R v SBL [1998] VSCA 144

Court of Appeal (Vic)|1998-12-17|Before: PHILLIPS, C.J., ORMISTON and BATT, JJ.A.

CRIMINAL LAW - Sentence - Director's appeal - Indecent acts with and sexual penetration of two boys aged 4 to 6 - Whether sentences manifestly inadequate - Representative counts - Practice and principles to be applied when considering relevance of uncharged acts - Comparison with other appeals.

The respondent, who is aged 32, pleaded guilty in the County Court at Melbourne in July last to each of the seven counts of a presentment. These counts composed one count of the commission of an indecent act with a child under 16 (count 1), two counts of the commission of an indecent act in the presence of a child under 16 (counts 6 and 7) and four counts of sexual penetration of a child under ten (counts 2, 3, 4 and 5). These offences, which were committed between May, 1996 and April, 1998 at Ivanhoe, carried maximum penalties of ten' years imprisonment and 25 years' imprisonment respectively (count 2, laid between 1 May, 1996 and 31 November, 1997 carried a maximum penalty of 20 years' imprisonment which maximum was increased by s.60 of the Sentencing and Other Acts (Amendment) Act 1997). The Crown prosecutor informed the learned judge on the plea that "Counts 2, 3, 5, 6 and 7 are representative counts involving numerous instances of sexual inappropriate activity between the prisoner and the named victims in those counts".

The Crown prosecutor outlined the facts relating to the various counts and the learned judge received a victim impact statement from the mother of the victims, together with a psychological report from staff at the Children's Protection Society Inc. The Crown prosecutor also submitted, with the concurrence of counsel then appearing for the respondent, that the applicant should be sentenced as a serious sexual offender from the first count on the presentment. This submission reflected the circumstance that the applicant had admitted that at the Magistrates' Court at Broadmeadows on 27 April, 1992, he had been convicted on one charge of gross indecency and three charges of indecent assault whereupon he had been sentenced to be imprisoned for six months on each charge; the sentences on the third and fourth charge to be served concurrently with each other and the sentences on the fist and second charges, making for a total effective sentence of 12 months' imprisonment to be served by way of Intensive Corrections Order.

After hearing a plea for leniency in which she received a report of a Dr Lester Walton, a consultant psychiatrist, and a letter of apology from the respondent addressed to his victims, the learned judge, on 3 August last, sentenced the respondent as follows.

Counts 1 and 4 - six months' imprisonment Counts 6 and 7 - 12 months' imprisonment Count 5 - 18 months' imprisonment Counts 2 and 3 - two years' imprisonment

Her Honour directed that the sentences on counts 2 and 3 be served concurrently with each other and cumulatively upon the sentence on count 1. She also directed that the sentence on count 4 be served cumulatively on the sentences on counts 2 and 3; the sentence on count 5 be served cumulatively upon the sentence on count 4 and the sentences on counts 6 and 7 be served concurrently with each other and cumulatively upon the other counts. All this made for a total effective sentence of five and a half years' imprisonment. Her Honour then fixed a non-parole period of three years and made a declaration as to pre-sentence detention.

The appellant subsequently lodged a notice of appeal pleading the following grounds.

"1. The sentence imposed on respect of count one is manifestly inadequate, in that the sentencing judge: (a) failed to adequately reflect the gravity of the offence generally and in this case in particular; (b) failed to take into account or sufficiently take into account the aspects of specific and general deterrence; (c) gave too much weight to factors going to mitigation; (d) failed to adequately take into account the respondent's prior history and liability to be sentenced as a serious sexual offender; (e) failed to adequately take into account the breach of trust constituted by the offence; and (f) failed to adequately reflect the maximum available penalty for this offence. 2. The sentence imposed in respect of count two is manifestly inadequate for the same reasons as particularised in relation to count one. 3. The sentence imposed in respect of count three is manifestly inadequate for the same reasons as particularised in relation to count one. 4. The sentence imposed in respect of count four is manifestly inadequate for the same reasons as particularised in relation to count one. 5. The sentence imposed in respect of count five is manifestly inadequate for the same reasons as particularised in relation to count one. 6. The sentence imposed in respect of count six is manifestly inadequate for the same reasons as particularised in relation to count one. 7. The sentence imposed in respect of count seven is manifestly inadequate for the same reasons as particularised in relation to count one. 8. The total effective sentence and the non-parole period are manifestly inadequate."

I now turn to a summary of the facts of these matters.

The respondent, at material times, lived alone in a flat in Ivanhoe. He is the uncle of the victims, who were born on 25 June, 1991 and 10 June, 1994. Their mother is the respondent's sister. From May, 1996 the respondent baby-sat the elder boy regularly at his flat where he was left overnight, the mother being separated from the victims' father. A similar arrangement, including the second boy, commenced from late 1997. The respondent's conduct came to the mother's notice in an innocent disclosure by the younger boy.

Count 1 involves the elder victim whom I shall term "A". He was four years of age at the time. The respondent and he were having a shower together and the respondent allowed the child to fondle his (the respondent's) penis. He then fondled the child's penis for several minutes. The respondent volunteered the commission of this offence to the police and stated it had occurred some two years previously.

Count 2 (and I quote the Crown prosecutor on the plea as to this and the remaining counts) is "representative of offences occurring approximately every two weeks following May, 1996." It involved "A" who was aged between four and six at the material times. The respondent would lie naked on his bed with the child, who was also naked. He would fondle the boy's penis and place it in his mouth and suck it. The respondent would also masturbate his own erect penis. He would then lie on his back and place the boy on his stomach rubbing his erect penis between the child's legs and buttocks until ejaculation. On some occasions the respondent would position the child on his hands and knees placing himself behind the boy while he performed similar conduct. On some occasions there was a combination of positions and some incidents occurred more than once on a given day.

Count 3 "is again a representative count of sexual penetration with (`A')" and concerned offences that occurred regularly between December, 1997, and 20 April, 1998 when the respondent last saw the children. From December, 1997, the offences progressed so that the respondent would place his penis in the mouth of the child who would suck it. The respondent would lie on his back and position the child on top of him so that his head was near the respondent's penis and the respondent's penis was near the child's head. They would suck each other's penis at the same time for some minutes.

Count 4 is "a discrete count of sexual penetration with (`A')", an offence that occurred only once in either January or February, 1998 and was committed against "A" who was then six. It was constituted by the respondent inserting a finger up to the knuckle into the child's anus. He removed the finger when the child complained of pain.

Count 5 "is another representative count, this time sexual penetration with (`B')". It is representative of offences occurring between December, 1997 and 20 April, 1998. "B" was aged three. While the respondent was naked on the bed with "A", "B" would also take off his clothes and climb onto the bed where the respondent would fondle the child's penis and put it into his mouth and suck it. The child would then run around naked.

Count 6 "similarly a representative count" of offences occurring between December, 1997 and 20 April, 1998 and relates to the offences committed on "A" in the presence of "B". The conduct involved is that set out in the summary touching count 5.

