R v S S G [1998] VSCA 94

9. On 21 August 1998 the learned judge sentenced the applicant to be imprisoned on count 1 for six years, on count 2 for eight years and on count 3 for two years. His Honour ordered that 18 months of the sentence imposed on count 1 and six months of the sentence imposed on count 3 be cumulative upon the sentence imposed on count 2, making a total effective sentence of ten years, and his Honour fixed a non-parole period of eight years.

12. The circumstances giving rise to these offences were as follows. The complainant is the five-year-old niece of the applicant. At the time of the offences she was living with her father and stepmother at an address in Mildura next door to the premises of the applicant's father. The applicant lived in a caravan at the rear of his parents' house. The complainant's father is the applicant's brother. On the morning of Sunday 15 February 1998 the complainant had visited the applicant in his caravan and at 10 a.m. returned home. She told her stepmother that she had left her toys and pyjamas at her grandparents' home and was sent back to retrieve them at about 10.15. At approximately 11 a.m. her father went to his parents' home to look for the complainant. He and a family friend searched the house and the yard and the father repeatedly called the complainant's name. He heard the applicant yell out that she was in his caravan, and he then went to the caravan and saw the complainant emerging in a distressed state, and noticed a mark on the side of her face. The complainant's father then confronted the applicant and accused him of assaulting the complainant. He slapped him several times about the head, but the applicant denied hitting the complainant other than by a smack on the bottom. The complainant's father then took her home, whereupon it was discovered that she had blood on her dress and on close examination blood on her underpants in the region of her genitals and on her legs.

15. The police were called and arrived shortly afterwards. They spoke to the applicant regarding the complainant's injury and the applicant again stated that he had only smacked her once on the bottom. He denied any sexual interference with the child. The applicant was then taken to Mildura police station where he took part in a tape-recorded interview, but he again denied any sexual offence had taken place. He maintained that he had only smacked the complainant once on the bottom. Upon exercising a search warrant at the applicant's caravan, the police found bloodstained bedding from the caravan and found that a child's handprints could be seen outlined in blood on a pillow from the applicant's bed.

18. Due to the complainant's distressed state, a medical examination of her was conducted under general anaesthetic. This revealed blood in her vagina over the external genitalia, a midline posterior vaginal perineal tear which included rupture of the hymen and contusion of the distal section of the vaginal wall. The exterior lacerations extended to a maximum depth of one centimetre. Treatment consisted of vaginal cleansing and removal of blood and suture of the tear which required 40 interrupted catgut sutures. The complainant was discharged the following day. The evidence was that this injury could have been caused either by digital and/or penile penetration.

21. On Wednesday 18 February the applicant asked to speak to detectives regarding the matter and during a subsequent interview admitted to sexually penetrating the complainant with his penis and to some extent with his finger. He stated that he had been drinking alcohol for two days prior to the incident and had arrived home drunk and continued to drink. He said he asked the complainant to come up to his caravan, and when she did, they both lay on the bed, and for some reason started playing with one another. He said he rubbed her with his hands from the crutch to the stomach, and then got on top of her and began rubbing himself against her and then tried to penetrate her with his penis. The complainant kept saying that it hurt, so he stopped that activity and continued to rub her with his hand. In relation to the injury to the complainant's face, the applicant said he thought he hit her on "the ass" when she answered back to him about having a shower. He said that he would not hit her on the face, and she was always running through the house, and she could have bumped into anything. It was put to him that he physically assaulted the complainant. He replied: "Guilty. I can't really say much because I can't remember all of it. That's why I'm pleading guilty to all charges".

24. The applicant now seeks leave to appeal against sentence on the grounds that -

1. The learned judge failed to give due weight in respect of counts 1 and 2 to the fact that without his voluntary admissions on 18 February,

(a) the prosecution would not have been able to succeed on the prosecution;

(b) to the fact that the basis of the counts was one discrete episode;

(c) to the circumstances under which the applicant will be required to serve the sentence imposed;

2. The sentence in respect of count 3 was manifestly excessive;

3. The learned judge failed to place sufficient weight upon the fact that the applicant would serve the sentence of imprisonment in protective custody;

4. The individual sentences imposed and the total sentence imposed on the applicant are manifestly excessive.

34. As the learned judge said in his sentencing reasons, these offences occurred at a time when the complainant, a five-year-old child, had been left in the applicant's care and was in a very vulnerable position, alone in the house where the applicant's proper role as uncle of the child should have been her protection. As his Honour then put it, the applicant had "violated every tenet of family trust and sexually abused this young child in a disgusting ... manner." His Honour characterised the offence as horrible and very serious and took the view that the protection of the community must figure prominently among the purposes for which the sentence was imposed, as well as general and specific deterrence and denunciation and punishment.

