Supreme Court of Victoria|1996-10-08|Before: Brooking JA

R v Terrence Peter Mcneill [1996] VSC 64; [1996] VICSC 64 (8 October 1996)

Criminal law - Sentence - Incest Child sexually abused over period of years - Ten years' imprisonment not manifestly excessive.

Solicitors for the Crown: P.C. Wood, Solicitor for Public Prosecutions

2. on 11 June 1996 the applicant was presented in the County Court at Melbourne on a presentment containing one count of carnal knowledge of a girl under the age of ten years, and six counts of incest.

3. The applicant, who is now aged 48 and was aged between 30 and 39 years at the time of the offences, began sexually abusing his natural daughter in 1978 when she was aged eight years. At that time he had sexual intercourse with her, which was the subject of count 1, an offence under the then s.46 of the Crimes Act 1958, the maximum penalty for which was imprisonment for a period of 20 years. The second incident occurred some four years later when he forced her (then aged about twelve years) to perform fellatio upon him (count 2). Thereafter, until 1986, when she was aged about sixteen, vaginal sexual intercourse occurred on countless occasions; such acts form the basis of counts 3 to 7, two of them in 1983, two in 1984, and one in 1986. Counts 2 to 7 inclusive are laid under the then s.52(1) of the Crimes Act 1958, dealing with acts of sexual penetration of the child of the offender, the maximum penalty for which also is 20 years' imprisonment.

4. In 1988, the complainant spoke of the abuse to her mother, from whom the applicant had been separated for some years. The mother confronted the applicant, who readily admitted his crimes. For the reason that, as is so often seen in such cases, the complainant was too frightened to complain and her mother was unwilling to do so, the matter was not reported to the police until 1995, some seven years after the facts were known to the mother. This, as will be seen, was a factor put at the forefront of the submissions in relation to mitigating factors.

5. When the police interviewed the applicant early in 1996, the latter readily admitted the abuse, although not admitting some of the worst features of his acts, such as obtaining his way by threats and violence.

6. After a plea in mitigation, the applicant, who had no prior convictions, was on 14 June 1996 sentenced to two years' imprisonment on each of counts 1 and 2. He then, by operation of s.3 of the Sentencing Act 1991 ("the Act") became a "serious sexual offender", as defined, and s.5A of the Act accordingly applied. While s.10 of the Act does not apply to the sentences on counts 3 to 7, the sentencing judge did not regard the need to protect the community (which pursuant to s.5A(a) must be regarded as the principal purpose of sentencing) as requiring the court to impose a sentence longer than was proportionate to the gravity of the offences, as is permitted by s.5A(b). On each of counts 3 to 6, the sentence was of four years' imprisonment, and on count 7 of five years. Section 16(3A) of the Act operates so that the sentences in respect of counts 3 to 7 must be served cumulatively unless the court otherwise orders. If total cumulation would produce a sentence so long that it offends against the principle of totality, orders for at least partial concurrency would be required. In this case, in fact, orders were made for partial cumulation; however it is not suggested that the making of such orders constituted error which vitiated the sentencing process. The orders for cumulation made by the judge produced an effective sentence of ten years, imprisonment. A non-parole period of eight years was fixed.

7. The applicant now applies for leave to appeal against sentence upon the sole ground "that the sentence in all the circumstances is manifestly excessive".

8. There were no committal proceedings; the facts relating to the offences were put before the judge by way of tendering the lengthy statement made by the complainant to the police in late 1995. Count 1 (vaginal intercourse when the complainant was aged eight years) involved an act which left the complainant in pain and bleeding from the vagina. As the applicant departed the room he said, "Don't you dare tell anybody. This is our little secret. This is what daddies do to their little girls." The threat worked effectively for the applicant, and thereafter, from 1983, was supported by occasional further threats and acts of violence, ensuring that the complainant remained too fearful to complain.

9. The applicant separated from his wife in 1980, when the complainant was aged ten; for about 18 months she lived with her mother: thereafter, for reasons still unknown to the complainant, she was required to live with the applicant. At first, early in 1983, they lived in a caravan at Eildon where regular sexual activity commenced, an early example of which was the forced act of fellatio the subject of count 2, when the applicant required the complainant to kneel, he held her head and instructed her to suck his penis, and then she masturbated him to ejaculation. The complainant was required to sleep without underclothes in the same bed as the applicant, who exerted strong authority over her in all her activities.

