R v RND [2002] VSCA 192

7. I agree that the application for leave to appeal against sentence should be dismissed for the reasons advanced by Eames, J.A.

12. The applicant seeks leave to appeal against sentences imposed by a judge of the County Court upon his conviction after a trial on a range of sexual offences. Those convictions comprised 5 counts of gross indecency with a child under 16 who was under his care supervision or authority, contrary to s.50(1) of the Crimes Act 1958, those being counts 1 , 3, 4, 6, and 7, each of which carried a maximum sentence of 3 years, at the time of these offences, and on each of which counts he was sentenced to 12 months imprisonment. On count 5, an offence of indecent assault, contrary to s.44(1) (carrying a maximum 5 years), he was sentenced to 1 year and 6 months imprisonment. On counts 8, 10, and 15, being counts of indecent acts with a child under 16, contrary to s.47(1) (maximum 10 years), he was sentenced to 2 years imprisonment. On each of counts 11 and 14, offences of incest, contrary to s.44(2) (maximum 20 years), he was sentenced to 3 years and 6 months imprisonment. The applicant was acquitted by direction on four counts.

15. Three months on each of the sentences on counts 1, 4, 5 and 6, six months of the sentences imposed on counts 8, 10 and 15, and one year six months of the sentence imposed on count 11 were ordered to be served cumulatively upon the sentence on count 14 and upon each other.

18. The total effective sentence was seven years and six months, and a non parole period of five years was imposed. A declaration was made as to 292 days pre- sentence detention.

21. The offences were committed against the two step daughters of the applicant, who were the daughters of his defacto wife, with whom he had commenced his de-facto relationship when her youngest daughter was about 5 years old. The applicant and his defacto wife had 5 children of their own during their relationship, those children now ranging in age from about 3 to 11 years. All of the children, and the defacto wife, are now estranged from the applicant.

24. The offences against the elder step child, whom I will call "E", occurred over a 4 month period in 1990, when she was 9 years of age. As to count 1, the applicant admitted that he committed an act of gross indecency while the child's mother was away from the house, when he exposed himself and masturbated in front of the child, without ejaculating. Count 3 was an act of gross indecency on the same occasion when he asked "E" to follow him into the bathroom, where he ejaculated into the bath. Count 4 was a separate occasion of gross indecency when he asked "E" to massage his penis and scrotum and to stroke his penis. Count 5 was a separate occasion, again, when the applicant undressed "E" and rubbed the area of her vagina. Counts 6 and 7, were two offences occurring on another occasion. The applicant required "E" to stroke his penis. She was crying and said she did not want to do so but he insisted and then he asked her to watch him as he ejaculated into the bath.

27. The offences against the younger sister, whom I will call "B", first occurred when she was aged 9. Count 8 is a count of gross indecency, which occurred in 1992 when the applicant asked her to sleep naked in his bed and he touched her vagina. Count 10 is a count of indecent act which occurred in 1994 or 1995 when the applicant asked "B" to bathe with him, whereupon he touched her in the area of the anus. Count 11 arose in 1993 when the child was 10 and where the applicant asked "B" to suck his penis and to swallow his semen when he ejaculated. Count 14 occurred in 1995 or 1996 when "B" was aged 13. The applicant asked "B" to sleep in his bed, whereupon he kissed her neck causing a love bite, and he placed his penis about two centimetres inside the vagina of "B", but then desisted, upon her demanding that he do so. Medical evidence at the trial indicated that "B"'s hymen was intact but slightly thickened after this offence. The doctor said in her statement, which was admitted into evidence, that she did not feel that there had been, what she called, "any formal penetration" of the child. Count 15 was an indecent act occurring in 1996 when "B" was 13. On the pretext of giving the child a massage the applicant removed her pants and massaged the outside of her vagina.

30. The applicant pleaded not guilty to the charges and gave evidence in his own defence, but was convicted by the jury on all save the four counts on which the judge directed an acquittal.