Count 7 "is similarly a representative count" of offences occurring over the same period as count 6 and relates to offences committed on "B" in the presence of "A". Again, the summary touching count 5 is relevant.

When the police detained the respondent he made full and detailed admissions of his offences, stating that he was attracted to the boys, that what he had done was wrong and that he had committed the offences for his own sexual gratification. Asked if he believed he was a paedophile, he replied, "In a manner of speaking, I suppose I am, in that certainly I am attracted to young boys and I was in a situation where - where my nephews were staying over and...as I say...the temptation was too great."

I now turn to the arguments of counsel upon this appeal.

The learned Director, who appeared to prosecute the appeal, submitted that the sentences imposed in respect of the individual counts; the total effective sentence and the non-parole period were all manifestly inadequate and thereby demonstrated sentencing error. In developing this submission he contended that the offences of the respondent could be properly termed "secret crimes" committed on vulnerable young victims by a person in a position of trust. They were, he argued, difficult offences to detect. Further, he submitted, they were attended by a number of aggravating circumstances, which included the representative nature of nearly all the counts, the circumstance that the respondent was the victims' uncle and the ages of the children, who were aged between six and seven and three and four at material times. The Director pointed out that a perusal of the report from the Children's Protection Society showed the very serious effects that the respondent's criminal conduct had caused for the children. So, too, the argument went, the respondent's previous convictions were significant in that they involved a "similar type situation" following which the applicant ought not to have put himself in what counsel called an "opportunistic position". Finally, it was said in this opening submission, the respondent's suggestion in his record of interview with the police that he was encouraged by the children demonstrated a lack of insight into his conduct.

The learned Director submitted that the circumstance that most of the counts were representative was significant. As to those counts, he submitted the sentencing judge was entitled to sentence "having regard to the whole of the circumstances". In developing this submission he referred to the following cases, R. v. Dales [1995] QCA 329; (1995) 80 A. Crim. R. 50 and R. v. Holyoak (1995) 82 A. Crim. R. 502. In Dales the applicant had been charged with five counts of indecent dealing with a girl, incest and attempted incest, but the proceedings concluded with him being convicted only of the indecent dealing. He appealed against sentence and it was argued that he had been sentenced on the basis that his offence was part of a pattern of conduct of which he had not been convicted and that he should have been sentenced on the basis that his offence was an isolated one. The Court of Appeal of Queensland reviewed many authorities in a number of jurisdictions and allowed the appeal, holding that the sentencing judge, who had "had regard to the applicant's sexual abuse of the complainant over a lengthy period" had fallen into error. In Holyoak, the applicant sought leave to appeal against sentence imposed for two counts of indecently assaulting children. Following on his conviction he had asked that two further offences be taken into account under s.21 (1) (c) of the Criminal Procedure Act 1986 (N.S.W.). The learned sentencing judge had had before him evidence of a systemised practice of sexual abuse developed by the applicant with respect to both of his young female victims. It was argued before the Court of Criminal Appeal that the applicant had been sentenced "for everything that occurred" at the Dr Barnardo's home where he had been a supervisor with the girls in his charge. The following observations were made by Allen, J. with whom Handley, J.A. agreed and Hulme, J. substantially agreed.

"Some analysis of the law in respect of `representative charges' is required. In Reiner (1974) 8 SASR 102 at 105 Bray C.J. said: `...the learned sentencing judge was entitled to take into account the context and the surrounding circumstances of the crime and in particular it was permissible, relevant and important for him to know whether the act charged was an isolated offence or whether it was only, to use the metaphor often adopted, the tip of the iceberg. The surrounding circumstances of the crime may be taken into account in considering whether or not to extend leniency so as to reduce what would otherwise be a proper sentence but the commission of other crimes...cannot be used in order to increase what would otherwise be a proper sentence. As I have said on another occasion, the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical. But it is a recognised and time-honoured distinction for all that.' His Honour's observation that the application of the distinction to which he referred may seem to approach the metaphysical is one with which I respectfully agree. The distinction is, however, one firmly established in the cases and it is the duty of a sentencing judge to apply it." (509/510)

"In Godfrey (1993) 69 A Crim R 318 Duggan, J. expressed the principle as follows (at 322; 223): `...findings made as a result of a disputed facts hearing cannot be used as a basis for punishing an offender for offences not charged: Reiner; H. See also the cases cited in Current Sentencing Practice, Vol 2, p 110212f. Conduct amounting to the commission of the other offences can only provide a basis for increasing the sentence if the accused is found guilty of those offices at trial, pleads guilty to them, asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative offences. This is not to say that the sentencing judge cannot take into account the context and surrounding circumstances of the crime charged. It may be that in a particular case the court will be required to consider whether it is entitled to extend leniency on the basis that it is dealing with an isolated offence. But it cannot increase the sentence by reason of a finding on a disputed facts hearing that offences not admitted or asked to be taken into account have in fact been committed." (511)

The learned Director submitted that there was a "link" between Holyoak, Reiner, Godfrey and the Victorian case of R. v. Wright, a decision of the Court of Criminal Appeal of this State, unreported, judgment given 13 May, 1974. In that case Nelson, J. (speaking for the court) noted that by agreement the applicant had been presented, with his consent, on only ten counts as representative of some 65 charges of a similar nature upon which he had been committed. In such circumstances, said His Honour, "there is nothing objectionable in the court having regard to the whole picture presented by the accused's conduct in determining the sentence appropriate to be passed upon the counts to which he has pleaded guilty." (9) (I shall not address another decision of the Court of Criminal Appeal, R. v. Patterson unreported judgment given 24 April, 1990, which contains but a passing reference to representative counts.)

And so, the argument continued, Wright stands for the proposition that with agreed representative counts the judge is entitled to have regard to the whole of the circumstances. I did not understand counsel for the respondent to dispute this or the preceding propositions.

The learned Director then turned to submit that the element of general deterrence was of particular importance in these kinds of cases. He argued that the respondent was an admitted and diagnosed paedophile (this being apparently accepted by his counsel on the plea) of whom it could not be said that he was a man unlikely to reoffend. His prospects of rehabilitation were, according to counsel, "clouded", and his prior convictions significant. All this meant it was important that the sentencing judge should give significant weight to specific deterrence.

The Director then addressed the circumstance that the respondent had fallen to be sentenced as a serious sexual offender with the statutory consequence that the sentencing Court must regard the protection of the community as the principal purpose for which sentence is imposed.

He argued that the sentences imposed on the respondent indicated little, if any weight was given, to the statutory requirements.

The Director did allow that there were, in the case of the respondent, some mitigating factors to which I shall refer when I deal with the arguments of counsel for the respondent, but he contended that the respondent could not be regarded as a good prospect of rehabilitation.