10. Although it is not necessary to describe in detail the acts of vaginal intercourse the subject of counts 3 to 7, it is necessary to refer to some of them and to the background. Commonly the applicant ejaculated within the complainant, safe in the knowledge that a vasectomy he had undergone in 1974 would prevent impregnation. The creation of the complainant as the applicant's sexual object was further demonstrated by the requirement, when she was aged thirteen, that she don lingerie in order that he could photograph her. On one occasion when she demurred to his order to come to the bedroom because it was "time to do what dads and their little girls do", he threatened to hit her. He then disrobed them both and had intercourse.

11. At Eaglehawk in 1984, when the complainant was aged fourteen, and after the complainant's three younger triplet brothers had come to live for a time with their father, the applicant on occasion took the complainant in his car out to bushland and intercourse occurred there, one of these acts being the subject of count 5. The applicant admitted to police that these acts were premeditated. After the triplets returned to their mother, intercourse' there occurred three to four times a week. On one occasion in 1984, the subject of count 6, the complainant was having a bath, when the applicant came into the bathroom, undressed and then had intercourse with her, after which a great deal of water came out of her vagina. Even the arrival of the complainant's older sister to stay at the Eaglehawk house did not cause the applicant to desist.

12. Shortly after the complainant's 14th birthday they moved to Bendigo, where sexual intercourse continued to occur three to four times per week. Count 7 involves an act of vaginal intercourse in 1986, when the complainant was aged 15 years. By this time he was requiring her to submit to intercourse from the rear, which he described as "doggie style". Permission for her to go out on a social visit was on occasions subject first to submission to intercourse. The act the subject of count 7 became one of the final straws which eventually compelled the complainant to run away from home. The complainant had left school and was employed at a supermarket. The applicant was employed as a security guard. He had possession of a pistol. The complainant was eager to go to Castlemaine to attend a friend's wedding. The applicant pointed the pistol at her head and said, "If you want to go to this wedding, don't you dare tell anyone or this bullet will be for you." (The clear inference was that the applicant feared that as the complainant attended any social activities so would the risk increase of her complaining to others of the applicant's conduct.) After stating that, the applicant told her to get on to the bed and left the gun on the bed while he had intercourse with her.

13. Not long after this the applicant punched the complainant in the face for being late home, causing her a black eye. In May 1987 the complainant told her aunt of the assault but not the sexual abuse. Clearly enough, the aunt spoke to the applicant, who, enraged, went to the complainant's place of employment, where he abused her for having spoken of the assault and departed with the comment, "I'll see you when you have finished work." He reappeared later in the day, causing her to take fright. She hid in the coolroom, then in the toilet, and without collecting her belongings went with a friend to Cohuna. A few weeks later she returned to the home in the applicant's absence and, since the locks had been changed, climbed through the window in order to gather her belongings, many of which were missing and which have not been seen by her again. Later she required treatment for a vaginal wart resulting from a sexually transmitted disease. At that time the applicant was the only man with whom intercourse had occurred.

14. Her involvement with a church group in Perth, where she went in 1987, led her to relate to a trainee priest her account of sexual abuse. On his advice she telephoned her mother and told her of the sexual abuse and violence. The mother's response indicated that she had already held suspicions about the applicant's conduct towards the complainant. As earlier stated, the police were not informed of this until late in 1995. In a record of interview conducted not long afterwards, the applicant said he regretted his conduct, "but I probably couldn't help myself at that time". He denied threatening or assaulting her, a denial not supported on the plea. He agreed that intercourse occurred on a "regular basis", and as to why she consented he said, "I suppose she thought it was the thing to do". He agreed that "nine times out of ten" he would ejaculate within her. He said that "deep down" he was concerned about the effect upon the complainant but it was "sort of like an addiction type thing", although afterwards "it made me feel sick". He described his conduct in these words: "I shit on her" and said that she had "put up with a lot". Towards the end of the interview he said, "I sincerely regret it happened. I know I've stuffed up her life and I very much regret what I've done. I'm glad that it's out in the open."

15. A victim impact statement and psychological report were tendered during the plea hearing. That statement paints a tragic picture of eight years of fear and suffering and demonstrates that the long-term effect has been devastating. Perhaps more sad than any other single factor is this statement: "As a result of what I have brought out in the open, my mother, sister and two of my brothers do not want to have anything to do with me because I have charged my father because of what he did to me. And so it is that, wronged as the complainant was for eight years, she is now wronged by those who should have given her their support and sympathy.