33. Grounds 1 to 4 were addressed together by Mr Tehan and constitute complaints that the sentence was manifestly excessive, generally, and specifically so by reference to insufficient weight being given to the applicant's prospects of rehabilitation, to factors personal to him, and by virtue of too much weight being given to general and specific deterrence. Ground 5, which was added by leave of the Registrar on 10 October 2002, proved to be the ground on which Mr Tehan focussed most of his attention. That ground reads:

"5. The learned sentencing Judge erred in finding: `on the debit side, by your plea of not guilty, you have exhibited no remorse' and thereby: (a) failed to place sufficient weight upon the applicant's prospects for rehabilitation; and, (b) punished the applicant for conducting a trial, as a result of which the exercise of the sentencing discretion miscarried'.

37. This ground was directed to a passage in the sentencing remarks of the learned sentencing judge, where, after having considered factors personal to the applicant relating to his childhood and upbringing (which were characterised by parental abuse) and after referring to his good work history and the fact that having had a problem with alcohol and drugs he had abstained from both since 1986, the learned sentencing judge concluded that the applicant did have realistic prospects of rehabilitation. The passage which was the subject of complaint then followed. His Honour said:

"On the debit side, by your plea of not guilty, you have exhibited no remorse. In finding you guilty, I think it may be safely concluded that the jury accepted that you did admit your guilt to your mother in May 1998. Page four of the report of Miss Ilett under the subheading, `Parental response to the allegations' would also suggest an acceptance of responsibility by you about that time. Yet, you were prepared to put your stepdaughters through the rigours and trauma of a criminal trial to the point where you allege that they had each lied and had concocted their evidence."

41. Mr Tehan submitted, first, that it was not reasonably open to the judge to conclude that prior to trial the applicant had admitted his guilt to his mother, nor was there a reasonable basis for the opinion which was expressed in the report by Mr Merrick Ilett[2] (a counsellor with the Sexual Abuse Counselling Clinic in Bundaberg Queensland) that he had admitted his guilt to welfare officers who had investigated the complaints made against him. There being no basis for his Honour's conclusion that the applicant had made such admissions then, so it was submitted, the adverse finding on sentence was baseless, and caused the sentencing discretion to miscarry.

44. In my opinion, his Honour was entitled to conclude as he did as to pre-trial admissions. Although Mr Tehan contended that the evidence of the applicant's mother was uncertain or unpersuasive, and may not have been accepted by the jury, it seems to me to have been very powerful indeed, and it seems highly probable that it would have impressed the jury, as it did the judge. The impact of the evidence was no doubt enhanced by the fact that the applicant directed an obscenity at his mother while she gave the evidence. The applicant's mother told the jury that she loved her son but when she had asked him to tell her the truth as to the allegations he had said that he had done despicable things to the complainants, of a sexual nature, and had sexual intercourse with the girl, "B". She said to him that the matter would not go away and asked what he would do if the case went to court and he said that although he was guilty he would plead not guilty.

47. The opinion of Mr Illet that the applicant had admitted his guilt to welfare officers was based on his examination of the record of an interview conducted with the applicant. When the allegations of the complainants were put to the applicant in detail, by welfare officers, his response was to say that he had been forgiven by God, and the issues had been resolved. He then added that he had been sexually molested as a child.

50. There was, therefore, ample justification for his Honour to conclude that not only had the applicant made the admissions but that in the face of such admissions which he made before trial the applicant then conducted the trial by contending that the complainants were liars who had concocted their story.

53. Mr Tehan's second, and primary, contention as to the words of his Honour in the challenged paragraph of his reasons was that even if his Honour was entitled to conclude that the applicant had confessed his guilt before trial, that was not a factor which could increase sentence. Mr Tehan submitted that his Honour had treated it as an aggravating factor for the purpose of sentencing that the applicant had pleaded not guilty, and in addition had regarded it as being an aggravating factor that the applicant had denied the offences and had caused the complainants to give evidence, during the course of which they were attacked as liars.