The cases of R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 and R. v. Bulfin C. of A. (Vic), unreported, judgment delivered 25 March, 1998 (per Callaway, J.A. at 29/30) were cited with respect to the principles governing appeals by the Director of Public Prosecutions. In Clarke, an instance of such an appeal, the following passage occurs in the judgment of Charles, J.A., speaking for this Court:

"The principles which apply to Crown appeals are well established: Griffiths v. R. [1977] HCA 44; (1977) 137 C.L.R. 293 per Barwick C.J. at 310; Malvaso v. R. [1989] HCA 58; (1989) 168 C.L.R. 227 per Deane and McHugh JJ. at 234; Everett v. R. [1994] HCA 49; (1994) 181 C.L.R. 295 per Brennan, Deane, Dawson and Gaudron JJ. at 299. These principles were recently stated in summary form in

the judgment of the Court of Criminal Appeal of New South Wales in

R. v. Allpass (1993) 72 A. Crim. R. 561 at 562-3. See also

R. v. Osenkowski (1982) 30 S.A.S.R. 212 at 212-213 per King C.J. The relevant rules may be stated in the following propositions: 1. An appeal by the Crown should be brought only in `the rare and exceptional case' (Everett at 299) to establish some point of principle. The reason is that such appeals `represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' (Malvaso) at 234. 2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306). 3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3). 4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. 5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance." (522)

His Honour continued, "These principles are unquestionably part of the law of this State." (523)

Counsel also cited the following passage in Bulfin per Callaway, J.A.:

"There is no sentence that can be described as the correct sentence. There is a range of sentences all of which are open. If the sentence imposed was within that range, it is unfair to an applicant under s.568 or to a respondent under s.567A that he or she should suffer because of a mistake made by the sentencing judge...It is quite otherwise if the mistake resulted in a sentence that was manifestly inadequate, for that is outside the range and the public interest requires that it be reconsidered." (29)

It was agreed by both counsel that in order to succeed, the appellant must show that the sentence imposed on the respondent fell altogether outside the range of those properly available to the learned judge.

Finally, the Director addressed the maximum penalties available and contended that, should this Court allow the appeal, the sentence on each count should be substantially increased.

He also submitted that "significant cumulation" should occur so as to produce, after due regard to the principles of totality and double jeopardy, a total effective sentence of seven years' imprisonment with a non-parole period of five years.

Counsel for the respondent submitted that the sentence imposed by the learned judge was appropriate in the circumstances and that all relevant sentencing considerations had been canvassed by Her Honour. These included the applicant's pleas of guilty and their timing; his complete co-operation with the authorities from the beginning of their enquiries; his prior convictions and his status as a serious sexual offender with its statutory consequences and the maximum available penalties for each offence.

Counsel contended that the learned judge properly took into consideration the respondent's early plea as a circumstance "especially deserving of consideration". In like manner, it was said it was appropriate for the judge to have regard, as, he submitted, she did, to the respondent's full and frank admissions and his co-operation in the framing of the prosecution case. This conduct was indicative of remorse on his behalf and Her Honour's finding of "genuine" remorse in the respondent was entirely proper. Equally proper was the regard Her Honour paid to the respondent's willingness to undergo appropriate hormone replacement therapy as indicated by the report of Dr Walton; the nature and circumstances of the offences; his relationship to his victims and Dr Walton's finding that the respondent could be regarded as a paedophile. It was also evident, said counsel, that the learned judge had given due weight to such matters as proportionality and totality of sentence and accordingly, he contended, this Court should regard the sentence imposed as being within the range properly available for sexual offences involving children victims and the appeal should be dismissed.

Between them, counsel referred the Court to a large number of sentencing cases. Not surprisingly, at the end of this endeavour, no case where the circumstances were identical or even strikingly similar to that of the respondent, was identified. As I said more than once during argument, I would beg to doubt the degree of assistance that is to be gained by such an exercise. But it did demonstrate that not dissimilar offences have in fact attracted a range of sentences, which range reflects the individual circumstances of the cases. I understood both counsel to eventually subscribe to this. It followed, from the respondent's point of view, that this Court should bear the fact of a range squarely in mind and that, to succeed, the Director must show that the sentence imposed on the respondent fell altogether outside that range.

That having been said, in deference to the industry of counsel, I propose to list the cases cited and deal in some detail with one which attracted particular attention. As Winneke, P. observed in R. v. Giordano [1998] 1VR 544 at 549:

"...a general overview of the sentences imposed by Courts over a substantial period for offences of a similar character must inevitably play its part in provoking the instinctive reaction of any court which is asked to consider whether a particular sentence is...manifestly inadequate."

The cases were, R. v. Czerniawsky (unreported) C. of A. (Vic.) judgment given 28 February, 1995; R. v. McCarthy (unreported) C. of A. (Vic.) judgment given 19 February, 1998; R. v. Raymond Parsons (unreported) C. of A. (Vic.) judgment given 12 April, 1994; R. v. Ware (supra) (all put forward as cases similar to that of the respondent); R. v. Hall (1994) 76 A.Crim.R. 454 (discount for a plea of guilty); R. v. Fergeus (unreported) C. of A. (Vic.) judgment given 13 October, 1997 (individual sentences said to be similar to those imposed on the respondent); The Queen v. Gysberts (unreported) C. of A. (Vic.) judgment given 23 July, 1998 (sentence imposed after a plea of not guilty); The Queen v. O'Rourke (unreported) C. of A. (Vic.) judgment given 18 March, 1998 (sentence imposed on an offender with numerous prior convictions, but none of a sexual nature); The Queen v. Begg (unreported) C. of A. (Vic.) judgment given 1 July, 1997 (sentence on an offender without prior convictions who was a good candidate for rehabilitation); R. v. Flynn (1993) 68 A. Crim. R. 294 (cited as a similar case) and R. v. Lienkauf (unreported) C. of A. (Vic.) judgment given 9 October, 1996.

Counsel also read passages from the Victorian Sentencing Manual (1991); Fox and Freiberg "Sentencing: State and Federal Law in Victoria" (1985).

An overview of the sentences in the cited cases reveals the following:

