituted, I need not in strictness deal with all the other grounds of the application. All of these were directed in one way or another to the proposition that the sentence was excessive both as to the total effective sentence and as to the non-parole period.

It was alleged under ground 1 that the judge wrongly gave too much weight to the protection of the community. Under ground 3 it was said that there ought to have been total concurrency between the sentences for the three counts. I may say at once that I am not persuaded that there was error in either of these respects. When one stands back and looks at the sentence as a whole, I think that the sentences were well within the range available to the judge. Crimes of this kind are, regrettably, prevalent. The community requires and deserves a dedicated resolve on the part of the justice system to stem them. Those who are minded to commit them must be dissuaded to the utmost of the courts' power to dissuade. It was certainly open to the judge, in my opinion, to order some cumulation in this case, and so much was, I think, conceded by counsel for the applicant below. There was a nastiness about these offences involving the group of three very small boys which deserved a condign punishment.

Ground 7 contended that the sentences imposed on the applicant were not proportionate to the nature and gravity of the offences. The argument founded on that ground concentrated on the discrepancy between the sentence on count 3 of two years' imprisonment and that of 18 months on each of counts 1 and 2. The judge appears to have awarded a higher sentence on count 3 because the applicant fell to be sentenced for that count as a serious offender. As to that, the judge said:

"That involves that the primary purpose of punishment must be the protection of society. The legislation permits me to impose a sentence which is more than that which would be proportionate to the crimes. I see no reason whatever to rely upon that provision but rather consider that the matter can be dealt with within the ordinary principles of proportionality."

The judge was, by implication, referring there to paragraph (b) of s.6D of the Sentencing Act.

The submission in this Court was that the discrepancy of six months should at least be taken to demonstrate that his Honour did in fact that which he affected to deny, namely, to impose a disproportionate sentence, as paragraph (b) of s.6D would, in an appropriate case, permit. The argument was that there was no material distinction in fact between the three offences that merited a distinction between sentences for them, and that the only justification for a distinction in this case must have been the imposition of a disproportionate sentence for count 3 in reliance upon paragraph (b) of s.6D.

I do not agree that the only justification for the larger sentence for count 3 was a reliance upon paragraph (b) of s.6D. Paragraph (a) of s.6D requires - that is to say, mandatorily requires - that, in determining the length of sentence of a serious offender for a relevant offence, the court must regard protection of the community from the offender as the principal purpose for which the sentence is imposed. I think it clear that in giving effect to that requirement the judge was well entitled to say that an extra six months should be added above those sentences for which the protection of the community was not, or was not necessarily, the principal purpose. Moreover, s.6E required that the sentence on count 3 be served cumulatively upon the other sentences unless the judge otherwise directed. The judge, as a matter of his discretion, when dealing with count 3 was, in my opinion, entitled by reference to s.6E to direct that there should be larger cumulation than there was in respect of counts 1 and 2. He achieved that, in my opinion legitimately, and it was within his discretion to do it.

Ground 6 complained that there was too high a minimum term imposed in this case. While I would not necessarily myself have directed the minimum which the judge directed, I am not prepared to say that his Honour erred in imposing the minimum term he did.

Ground 8 complained that the sentence in respect of count 3 and the minimum term were manifestly excessive, and various other grounds were relied on by way of fleshing out or pointing to particulars of this general ground. Under cover of these other grounds, which I need not read out in their terms, counsel in this Court referred to the youth of the applicant, to intellectual deficits under which he was said to labour, to his immature personality, to the rehabilitative prospects which were demonstrated in respect of his future and to his indicated remorse.

So far as I can see, there is no indication that the learned judge did appreciably undervalue any of these, save for remorse and rehabilitative prospects. Nevertheless it seems to me that the sentence which the judge imposed was in all the circumstances within the range open to him and I would not assign sentencing error in respect of any of the other grounds relied on.