56. Mr Tehan placed reliance on the statement in the majority joint judgment in the High Court decision of Cameron v. The Queen[3]. In that case it was held in the joint majority judgment that the rationale for a reduction in sentence on account of a plea of guilty was not remorse and acceptance of responsibility, but a willingness to facilitate the course of justice[4]. Thus, their Honours held, regard should not be had to utilitarian considerations, such as the fact that the plea had saved the community the expense of a contested hearing, because to do so would unfairly discriminate against a person who exercised his right to plead not guilty. In the present case, Mr Tehan submitted, the sentencing judge adopted such a discriminatory approach, by treating it as an aggravating factor that by his plea of not guilty the appellant had caused the complainants to undergo the trauma of a trial.

59. In Cameron the High Court was concerned with a legislative regime for sentencing which was quite different from that applicable in this State. In particular, in this State s.5(2)(e) of the Sentencing Act 1991 obliged the sentencing judge to have regard to whether or not the applicant had pleaded guilty. Thus, even where an accused person pleaded guilty solely out of self interest, in order to obtain a lesser sentence, and without any concern as to whether in so doing he was facilitating the course of justice, the sentencing judge was obliged to treat his plea of guilty as a mitigating factor, although the weight to be given to it may be limited[5]. The utilitarian considerations which the High Court held not to apply in the legislative regime with which Cameron was concerned, continue to have application under the legislation in this State[6].

62. One relevant factor on a plea of guilty is whether by the plea witnesses had been spared the stress of a trial[7]. It would, however, be improper to treat the fact that a victim had been caused distress by having to give evidence as a factor of aggravation for sentencing purposes: see Siganto v. The Queen[8]. A plea of `not guilty' can not constitute a factor of aggravation[9]. An accused person is entitled to plead not guilty and to defend himself without thereby risking incurring a more severe sentence on account of the fact that he defended the charge. The issue in this case is whether, in the identified passage, his Honour was offending that principle. For the reasons which follow, I do not consider that his Honour's approach disclosed the error which Mr Tehan asserted.

65. Mr Tehan placed emphasis on the opening words of the paragraph, "On the debit side". He submitted that those words, when coupled with the balance of the paragraph - which, he said, was concerned with events of the trial - can only mean that his Honour, having dealt in the preceding paragraphs with factors which were mitigatory, was treating the matters identified in this paragraph as aggravating factors, for sentencing purposes.

68. In the first two of the three paragraphs of his sentencing remarks which preceded the disputed paragraph his Honour addressed factors personal to the applicant, relating to his deprived childhood, and then, with respect to the question of rehabilitation, his good work history. In the last of the preceeding paragraphs, and again being identified as a factor relevant to rehabilitation prospects, his Honour noted that the applicant had abstained from alcohol and drugs since 1986. His Honour concluded the last preceding paragraph by finding that the applicant did have realistic prospects of rehabilitation.

71. Although the words "On the debit side" might naturally carry the connotation that factors of aggravation and mitigation were being weighed on a scale - with the fact that the complainants were put through the trauma of giving evidence and being called liars being aggravating factors - I do not consider that that was the exercise that his Honour was performing in this paragraph.

74. His Honour, in my opinion, was continuing the evaluation of factors personal to the applicant. Having identified factors in the preceding paragraphs which were favourable to the applicant for the purpose of that assessment, he had turned to factors which were not so favourable; in particular, to the fact that the applicant had shown no remorse. The opening words of the disputed paragraph show that his Honour was concerned with the issue of remorse throughout this paragraph. It was not disputed that his Honour was entitled to consider the question of remorse; indeed, s.5(2C) of the Sentencing Act 1991 entitled him to have regard to the conduct of the trial in evaluating that issue. That sub-section reads:

"(2C) In sentencing an offender a court may have regard to the conduct of the offender on or in connection with the trial as an indication of remorse or lack of remorse on his or her part."