Czerniawsky: An application for leave to appeal against sentence for one count of sexual penetration of a child under ten. Sentence: four years' imprisonment with a non-parole period of two and a half years. Application dismissed. McCarthy: An application for leave to appeal against sentence for two counts of indecent assault. Sentence: Total effective sentence of six months imprisonment. Appeal allowed and sentence wholly suspended. Ware: A case of cross appeals. Two counts of incest committed on a step-daughter. DPP's appeal allowed. Sentence of 15 months' imprisonment with a non-parole period of 12 months increased to four years' imprisonment with a non-parole period of two years. Parsons: A D.P.P. appeal one count of gross indecency; one count of indecent assault with aggravating circumstances. Sentence: adjourned bond to be of good behaviour for four years and to accept counselling from a psychologist. Appeal allowed, sentence increase to one of two years' imprisonment, suspended for 24 months. Flynn: Application for leave to appeal against sentence. Four counts of sexual penetration of a child under ten and two counts of attempting the same. Appeal allowed. Sentence of four years and nine months' imprisonment with a non-parole period of three years reduced to three years' imprisonment with 18 months non-parole period. Fergeus: An application for leave to appeal against sentence - 16 counts involving "sexual interference with and assaults on four granddaughters". Appeal allowed sentence of seven years and two months' imprisonment with a non-parole period of three years and nine months reduced to five years' imprisonment with a non-parole period of two years. Gysberts: A D.P.P. appeal. Nine counts of indecent assault on a child under 16; four counts of taking part in an act of sexual penetration with a female child under ten; three counts of taking part in an act of sexual penetration with a female child aged between ten and 16 years. Appeal allowed, sentence of two years and three months' imprisonment with a non-parole period of 19 months increased to three and a half years' imprisonment with a non-parole period of two and a half years. O'Rourke: An application for leave to appeal against sentence. One count of sexual penetration of a child under ten. Sentence of four years' imprisonment with non-parole period of two and a half years. Application dismissed. Begg: An application for leave to appeal against sentence. One count of indecent assault on a girl aged 11 - nine counts of sexual penetration of children. One count of attempted sexual penetration. One count of indecent assault on a child under 16, two counts of the commission of an indecent act with a child under 16 and one count of attempted sexual penetration of a child under ten. Appeal allowed. Sentence of "ten years and six months" imprisonment with a non-parole period of six years and six months reduced to eight years with a non-parole period of five years and eight months. Leinkauf: C. of A. (Vic) Unreported, judgment delivered 9 October, 1996. An application for leave to appeal against sentence. Five counts of indecent assault on a male person under 16; three counts of indecent assault and one count of attempted buggery. Sentence of five years' imprisonment with non-parole period of three years. Application dismissed. Giordano: An application for leave to appeal against sentence - two counts of wilfully committing an indecent act on a child under 16, one count of sexually penetrating a child under ten. Sentence of five and a half years' imprisonment with a non-parole period of three and a half years. Appeal allowed, sentence reduced to four years with a non-parole period of two years and six months.

I said I would deal in some detail with a case which attracted particular attention from counsel. This is the matter of R. v. Lomax [1998] 1 V.R. 551. This was an application for leave to appeal against sentence in circumstances where the applicant had pleaded guilty to five counts of incest; five counts of committing an indecent act with a child under the age of 16 and one count of indecent assault. These offences had been committed on the applicant's daughter when she was, variously, aged eight and (for the indecent assault) two. There was another girl victim (counts 10 and 11) who was aged five at material times. The count of indecent assault which appears to be a representative count involved the applicant touching the child's vagina while bathing her. The first count of committing an indecent act with a child under 16 (also representative) involved the applicant kissing the child so that their tongues were in their respective mouths. On some occasions they were both naked and he would lick his daughter just inside her vagina. These acts of penetration constituted counts 3 to 6, each being a count of incest. An instance of digital penetration constituted count 7 and masturbation to ejaculation over his daughter's body comprised counts 8 and 9. A touching of her vagina constituted the commission of counts 10 and 11 which counts involved the other child.

When interviewed by the police the applicant answered questions frankly and as I have earlier indicated, pleaded guilty on arraignment. The County Court judge heard a plea for leniency and proceeded to sentence the applicant to six years' imprisonment on each of the incest counts; (maximum penalty 20 years); four years' imprisonment on each of the five counts of committing an indecent act with a child under 16 (maximum penalty ten years) and one year's imprisonment (maximum five years) for the offence of indecent assault. It was directed that the sentences be served concurrently making for a total effective sentence of six years and a non-parole period of three years was fixed. The applicant then lodged notice of application for leave to appeal against sentence pleading the sole ground that the sentence imposed was manifestly excessive.

The Court, (Winneke, P., Ormiston, J.A. and Hedigan, A.J.A.) found error in the sentencing judge's application of the provisions of the Sentencing Act 1991 touching "serious sexual offenders" but did not conclude that the total effective sentence and the non-parole period lay outside the range of sentences properly open to the judge. However, they did so conclude with respect to the sentences passed on the individual counts of incest and the commission of indecent acts with a child under the age of 16 and with respect to the direction for concurrency.

Counsel for the respondent, as I understood him, sought to make a comparison between the circumstances of Lomax and the case of his client, drawing attention to the lower non-parole period fixed and arguing that the offences in Lomax were more serious than those of the respondent.

In my opinion, Lomax is a special case and involves circumstances markedly different to the case of the respondent. Of these, the most prominent is the action of Lomax in voluntarily desisting from his criminal conduct and seeking treatment from a counsellor, in circumstances where he was well aware the matter would have to be reported to the police. The second such circumstance is that, as the sentencing judge found, Lomax had been subjected to sexual abuse by his own father over a long period, which abuse led to him becoming an admitted paedophile.

It has often been said that the contention that a particular sentence is manifestly inadequate does not ordinarily admit of a deal of argument. Once the relevant circumstances are identified, then the sentence either appears on its face to be relevantly inadequate or it does not. Applying this approach and identifying those circumstances, it must be said that the sentences imposed on the individual counts by the learned judge appear to be very low indeed and I have no difficulty concluding that each is manifestly inadequate. Should the other members of the Court agree, it will fall to us to resentence the respondent.

I have noted the contentions of the learned Director as to resentencing. But, in my opinion, those contentions do not properly factor in the doctrine of double jeopardy in the particular circumstances of this case. The respondent now faces an increase in sentence which will occur at the end of a sequence of events which demonstrate that, grave as were his offences and their consequences (as indicated by the report from the Children's Welfare Society), he has done all that he could to make amends. The sentencing judge had before her (so counsel informed us) evidence that when the police knocked upon his door and cautioned him, he replied that he knew why they had come and acknowledged the truth of the allegations. He followed that by making full and frank admissions (supplying the entire evidence, as I understand it, for count 1) and giving a very early indication of his subsequent pleas of guilty. Upon the plea he agreed through his counsel that appropriate counts were to be treated as representative and he conceded through his counsel that he was to be relevantly treated as a serious sexual offender and that imprisonment of a "lengthy" character (to quote the learned judge) was an appropriate disposition for him. He also agreed, through his counsel, that cumulation directions were proper. As I have earlier indicated, he submitted a written apology to his victims.

In these circumstances I would propose that, upon resentencing, the respondent should be sentenced as follows:

Count 1 - 12 months' imprisonment Counts 2 and 3 - four years' imprisonment on each count Count 4 - three years' imprisonment Count 5 - four years' imprisonment Counts 6 and 7 - two years' imprisonment on each count.

I would also propose that the sentences on counts 1, 2 and 7 be served concurrently with each other and with the sentence imposed on count 5; that three years of the sentence on count 3, 18 months of the sentence on count 4 and one year of the sentence on count 6 be served concurrently with the sentence imposed on count 5 making for a total effective sentence of seven and a half years' imprisonment. I would fix a non-parole period of four years and nine months. In the composition of this prospective sentence the respondent has been treated as a serious sexual offender with respect to all counts.

This appeal raises, in part, the issue of sentencing on "representative" counts, which also arose in another application heard in the same week. Although I agree generally with the judgment of the Chief Justice, I have preferred to express my views on this issue in this appeal largely because the Director of Prosecutions in person chose to appear in this case and was thus able to inform the court as to any current matters of practice as to representative counts.