It remains, however, for me to propose a fresh sentence, having detected a sentencing error on the part of the judge. In all the circumstances, and taking into account those matters which were urged on behalf of the applicant this morning, I would propose that the applicant be re-sentenced to be imprisoned on each of counts 1, 2 and 3 for a term of 18 months. I would direct that six months of the term imposed in respect of count 2 be served cumulatively upon the sentence on count 1 and that 12 months of the sentence in respect of count 3 be served concurrently with the sentences on the other two counts. That would produce a total effective sentence of two years and six months. I would propose that a term of one year and six months be fixed as a term to be served before which the applicant should not become eligible for release on parole. An appropriate declaration of pre-sentence detention should be made.

I invite Callaway, J.A. to give the next judgment.

Although there are eight grounds of appeal, of which one was not pressed, Mr Priest's argument comprised two main branches. The first related to the use the learned judge made of part of one of the victim impact statements. Tadgell, J.A. has identified the relevant part. The second branch was manifest excess and disproportion.

On reflection, his Honour decided that the impugned part of the relevant victim impact statement was not admissible under Division 1A of Part 6 of the Sentencing Act 1991, because it did not contain particulars of any injury, loss or damage suffered as a direct result of the offence committed against that child, but he said that the material touched upon the issue of remorse and was conceded to touch upon that issue. It is clear from the immediately preceding paragraph of the sentencing remarks that the material referred to is the material in the victim impact statement, i.e. the maker's assertion that the applicant's behaviour towards her family since the offence had been inappropriate.

In my opinion there are two answers to this branch of counsel's argument. The first is that it does not fall within any of the grounds of appeal. It is distinct conceptually, not just as a matter of language, from ground 5, which complains only that his Honour erred in placing too much weight on the perception of lack of remorse by the applicant. The second answer is that, as I read the transcript of the plea, counsel below did not maintain his objection to the admissibility of the impugned part of the victim impact statement.

At the outset of the plea the prosecutor informed the learned judge that counsel for the applicant had expressed a concern about certain portions of the statement. At his Honour's request she identified two portions. One is no longer relevant; the other is the passage that Tadgell, J.A. has read. The prosecutor stated that the Crown was content if the learned judge did not have regard to those portions. His Honour said that he would hear counsel for the applicant on that subject later but in the meantime invited him to proceed with his plea. After Dr Kirkman and the applicant's mother had given evidence, counsel announced that that was all the evidence he proposed to call. A little later he returned to the topic of the victim impact statements, saying that his instructions were not to subject their makers to any further trauma or embarrassment. He was not to be taken as saying that the maker of the statement with which we are concerned did not perceive the applicant's conduct in the way she said she did but, he continued, that had come about through no deliberate desire on the part of his client to inflict further harm on the victims' relatives. The learned judge asked whether it was not going to be open to him to draw inferences from counsel's omission to call the applicant. In response to that question counsel did call the applicant, who in the course of his evidence specifically denied the allegations in the victim impact statement and was cross-examined on those denials. After hearing submissions as to how to evaluate the evidence, the learned judge informed counsel that he might continue his plea on the basis that the applicant's evidence as to the relationship with his neighbours was rejected. The status of the victim impact statement would, his Honour said, have to be dealt with after lunch. If it contained material that the applicant was not prepared to accept, the question would arise whether the Crown would have to prove it. Counsel reiterated the position that he had earlier expressed, that there was no dispute that the family of the relevant victim had the perception described in the statement. "The question for Your Honour to consider," he continued, "is, if that is so, has it been as a result of deliberate and calculated conduct by the accused?" That alone showed that the objection to admissibility was not being pursued, but more was to follow.

Immediately after lunch counsel made reference to the fact that the Crown had agreed to the exclusion of the impugned passage in the victim impact statement. His Honour intimated that that was not a matter for the prosecutor to decide and heard submissions from her. Following those submissions the learned judge told counsel for the applicant that any difficulty of interpretation of the victim impact statement would be resolved in favour of his client, informed counsel of the purport of the statement as his Honour understood it and added that it was also an indication that the level of the applicant's remorse might not be as high as that for which counsel was contending, although that would not mean that there was not some element of remorse. After reminding counsel of his instructions not to subject the relatives to further distress, his Honour asked whether, in the light of what he had said, there was a problem. Counsel replied that there was not. He reiterated his position that the statement was made in good faith, but said that he was concerned that the learned judge should not think that there had been deliberate conduct on the part of the applicant. The informant was then called to dispel a false impression that had been created in relation to the applicant's record of interview. When that matter had been dealt with, his Honour, returning to the subject of remorse, said that its degree was affected by the material before the court relating to the applicant's behaviour towards his neighbours. Counsel said that he did not intend to pursue that question any further.