37. It is convenient to take grounds 2 and 4 together. Mr Tehan, Q.C., who appeared in this Court for the applicant, argued all grounds together, putting it that the specific grounds were in substance particulars of the claim of manifest excess. Mr Tehan submitted that while the offences were clearly repugnant, there was reasonable hope that the child would recover from their effects. The applicant was aged 40 and had no prior convictions for sexual abuse of a child. He had demonstrated considerable remorse. His personal antecedents indicated that he had been a good worker. The applicant was an alcoholic who had attempted some rehabilitation in the past, and alcohol was a major factor in the commission of the offence. The submission in relation to ground 1 was that the applicant had in effect been his own prosecutor in relation to counts 1 and 2. It was clearly the case that without his admissions the Crown would have been in some difficulty in establishing his guilt on two separate counts of sexual penetration. The applicant's plea of guilty to these counts was therefore entitled to some weight as a sentencing consideration and was also consistent with the remorse which the applicant had expressed in his letter to the court which was tendered in evidence. Under ground 1(c), it was submitted that the applicant would spend his term in protective custody and under ground 1(b) the submission was made that the circumstances giving rise to each of the three charges occurred at about the same time and were really part of the one transaction. Accordingly, so the submission ran, the applicant should have been sentenced to periods of imprisonment which were totally concurrent with each other.

40. Mr Hillman, who appeared in this Court for the Crown, submitted that the sentences were not manifestly excessive. He submitted that the offences were extremely serious (he described them as "appalling" and "despicable"), that specific and general deterrence were important considerations and that the circumstances in which they were committed were such that denunciation of this type of conduct and punishment for it were important considerations. The victim was a vulnerable five-year-old child and the applicant was in a position of trust towards her; and the offences plainly called for condign punishment. In relation to count 3 he submitted that the result of the applicant's assault upon this five-year-old girl was a visible mark on her face, a mark to her shoulder and bruises, and that the most favourable view of the evidence was that the injuries were caused by the applicant striking the victim with his hand or punching her. The infliction of any injury to a young child, he submitted, was a very serious example of the offence. In relation to the other matters argued in support of the overall submission of manifest excess, he submitted that there was no evidence before the learned judge that the applicant would serve the sentence of imprisonment in protective custody, but as to all the other matters he submitted that the learned judge had been made aware of them and had taken them into account.

43. I have already set out some of the comments made by the learned judge in his careful reasons for sentence as to the offences themselves and his criticisms of the applicant's conduct. I agree with these comments in every particular, and also with the prosecutor's description of the offences. I am nonetheless of the view that the sentences imposed were, with great respect to the very experienced sentencing judge, manifestly excessive, but only in relation to the orders for cumulation, for the following reasons. Although the applicant pleaded guilty to both counts 1 and 2, there was little evidence in his record of interview to support a separate conviction on count 1 (digital penetration) as opposed to an indecent assault. The conviction on that count therefore depended to a substantial extent upon the plea of guilty itself. The pleas of guilty to counts 1 and 2 were plainly entitled to considerable weight and were certainly consistent with the remorse expressed by the applicant in his letter to the court. There is, I think, in any event some force in the contention that the events making up counts 1 and 2 were really part of the one transaction and that the sentences imposed on these counts should have been made concurrent.

46. In all the circumstances, notwithstanding the repugnant nature of the applicant's offences, in my view grounds 1(a) and (b) and 4 have been made out. In my view the three sentences were imposed for offences the circumstances of which were "so closely related and interdependent that it can reasonably be said of them that they arise out of one transaction and do call for concurrency" (R. v. O'Rourke [1997] 1 V.R. 246, at 254) and on the further ground that the sentence imposed on count 2 was of such length that the principle of totality required that in all the circumstances there be no cumulation. I would therefore grant the application and set aside only the orders for cumulation. That would result in the total effective sentence becoming eight years' imprisonment. I would fix a non-parole period of six years.

50. I agree. I would only add that the learned sentencing judge observed, in his helpful report to this Court, that the matter of cumulation of individual sentences was one that had caused him some pause and acknowledged that the balance was a delicate one upon which opinions could differ. With respect for that view, I prefer that expressed by Charles, J.A.

54. I have had the gravest of concerns about this application. I cannot agree that in cases of the kind here in question there necessarily ought to be an order for concurrence. The question, however, in each case is whether the principles of proportionality, and, more particularly, totality, require or permit concurrence or an order for cumulation. Having regard to those principles and the present levels fixed as maximum terms for the charges in counts 1 and 2, I am not satisfied that the judge has been shown to be wrong. However, in the light of the views expressed by the other members of the Court, I do not believe it would serve any useful purpose to elaborate my reasons further.

Application for leave to appeal against sentence granted. Direct that the appeal be treated as instituted and heard instanter and allowed.

62. Sentence set aside in so far as it directed part of the individual sentences imposed on counts 1 and 3 be served cumulatively on each other and on the sentence imposed on count 2. The total effective sentence is therefore imprisonment for eight years. The Court directs that the applicant serve a term of six years' imprisonment before becoming eligible for release on parole.

65. The Court declares that the period of 249 days be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that such declaration was made and its details.