In the present case the facts have been stated in the judgment of the Chief Justice. They originally led to some 57 charges on which the respondent was committed for trial and to which he had then pleaded guilty. However, when the matter came on for hearing in the County Court, the counts other than counts 1 and 4, i.e. counts 2 and 3 and 5 to 7, were charged as "between dates" counts which were described as representative, in order to cover all the events which had been the subject of the 57 charges. Each of counts 2 and 3 and 5 to 7 charged events "between" certain dates, e.g. "between the 1st day of May 1996 and the 30th day of November 1997" and "between the 1st day of December 1997 and the 20th day of April 1998". Count 2, which charged a single offence but covered a period which extended from 1 May 1996 to 31 November 1997, was said, both in the course of opening to the learned judge and in the summary of facts to this Court, to be intended to describe an act of sexual penetration which occurred "every two weeks" during that period, representing some 38 of the original charges. The events covered in count 3, alleging sexual penetration by the respondent of the older child's mouth, first occurred only about five months before the respondent was apprehended and interviewed and so was said to represent only some five of the original charges. Likewise count 5 comprehended acts of sexual penetration by the younger child over the last four to five months and represented some four original charges. The final two counts of committing indecent acts in the presence of children under the age of 16, namely counts 6 and 7, also charged events occurring over the last four to five months that represented some five and four original charges, respectively.

Although there is no passage in the transcript where the respondent or his counsel explicitly consented to each of the relevant charges as being representative, it is more than apparent that the respondent had agreed to the counts so formulated. Apart from the fact that he had already pleaded guilty to all charges in the Magistrates' Court, a letter was sent to his solicitor by the Office of Public Prosecutions giving clear notice as to how the counts related to their predecessors. The plea hearing was likewise opened by the Crown to the learned judge in that way with a chart being handed up to her identifying each of the events and the original charges, with no objection coming from the respondent or those who acted for him. The plea made on behalf of the respondent took no issue with this description of the facts and relied primarily on his pleas of guilty at the earliest possible stage, including his plea to the 57 charges at the Magistrates' Court. In the course of the plea his counsel stated that the events charged developed "over a period of time" and that they were "relatively regular" occurrences.

I am of opinion that, essentially for the reasons stated by the Chief Justice, each of the sentences was manifestly inadequate, but, that being so, the significance of, and the weight to be given to, the fact that five of the counts were representative is of importance for the purpose of resentencing the respondent. At least in this jurisdiction, there seems little doubt that the practice of charging "representative" counts has been adopted for many years and, although the statutory regimes for sentencing may differ, similar practices have been adopted in other common law jurisdictions, particularly in England and at least one other State. The expressions used to describe these counts and the precise manner in which they have been used have varied so that some caution must be taken in seeking to apply statements of principle from other jurisdictions. Moreover the nomenclature has not been identical, for example, in England the expressions "sample counts" and "specimen counts" are more frequently used. Of course, it must be noted that the issue raised in each case is raised in respect to each separate count for, unless some other statutory or other basis in principle applies, a prisoner cannot be sentenced for any offence other than that to which the conviction applies. So in R. v. Storey [1998] 1 V.R. 359, in the judgment of the majority it was said (at 366):

"The facts implicit in the verdict or plea of guilty cannot be controverted. The judge must sentence according to those facts, whatever views he or she may hold about the verdict. Similarly the judge must not sentence for an offence with which the accused has not been charged."

For the latter proposition R. v. De Simoni [1981] HCA 31; (1981) 147 C.L.R. 383 was cited but what was raised there, as it has been on numerous subsequent occasions, was the principle that a judge must not in passing sentence have regard to circumstances of aggravation which would render the accused liable to a greater punishment, in the sense that a sentence should not indirectly be passed for another offence which carries a higher maximum term and of which the accused has not been found guilty.

Here what the Court is concerned with, however, are separate offences of the same kind. The issue therefore is whether these general statements of principle deny effect to the practice up to this stage adopted in this State. However, for present purposes it is sufficient to deal with the circumstances in which other alleged offences may be taken into account on a plea of guilty, there being obvious differences and difficulties where a so-called representative or sample count has been proved to the satisfaction of a jury in the face of a plea of not guilty and where admissions as to the commission of other offences have not been made for the purposes of a plea thereafter. For example, the rules against duplicity and the like would ordinarily lead to somewhat more precision in drafting a count for a contested trial than when a plea of guilty is under consideration, whatever be the arguments for saying that there should be no difference: cf. S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266; Walsh v. Tattersall (1996) 188 C.L.R. 77 and D.P.P. (Vic.) v. Judge Lewis of the County Court of Victoria [1997] 1 V.R. 391.

The rule against taking into account the commission of other offences as constituting circumstances of aggravation may be said to go back many years but for practical purposes one may start with the decision of the English Court of Criminal Appeal in R. v. Bright [1916] 2 K.B. 441. There the headnote states that such circumstances may only be taken into account "if they have been charged in the indictment and been proved to the satisfaction of the jury or admitted by a plea of guilty", a principle stated in words which do not find themselves expressed in the judgment of Darling, J. but which accurately summarises the ratio of his brief judgment on behalf of the Court. The significance of the case for present purposes is that it was not merely approved but formed the starting point for much of the reasoning in the two leading High Court decisions R. v. De Simoni and Kingswell v. The Queen [1985] HCA 72; (1985) 159 C.L.R. 264.

The principle seems also to be the foundation of more recent English cases, although strangely it has been but rarely cited. The first in the line of those cases was R. v. Huchison [1972] 1 W.L.R. 398 in which no decision was referred to in the judgment but Bright was the only authority cited in argument. Huchison is the first of a line of more recent cases and thus frequently cited both in England and in Australia, but its importance is that it is seemingly the first case in which the procedure for specimen or representative counts is acknowledged, albeit negatively. In allowing an appeal because a judge had erred in considering other related acts of incest Phillimore, L.J. said on behalf of the Court (at 399) that the accused was "in effect deprived of trial by a jury in regard to these additional offences". However, on the same page he continued:

"Of course, there are cases where the prosecution puts forward a count as a sample count, and in those cases it is well understood that, if that course is taken and the defence are notified, a judge is entitled to deal with the whole matter on the basis that the offence in fact was repeated more than once, or there were other similar incidents."

It is unnecessary to examine the application of the principle in England further in detail, since it perhaps now depends upon a rather more formal practice which, though not dependent on statute, closely resembles the procedure for taking into account other offences under s.100 of the Sentencing Act 1991. It was approved by the House of Lords in R. v. Anderson [1978] A.C. 964 and most recently, after some conflict of authority, Lord Bingham, C.J. for the Court of Appeal in R. v. Kidd [1997] EWCA Crim 1773; [1998] 1 W.L.R. 604, succinctly re-stated the principle in the Court's conclusion (at 608): "We think it inconsistent with principle that a defendant should be sentenced for offences neither admitted nor proved by verdict."