In my opinion it is clear from those exchanges that, for sound forensic reasons, counsel abandoned the objection that had been foreshadowed at the beginning of the plea. I agree with Mr Priest that counsel had little choice, but inadmissible material is received on a plea every day. If an objection is not maintained and the material is relevant, the judge is entitled to take it into account. In my opinion that is all that his Honour did, confining himself to the bearing that the victim impact statement was thought to have on the question of remorse. On that view of the matter, there is no need to refer to the passage in R. v. Dowlan [1998] 1 V.R. 123 at 140 to which we were taken. I simply observe that it is concerned with the use of victim impact statements in sentencing. Different considerations may apply to their use under s.86 of the Sentencing Act as it is about to be amended. See ss. 11, 13 and 14 of the Sentencing (Amendment) Act 1999.

Mr Priest made three other submissions in connection with this part of the case. First, the critical passage in the victim impact statement asserted that the applicant "makes constant eye contact with my family, it's almost as if he is gloating". (Emphasis added.) Counsel said that the passage had been treated below as if it had said that the applicant was indeed gloating. In my view the maker of the statement was intending to convey that the applicant's conduct towards her family was so inappropriate as almost to amount to gloating. When the matter is understood that way, I think that the distinction lacks the importance that at first it appears to have. In any event I do not consider that the point has sufficient substance to reopen the sentencing discretion.

Secondly, counsel submitted that the consequence of the applicant's sworn evidence being rejected was that the sentencing judge should have approached the question of his relations with the relevant victim's family as if there were simply no evidence on that subject. Cf. Broadhurst v. R. [1964] A.C. 441 at 457. That submission falls away once it is appreciated that the course of the plea permitted the learned judge to have regard to the victim impact statement. It is unnecessary to decide whether it would have been correct had that not been so, but I do not wish to cast any doubt on his Honour's entitlement to have regard to the applicant's demeanour when he gave evidence. It was an advantage which the learned judge enjoyed and which we are denied.

Thirdly, and this did fall within ground 5, counsel contended that his Honour erred in placing too much weight on the applicant's perceived lack of remorse. Logically, that belongs to what I have called the second branch of the argument.

The sentencing disposition was said to be manifestly excessive or disproportionate in three ways. First, it was said that the individual sentences were outside the range. In evaluating that submission I bear firmly in mind that the applicant was to be punished for the offences to which he pleaded guilty, not for more serious offences apparently disclosed by the depositions. See R. v. Newman and Turnbull [1997] 1 V.R. 146, the cases to which reference is there made and in particular the passages from R. v. De Simoni [1981] HCA 31; (1981) 147 C.L.R. 383 set out in the Victorian Sentencing Manual (2nd ed.) at 142-143. The nature of the offences and the extreme youth of the victims nevertheless required that the offences to which the applicant pleaded guilty be treated as serious examples of the indecent acts to which s.47 of the Crimes Act 1958 is directed. Moreover, counsel assented to the following interpretation of the three counts on the presentment: "[E]ach of the indecent acts charged consists of the accused's own actions towards the child together with his use of the innocent agents, the other children, in relation to the acts of each child." The applicant was an adult neighbour whom the children were entitled, or at all events likely, to trust when he invited them to join him for a walk.

Secondly, it was said that there was too much cumulation. In my opinion that submission is unsustainable in the light of authorities such as R. v. O'Rourke [1997] 1 V.R. 246, especially at 253, and R. v. Mantini [1998] 3 V.R. 340. These were serious offences against three separate victims and it was well within his Honour's discretion to consider that some cumulation was justified in respect of each of counts 2 and 3.