78. Mr Tehan submitted that that section should be regarded as directed against conduct other than the mere defence of charges, and did not impinge upon a defence which necessitated the assertion that the complainants were liars, nor did it apply to the giving of sworn evidence in the defence of the accused person. I agree that the section is concerned with matters other than the mere defence of a charge. It was not, however, the fact that the appellant had exercised his right to defend himself against the charges with which his Honour was concerned. He was evaluating the presence or absence of remorse, by having regard to the fact that the applicant had called the complainants liars and put them though the ordeal of a trial when he had previously admitted to others that he knew he was guilty. Thus, his Honour was making a finding that this was not a situation where the applicant had merely protested his innocence and in so doing had necessarily called his accusers liars, but that it was a situation where the applicant had done so knowing, and admitting before trial, that his denial was false, yet nonetheless attacked the complainants as liars. What his Honour was identifying was the completeness of the applicant's lack of remorse[10].

81. Although the opening words of the paragraph were apt to cause misunderstanding I do not consider that any error in principle intruded into the sentencing process. The sentencing judge was very experienced and it is quite improbable that he would have made the error that counsel for the applicant attributed to him. Whilst the choice of words was not, perhaps, felicitous these remarks on sentence were delivered the morning after completion of the submissions on sentence. The reasons of his Honour were brief (occupying only five pages of transcript), but not unreasonably so, having regard to the fact that the submissions in mitigation were equally brief. It would seem that the interpretation of his Honour's remarks that so recently led to the addition of ground 5 in the application for leave to appeal was not one which was noted by the applicant's advisers at the time when the remarks were delivered, nor when the grounds of appeal were first drawn up.

87. The remaining grounds of appeal, individually and in combination, complained that the sentence was manifestly excessive and failed to give adequate weight to all relevant mitigating factors. In my view, there is no substance to those complaints. The learned sentencing judge took into account all relevant mitigating factors, and properly weighed those factors. His Honour noted that although the applicant had prior convictions the last such conviction was in 1987 and none was for a similar offence. His Honour, who said he had had the opportunity to observe and hear the applicant during the trial, assessed the applicant to be a person of poor character. That conclusion was open to be drawn. Although the applicant had no similar prior convictions he nonetheless admitted to 25 prior convictions from seven court appearances between 1979 and 1987, being driving offences, drug offences, offences of dishonesty and one count of wilful damage.

90. These were serious instances of sexual abuse which constituted a significant breach of trust and, as the victim impact statements demonstrate, had profound impact on the lives of the complainants. The sentences were well within range and were not manifestly excessive. Grounds 1 to 4 fail.

93. In my opinion, the application for leave to appeal against sentence should be dismissed.

[1] See e.g. R. v. Wakime [1997] 1 V.R. 242 at 244;

R. v. NKM [2001] VSCA 71 at para.[6].

[2] His Honour was in error in identifying Mr Illet as female.

[3] (2002) 76 A.L.J.R. 382: 187 A.L.R. 65, per Gaudron, J., Gummow, J. and Callinan, J.

[5] See R. v. Hall (1994) 76 A.Crim.R. 454, at 469-470; R. v. Donnelly [1998] 1 V.R. 645, at 648-649. The same conclusion had been reached with respect to the terms of s.4(1) of the Penalties and Sentences Act 1985: see R. v. Morton [1986] VicRp 82; [1986] V.R. 863

[6] The same conclusion - that the rejection of utilitarian considerations in sentencing in Cameron applied only to the terms of the Western Australian legislation, and was not of general application - was reached by Full Benches of five judges of the Courts of Criminal Appeal in both South Australia and New South Wales: See R. v. Place [2002] SASC 101; R. v. Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300.

[7] See, for example, R. v. Donnelly, supra, at 649, per Charles, J.A.

[8] [1998] HCA 74; (1998) 194 C.L.R. 656, at 667.

[10] The approach which his Honour adopted, and my analysis of the remarks as merely amounting to a statement that there was no remorse (and that, therefore, the factor of remorse could not be relied on in mitigation), mirrors the approach to similar sentencing remarks taken by Young, C.J. in R. v. Schioparlan & Georgescu (1991) 54 A.Crim.R. 294, at 301.