That appears to reflect precisely how the authorities in Australia and particularly in this State should be interpreted when representative or sample counts are relied upon. It is the practice where offences are admitted, but when there has not been a trial, which is presently in issue. For this purpose I see no reason to doubt that, if appropriate safeguards are applied, the convenient present practice of pleas to representative counts should be continued. Huchison was cited with approval by both the majority and the dissentients in De Simoni (see at 390, 396 and 407) and the general principles were stated in Kingswell by Brennan, J. in terms which cannot be said to be inconsistent with the reasoning of the majority (at 288-289):

"The judge is not at liberty to hold that the offender was guilty of an offence graver than the offence of which he was convicted ... nor to make findings that conflict with the verdict of the jury ... even where the practice of charging a representative offence has been sanctioned, it has been held essential that the express and unequivocal assent of the offender be given before an offence for which he has not been convicted is taken into account ... Without the offender's assent, it would be wrong to deprive him of his right to trial by jury for that offence ...".

Both shortly before and consistently since the time of those judgments there have been a large number of cases where the question has arisen as a matter of principle in other States, though it is not the subject of reported authority to my knowledge in this State. I should at once say, with great respect to those who have participated in the judgments on appeal in other States, that what has been there said has been expressed in terms which frequently have been so negative as not to permit the possibility of the exceptions which both Lord Bingham and Brennan, J. would appear to recognise as to the admission of similar offences. However, if one has regard to the earlier of the cases to which reference has subsequently been made, particularly those decided in South Australia (see esp. R. v. Reiner [1974] 8 S.A.S.R. 102), it is apparent that the exception was then recognised even if the negative aspects of the rule have been subsequently to the fore.

There has been no comprehensive discussion of the practice of charging representative counts in Victoria, though its existence has been recognised in one reported decision and in a number of unreported decisions: see e.g. R. v. Wright (C.C.A., 13 May 1974); R v Patterson (C.C.A., 24 April 1990) Medcraft (1992) 60 A.Crim.R. 181 (only a fleeting, indirect reference); R. v. Carver (C.A., 3 June 1996) but compare the very cautious recognition of the practice by Callaway, J.A. at pp.11-12; _R. v. Bailey (_C.A., 9 November 1995); R. v. Leinkauf (C.A., 9 October 1996). It has also been clearly recognised in the two standard works on sentencing in this State, both in the practice work: Victorian Sentencing Manual edited by His Honour Judge Mullaly at paras.12.301-12.313; and in the academic work by Fox & Freiberg, regrettably not revised since 1985: Sentencing: State and Federal Law in Victoria at paras.2.322-2.325. In essence these each recognise, to a greater or lesser degree, that the practice may be adopted on a plea (or whenever the "representative" offences are admitted) in much the same way as has occurred in England in accordance with the restrictions recognised in Huchison and Kidd but subject to the general principles stated by the High Court.

Reference is also made by Fox & Freiberg to the varying practices applied in the other States and argument in the present case drew attention to some of the decisions there handed down. In those decisions can be found much detailed and often valuable discussion of the principles which ought to be applied when circumstances evidencing criminal behaviour other than that of the subject offence are revealed in the course of a trial or plea. It should be noted, however, that much of the discussion is directed to that aspect of the principle referred to in the cases cited earlier in this judgment, especially De Simoni, which properly preclude a sentencing judge from imposing a heavier sentence by reason of acts for which the prisoner has not been found guilty or which have not been admitted. That principle has been worked out and applied on numerous occasions in Victoria: see e.g. R. v. Newman & Turnbull [1997] 1 V.R. 146 and cf. R. v. Sessions [1998] 2 V.R. 304. The issue in the present case, as has been stated, is not what the sentencing judge should do when the other events are disputed but what recognition should be given to those events in the sentencing process where they are admitted. On that matter many of the decisions from other States make only passing reference because they arose out of a sentence imposed after a contested trial.

There is, for example, much helpful discussion in a series of decisions in the South Australian Court of Criminal Appeal in cases such as R. v. Reiner [1974] 8 S.A.S.R. 102; Teremoana v. R. (1990) 54 S.A.S.R. 30; 49 A.Crim.R. 207 (a substantial passage from the judgment of Cox, J. is cited with approval in Medcraft at 185-188) Godfrey (1993) 69 A.Crim.R. 318; and D [1997] SASC 6350; (1997) 96 A.Crim.R. 364. The latter case, although following Reiner, is included merely to demonstrate that there are statutory differences both as to substance and procedure which must be taken into consideration for D was convicted on the recently introduced offence of "persistent sexual abuse of a child". The relevant principle in that State is most succinctly stated by Duggan, J. in Godfrey (with whom Legoe and Mohr, JJ. agreed) (at 322):

"Conduct amounting to the commission of other similar offences can only provide a basis for increasing the sentence if the accused is found guilty of those offences at trial, pleads guilty to them, asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative offences."

The appeal was there allowed, however, because the prisoner had not admitted the other offences which were in issue. Thus, the sentence was set aside and there was no "basis for increasing the sentence", as might otherwise have been the position. The only one of the cases which was decided after a plea had been made was Reiner but it is difficult to deduce the relevant ratio in that there was a striking difference as to the practice in South Australia between Bray, C.J. and Wells, J., but it seems that no real attempt had been made to invoke the procedure described by Wells, J.

Both Reiner and Godfrey were cited with approval in the recent New South Wales Court of Criminal Appeal decision of Holyoak (1995) 82 A.Crim.R. 502, but it must be emphasised again that that decision arose from a sentence imposed after a contested trial. So the relatively detailed discussion of representative charges which appears at pp.509-513 of the judgment of Allen, J. (with whom Handley, J.A. agreed), while recognising a practice of charging representative offences, concentrated on the negative aspects of the rule rather than on the approach to be taken where a series of other similar offences have been explicitly admitted. Thus it was said that any suggestion that the attack was isolated (see esp. at p.510-511) may be rebutted only to the extent that it is appropriate to look at other criminal acts as demonstrating that the charged act was not merely some casual aberration, so that the prisoner should be sentenced accordingly. The other member of court, Hulme, J., though agreeing in general terms with Allen, J. seems to have taken an even more restrictive approach, but again that must be looked at in the light of the fact that the issue arose after a trial: see at pp.515-517.

The same difficulty arises with the detailed discussion of the principles relevant to taking into account other criminal offences contained in Dales [1995] QCA 329; (1995) 80 A.Crim.R. 50. There the Queensland Court of Appeal was likewise dealing with a sentence which followed from a conviction upon trial. In a very long judgment (pp.50-91) the Court (Fitzgerald, P., Byrne and White, JJ.) considered every decision both in Australia and in England which they thought related to the issue, including extensive quotations from almost every passage said to be relevant. Nevertheless the emphasis was on the method to be adopted in making findings upon a sentencing hearing in relation to criminal offences for which the prisoner has not been charged and the extent to which they should be allowed to influence the sentence on the counts in fact charged. There is thus relatively little discussion of representative offences as such, although cases such as Reiner and Godfrey are discussed in extenso. Consequently, it is not surprising that the conclusions reached by the Court and expressed in three numbered paragraphs at pp.87-88 did not refer to the use of representative charges One of those propositions 2(2)(a) reads, in part, as follows (at 88):

"An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish ... a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted ... ".