In developing both those submissions Mr Priest particularly criticised the disposition on count 3. The sentence was longer than the sentences imposed on counts 1 and 2 and the effect of the direction for concurrency was a greater measure of cumulation than in the case of count 2, but the sentencing remarks and the plea make it clear, as one would expect in the case of this very experienced judge, that the differences flowed exclusively from the terms of the legislation: the protection of the community was to be given primacy in sentencing the applicant on count 3 and there was what the learned President called in R. v. Lomax [1998] 1 V.R. 551 at 553, and I called in R. v. Mantini, a prima facie rule in favour of cumulation. His Honour was not bound to direct a greater measure of concurrency in the exercise of his discretion. The sentence was not, in my view, disproportionate to the gravity of the offence considered in the light of its objective circumstances. There is no single sentence that is so proportionate; there is a range of such sentences. Section 6D(a) may, in an appropriate case, result in a longer sentence within that range than would otherwise be the case, for it may lead to more weight being given to the protection of the community and relatively less weight to circumstances of mitigation. Compare Veen v. R. [No.2] [1988] HCA 14; (1988) 164 C.L.R. 465 especially at 473.5, 474.2 and 477.5. Just as Hunt, J. was entitled to attach great weight to the protection of society as a factor in the determination of the sentence in that case, so s.6D(a) required his Honour to give weight to the protection of the community when he sentenced the applicant on count 3. The disposition proposed by Tadgell, J.A. shows that that will not always result in a longer sentence, but it may do so without recourse to s.6D(b). The passage in R. v. Connell [1996] VicRp 30; [1996] 1 V.R. 436 at 443, lines 22-37, to which we were referred is directed to the predecessor of s.6D(b).

Thirdly, counsel submitted that a shorter non-parole period ought to have been fixed having regard to the applicant's age, his intellectual deficits and immaturity, his remorse and prospects of rehabilitation, his previous good character, his lack of prior convictions and what was said to be a small risk of recidivism. They were all matters of mitigation for the judge to assess on the balance of probabilities and to give such weight to them as he saw fit. Most, perhaps all of them, were entitled to added weight when his Honour turned to consider the non-parole period, but no specific error is identified in this regard and the relationship between the total effective head sentence and the non-parole period does not bespeak error, especially when the gravity of the offences is recalled. Compare R. v. V.Z. [1998] V.S.C.A. 32 at [15].

There is one other matter that I should mention. In paragraph 4.10 of Mr Priest's very thorough outline of submissions it is suggested that the sentences may have been the product of his Honour's forming the view that the applicant had previously been involved in similar conduct. There are a number of difficulties with that submission. One is that it is not within any of the grounds of appeal and it is the kind of matter on which a sentencing judge might wish to touch in his report under r. 2.27 of the recently re-titled Supreme Court (Criminal Procedure) Rules 1998. Another, not unrelated to the first, is that much might depend on how the judge used such a view. Considered as an aggravating circumstance, previous involvement in similar conduct would have to be established beyond reasonable doubt. See R. v. Storey [1998] 1 V.R. 359 especially at 371. But it may be that it was simply a matter of experience taken into account in evaluating the mitigatory material put forward through the psychiatrist's report and his oral testimony. In argument it was put forward as no more than an explanation of what counsel submitted were disproportionate sentences. As I consider that the sentences were not disproportionate, there is no need to take the matter further.

For these reasons I would dismiss the application.

Ground 5 of the application for leave to appeal is that the sentencing judge erred in placing too much weight on the perceived lack of remorse by the applicant. For the reasons advanced by Tadgell, J.A., I think that this ground has been made out.

The issue of the applicant's remorse - and in this sense I mean genuine remorse as distinct from self-pity - appeared to me to dominate the hearing of this plea. The issue became a poignant one early in the plea when the prosecutor advised the judge that she was content that he should disregard a passage in the victim impact statement made by one of the victims' parents and tendered to the court pursuant to the provisions of Division 1A of Part 6 of the Sentencing Act. The relevant passage in the victim impact statement reads:

"The offender is not at all embarrassed or restricted by his actions, which is evident when he makes constant eye contact with my family. It's almost as if he is gloating."

His Honour declined to rule, at the time when the issue was first raised, on the admissibility of this statement, and during the course of the plea suggested that it provided an indication that the applicant's level of remorse was not as high as that for which counsel was contending. It seems to me that, whilst victim impact statements are not intended to be read or used by courts as if they are statutes, this particular statement was nothing more than a perception by one parent of one victim of the applicant's post-offence behaviour, which the prosecutor had correctly conceded did not amount to material proper to be included in the victim impact statement. See s.95B(1) of the Sentencing Act.

It seems to me to have been a pity that the material was not excluded, because it loomed large throughout the sentencing hearing. The nature of the plea took, I think, a different course from the one which counsel would have pursued. Much attention was given to the characteristics of the applicant as an emotionally immature young man who sought to compensate for his deficiencies in this respect by trying to adopt a mature outlook. This aspect of his personality was the subject of evidence from the psychiatrist, Dr Kirkman, and the applicant's mother. The applicant himself gave evidence. In the course of his sentencing remarks, his Honour returned to the content of the statement. He said:

"The [victim's] family live next door to where you have continued to live since these crimes. They assert that your behaviour towards them since the offence has been inappropriate. It is conceded that this material has a relevance to the issue of the degree of remorse which you have shown. On reflection it seems to me that the effect of this inappropriate behaviour upon the [victim's] family cannot be said to be a direct result of the offence, as those words are used in s.95B(1) of the Sentencing Act ... but, as I have said, the material touches upon the issue of remorse and was conceded to touch upon that issue."

The concession to which his Honour referred was one made by counsel, sensibly if I may say so, when his Honour was pressing counsel, and at a time when, so it appears to me, his Honour had not fully considered the evidential value of the material.

However, as I read the relevant passages in the transcript, it does not seem to me that the concession obtained from counsel was a wholly unqualified one. I do not read it as meaning any more than that counsel was accepting that the applicant's continued presence in the neighbourhood was causing a problem, but was not conceding that it could be used to support a finding that there was deliberate conduct on the part of the applicant reflecting a lack of remorse. It is clear that his Honour, by the time he came to pass sentence, had reconsidered the provisions of the Sentencing Act and had concluded that the particular passage in the victim impact statement fell outside the scope of s.95B. However, he used the material on the basis of the concession which he said he had earlier obtained.

I think his Honour was taking a view of the concession which was not warranted in the circumstances, and accordingly was in error, and that that error infected his Honour's attitude towards the applicant's degree of remorse. As a consequence, his Honour, in my opinion, gave inappropriate weight to the applicant's lack of remorse.

I agree with Tadgell, J.A. that the sentencing discretion is therefore reopened. In re-exercising that discretion I am content to adopt the sentences which his Honour has proposed.

The formal order of the Court will therefore be that the application for leave to appeal against sentence is allowed. The appeal is to be treated as having been instituted and heard instanter. The appeal is allowed.

The sentences imposed below are quashed and in lieu thereof the applicant will be sentenced as follows: on count 1 - 18 months' imprisonment; on count 2 - 18 months' imprisonment; on count 3 - 18 months' imprisonment. Six months of the sentence imposed on count 2 is to be served cumulatively upon the sentence imposed on count 1. Twelve months of the sentence on count 3 is to be served concurrently with the sentences imposed on counts 1 and 2. The total effective sentence is therefore one of two-and-a-half years. The Court orders that the applicant serve a minimum term of 18 months before becoming eligible for parole.

The applicant is sentenced for the offence which is the subject of count 3 as a serious offender, and it is ordered that that fact be entered in the records of the Court.

The Court declares that the applicant has served 220 days pursuant to the sentence so imposed and we direct that that declaration and its details be noted in the records of the Court.

At a glance

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Before

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Judgment (64 paragraphs)

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Cases Cited (1)