There would, however, seem to be no recognition of any practice of representative counts in Queensland. The restrictive nature of the propositions may in part be justified by reference to the existence in Queensland of an offence known as "maintaining a sexual relationship with a child under sixteen years".

It would seem in Western Australia there is no practice of charging representative counts inasmuch as it has been held that there is no statutory authorization under the West Australian Criminal Code for such a practice: see Langridge v. R. (1996) 17 W.A.R. 346; 87 A.Crim.R. 1 at 350; 4, which is a judgment of a Full Bench of five judges, primarily sitting to resolve the basis for factual findings in sentencing cases in Western Australia and consisting of Kennedy, Walsh, Wallwark, Murray and Owen, JJ. The judgment was shortly thereafter followed in relation to a sentence for verdicts of indecent dealing where the later court held that the Victorian practice reflected in Wright did not apply in Western Australia, reference being made in the judgment of Wallwark, J. to the provision enabling the charging of a sexual relationship with a child under the age of 16, pursuant to s.321A of the Code. His Honour also pointed out that the only procedure for taking other offences into account was prescribed by s.656A of that Code. Although Langridge related to sentencing on a plea of guilty, it would seem that the statutory provisions in Western Australia are there considered impliedly to prohibit the use of the informal procedures accepted in England and Victoria.

In the end, therefore, authorities from other States provide relatively little assistance, except to the extent that in South Australia and New South Wales there seems to be some recognition of the practice of representative counts and the principle stated by Duggan, J. in Godfrey seems entirely consistent with the law and practice in Victoria. I should add that there is but brief discussion of the issue in a number of well-known textbooks on sentencing, the most helpful being that in Fox & Freiberg, except that it takes now no account of what has occurred since 1985. In Thomas, Principles of Sentencing (2nd ed.) there is some description of the practice in brief terms in the course of discussing fact-finding on sentencing, at pp.366-371. Again in Ashworth, Sentencing and Criminal Justice (1992) there is brief discussion of the practice in the chapters on "Multiple Offenders" at pp.188-190 and on the factual basis for sentencing at pp.280-284. Finally, in the interesting and detailed Canadian work on Sentencing by Ruby (4th ed.) the differences between Australian (and English) and Canadian practice are again shown in his discussion of "Other offences disclosed by the evidence" at pp.245-249, which makes clear that there is no practice as to representative offences in that country but, so it would seem, the author would disapprove of it, even if there were.

It may be seen that the Victorian practice, if it should still survive, is far less formally trammelled than that which might be accepted elsewhere. Indeed, even the English practice and that described by Wells, J. in Reiner (but denied by Bray, C.J.) requires considerably more formality than seems to have been required in this State or is evidenced on this appeal. The Victorian practice appears to have gained its acceptance in the context of fraud cases where, in order to avoid a large number of single charges, either one count or a group of counts have been charged relating to a lesser sum of money than has in fact been obtained, with agreement reached between the Crown and the accused's legal representatives as to the total sum in fact obtained by the accused. This is what occurred in Wright, the ten counts of obtaining credit by fraud particularizing the obtaining of credit amounting only to some $4,300, although the learned judge stated in his reasons for sentence that over $10,000 had been obtained. It seems that counsel for the applicant had not explicitly agreed to that sum, only that the judge might "tak[e] the other charges into account". Presumably that calculation had been made after considering the original 65 charges upon which the applicant had been committed for trial and reading the depositions as to the whole of the fraudulent scheme. Of this Nelson, J. (with whom Gowans and Anderson, JJ. agreed) said this (at p.9):

"No objection was taken by counsel to his Honour having any regard to the amounts involved in charges upon which the applicant had not been presented before him ... In view of the agreement between the parties ..., whereby the applicant was to be presented only on ten counts as representative of all counts upon which he was committed, no objection could properly have been taken ... Where an accused is committed for trial upon, or is admitted to have committed a large number of similar offences, it is not uncommon for him to be presented only upon a selected number of such offences. When that course is adopted with the consent of the accused, there is nothing objectionable in the Court having regard to the whole picture presented by the accused's conduct in determining the sentence appropriate to be passed upon the counts to which he pleads guilty."

His Honour was one of the most experienced criminal judges sitting on the Court at that time and there cannot be the slightest doubt that the practice which he described was applied regularly and thought appropriate to deal with the kind of cases he was discussing. It seems little different from that acknowledged in Huchison which had been decided two years previously and which was later to be acknowledged in Anderson, except to the extent that there was in England a good deal more formality. Nor does the practice deny the obverse of it, namely that, if there is no agreement, a prisoner must be sentenced only upon that on which he or she has been found guilty. In the course of the passage in Wright Nelson, J. said that if "objection had been taken a different question may have arisen". What occurred in Carver was not identical and so Callaway, J.A. (with whom Winneke, P. and Smith, A.J.A. agreed) was able to say that he did not intend either to endorse or disapprove of the practice relating to representative accounts. That is because the primary objection to the counts in that case was that they could be seen as duplex, or worse, in that they covered a number of events on a "between dates" basis, but as I would understand it the amount in question was reflected in the counts and there were no sums otherwise taken into account. The practice reflected in Carver occurs from time to time, as I would understand, where the counts are drafted for the purpose of a plea but they would clearly be unacceptable for the purposes of a trial. In the latter case the practice in Wright is the more common, again as I would understand it, for specific acts of fraud or deception must be pleaded in each count, and, unless the counts are to be re-drafted upon plea, the use of representative counts is seen as the more convenient.

Where counts charging sexual offences have been charged, the same principles apply so that frequently on a plea hearing specific counts are said to be representative. Such a practice is both practical and beneficial, especially to an accused. Of the decisions relating to representative counts for these offences, there is only one in which comment was made as to the method of sentencing and the factors to be taken into account. In Leinkauf at 9, Vincent, A.J.A. on behalf of the Court consisting of Hayne, J.A., himself and Coldrey, A.J.A. said (at p.8-9):

"The present case presents a complication in this context in that the plea of guilty was entered to a limited number of a representative counts after an initial denial of responsibility. By reason of that circumstance the applicant has already been substantially advantaged. Although he has admitted the commission of a large number of offences, the sentencing judge could only impose sentences in respect of the offences contained in the presentment and which were appropriate for those offences. He was not entitled to increase the severity of the sentences imposed by reference to the commission of other admitted criminal acts and could only have regard to those acts for very limited purposes when imposing sentence upon the applicant. However, it would be legitimate for a sentencing judge to take into account the substantial practical benefit already received by an offender through such an arrangement when considering the extent of that to be derived by the entering of a plea of guilty to other acts."

What precisely occurred on the hearing of the plea in that case is not clear. It seems unlikely that he had pleaded guilty at the committal stage to all the charges then made, but it is not clear in what way and to what extent the accused acknowledged at the sentencing hearing that the counts were representative for the purposes of his plea. However, the description of the facts represented by each count was apparently not objected to, so that it was clear that the counts for the plea hearing had been described as representative where appropriate. Though no discussion of authority appears in the judgment, it would seem that it was held that the extent to which account may be taken of the representative nature of each count is very limited, seemingly more limited than would be allowed in other jurisdictions. Moreover it seems inconsistent with Wright, a case of many years' standing, which permits the accumulation of the sums admittedly obtained for the purpose of determining what is an appropriate sentence on each count.

Apart from the extent to which account may be taken of the admitted facts, there seems little reason why the practice of accepting pleas to representative counts should not continue in this State. It saves time and expense from the viewpoint of both the prosecution and the accused. The description of the relevant events is made simpler for the purpose of a plea, even if that description would inadequately particularise the counts for a trial. The accused may fairly expect that the matter will be brought to a conclusion by the acceptance of the pleas at the end of the sentencing process. That is a benefit not only to the accused but also to the victims who otherwise would face the real risk of having to give evidence at some later trial if some such practice were not adopted. I should add that, notwithstanding various comments in the authorities discussed above to the effect that there is no bar on the bringing of a further prosecution for charges which are not the subject of specific counts, I am firmly of the view that any such attempt would be stayed as an abuse of process. The accused is also advantaged in that, howsoever seriously each count may be viewed by reference to the facts making up a representative count, any sentence imposed must still be proportionate and there can in effect be no cumulation, notwithstanding the requirements relating to serious sexual offences. Moreover, having regard to the principles which were examined in R. v. Lomax [1998] 1 V.R. 551 and DPP v. Grabovac [1998] 1 V.R. 664, the requirements of totality would ordinarily call for much concurrency especially in relation to charges of this nature.

On the present appeal the Director conceded that the respondent should not be sentenced for any uncharged acts but submitted only that the judge was entitled to have regard to the whole of the circumstances, including the duration of the offending in a setting and context of what was here alleged. He contended that it was an aggravating circumstance and in that sense argued that one could have regard to the whole of the events on a basis other than that the particular offence charged was isolated or unplanned. Here the facts relating to the seven counts made abundantly clear that there was both planning and deliberation of a kind characteristic of an admitted paedophile. Having regard to the fact that counsel for the respondent did not dispute the director's submissions as to the manner in which representative counts should in general be dealt with on sentence, it would perhaps be unwise to go further than to say that the whole of the circumstances relating to each count must be given proper effect and recognition for the purposes of imposing a just sentence, paying due regard to recognised principles of proportionality and totality. The present case evidenced serious breaches of trust affecting very young children but this was not denied by the respondent. It should also be noted that he had pleaded guilty to all 57 charges in the Magistrates' Court.

As to the primary issue, that asserting manifest inadequacy, I am of the opinion that the sentences here imposed, both the individual sentences and the minimum term were manifestly inadequate. I agree that the respondent should be re-sentenced in the manner proposed by the Chief Justice. I wish to say only that I am not satisfied that a consideration of each of a number of recent decisions of this Court is very instructive. The facts of every case were different and the differences were made manifest in the course of argument before this Court, such that I doubt that any of them could provide a useful measure for sentencing. Where the applicant was the accused, then the decision merely reflected whether the Court was of opinion that the sentence was either within or outside the range appropriate for both the offences and the offender. Likewise where the applicant was the Director the decision also reflected a decision as to whether the sentences were outside or within the range, but subject to the restrictions recognized in relation to Crown appeals. Moreover any re-sentencing in the latter case is also subject to the "double jeopardy" principles. To my way of thinking each case is unique, the exercise is time-consuming and the outcome is uninformative.

As to the sentences which should now be imposed I am of opinion that substantially greater sentences should have been imposed in the first place. I also consider that considerably higher sentences should have been imposed for the counts here under consideration than are presently proposed but by reason of the restrictions accepted as applicable to appeals by the Director of Public Prosecutions, the increases in sentence should be modified and the sentences imposed should be as the Chief Justice has proposed.

I have had the benefit of reading in draft the judgment of the Chief Justice. I agree with his Honour's conclusion that each of the sentences imposed on the individual counts is manifestly inadequate and with the disposition by way of re-sentencing which his Honour proposes.

Five of the seven counts were said by the prosecutor at the commencement of the plea hearing (after the respondent had pleaded guilty to all counts) to be representative counts, and that was accepted by the defence. The better view - and a view not disputed by counsel for the respondent before this Court - appears to be that the fact that a count is agreed to be a representative, specimen or sample count is an aggravating circumstance: R. v. Wright (unreported, Court of Criminal Appeal, 13 May 1974) at p.9; R_. v. Godfrey_ (1993) 69 A.Crim.R. 318 at 322, which was approved by Allen, J.(with whom Handley, J.A. agreed) in the New South Wales Court of Criminal Appeal in R. v. Holyoak (1995) 82 A.Crim.R. 502 at 511; and R. v. Kidd [1997] EWCA Crim 1773; [1998] 1 W.L.R. 604 (for the reference to which I am grateful to Ormiston, J.A.), in which at 607 and 608 the Court of Appeal through the Lord Chief Justice insisted that the other offences, if not proved by verdict, must be admitted for them to be taken into account in sentencing. It is true that Wright antedates the decisions of the High Court in R. v. De Simoni [1981] HCA 31; (1981) 147 C.L.R. 383 and Kingswell v. The Queen [1985] HCA 72; (1985) 159 C.L.R. 264 at 277-281, but the view which I have expressed is not, I consider, inconsistent with those decisions, for with agreed representative counts there is a consensual element. If, as I think, Wright is not inconsistent with De Simoni or Kingswell, this Court should not decline to follow Wright.

Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone. The evidence of the effect of the respondent's conduct upon the victims in this case is illuminating and extremely disquieting: besides the traumatic effect of the conduct upon them, it has confused them as to the boundaries of their bodies and as to questions of decency and propriety.

In the offences charged in counts 6 and 7 the victim is the person who was present, but it is, I consider, an aggravating factor of those offences that the indecent act was committed with another child who was the brother of the victim.

For the purpose of making particular comments I have mentioned some of the aggravating circumstances of the offences or some of the offences. But the respondent's criminality and culpability in respect of each offence must naturally be determined by reference to all the circumstances of that offence and all the circumstances personal to the respondent. Those circumstances are set out in the judgment of the Chief Justice. Taking them all into account, I consider that, although the Director in the end relied only upon ground (a) in proposition 2 appearing in the passage from R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522 that is set out in the judgment of the Chief Justice, he also brought himself within the other grounds there enumerated (apart from ground (d)), and particularly ground (e). I am in short of the view that the individual sentences clearly fail to meet the gravity of the respondent's crimes and, if allowed to stand, will lower sentencing standards for these serious offences (cf. R. v. Yaldiz [1998] 2 V.R. 376 at 381).

Finally, turning to the sentence which is now to be imposed, I would for myself make it clear that, but for considerations of double jeopardy operating in the case of an appeal by the Director, I would have been minded to impose more severe individual sentences and, perhaps, to direct greater cumulation.

Sentencing and Other Acts (Amendment) Act 1997

At a glance

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Judgment (98 paragraphs)

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Legislation Cited (4)

Cases Cited (1)