16. Counsel for the applicant upon the plea told the judge that no issue was taken with the contents of the victim impact statement. The psychological report is lengthy, and it is necessary, I think, to refer only very briefly to it. It was said: "This history indicates a woman who has significant difficulties with intimate relationships, both on sexual and emotional levels. One has the impression that a relationship that demands routine and commitment evokes anxiety because she sees it as controlling and that reminds her of her father. There is therefore the question whether Ms McNeill is capable of forming a meaningful long-term relationship. It is likely that her childhood experiences have a large influence on this difficulty." Reference is then made to the difficulty that she has with any sexual activity, and the fact that she still suffers nightmares, some of them so frightening as to cause her to wake up screaming; nightmares in which she sees the applicant with his pistol, and on occasions when she dreams that the gun is fired at her. The opinion of the psychologist was that: "Ms McNeill suffers from symptoms typically suffered by people who have been subjected to prolonged trauma. Herman (1992) has described this as Complex PostTraumatic Stress Disorder." The psychologist believes that continued counselling will be necessary and that there will be a number of problems facing her in the future, including difficulty when her son, now five years old, asserts his independence in adolescence.

17. Upon the hearing of the plea, counsel for the applicant spoke of the applicant's varied and satisfactory work history: underground mining ended by a back injury; security guard; taxi driver and truck driver. He said there was "in essence nothing remarkable about this man". Counsel conceded that aggravating features included the breach of trust involved and the period of offending, some eight years. The mitigating factors relied up on were: First, the plea of guilty, preceded by the admission of his conduct in 1988 to the complainant's mother and his admission to the police when first interviewed. Secondly, the remorse which is evidenced by his comments in the record of interview. Third, the delay in prosecution which, so it was said, was not the applicant's fault. In one sense, of course, it was not the applicant's fault. On the other hand, the fear that he had instilled into the complainant was a direct cause of her unwillingness to go to the police until well into adulthood. Fourthly, rehabilitation, in the sense that there was no further offending since 1987. Fifthly, the lack of prior convictions. Counsel then conceded that the applicant was aware that he would be sentenced to a lengthy term of imprisonment.

18. In his sentencing remarks, which are not said to reveal any sentencing error, the judge accepted that the applicant had suffered remorse and that the delay in prosecuting was a relevant factor; that the applicant was unlikely to re-offend; and that by reason of the nature of the offences the applicant would find incarceration Umore difficult, more onerous than might ordinarily be so".

19. Upon this application counsel for the applicant relied upon those mitigating factors and added: Firstly, the age of the applicant and the complainant respectively 30 years and eight years at the time of the commencement of the offences. As to this the Crown submitted (correctly, as I think) that this fact tended to aggravate rather than mitigate. Secondly, the sentence necessarily is of incarceration of the applicant from the age of 48 to 56 years.

20. While it was not suggested that the sentences upon any of the individual counts were excessive, it was said that the overall sentence was manifestly excessive; that it infringed the principle of totality, but, more importantly, it infringed the principle that no sentence should be crushing.

21. In a commendably brief submission, counsel for the applicant said, I think, both in written outline and verbally, everything which could be said in what must surely have been a difficult case to argue. As has often been said, a submission that in the absence of sentencing error the sentence itself shows that it was manifestly excessive rarely admits of prolonged argument.

22. It cannot be doubted that the overall sentence was severe. While the applicant was to be sentenced for the individual crimes committed, and not for the whole course of conduct which formed the background to their commission, it is an important consideration that the offences were spread over a period of eight years, during which the applicant persistently, and sometimes with cruelty and violence, abused his daughter.

23. The consequences for her, as already referred to in the victim impact statement and the psychological report, have been horrendous. She will never be able to forget, or probably forgive, the agony of mind which the applicant caused her to suffer for such an important period of her life. In that sense she is a lifetime victim. This Court and its predecessor have often spoken of the enormity of this type of offence, of the necessity for condign punishment, and the significance of the element of general deterrence.

24. I am in the end not persuaded that the sentence, heavy though it undoubtedly is, was beyond the possible range.

28. The order of the Court is that the application is dismissed.

R v Terrence Peter Mcneill [1996] VSC 64; [1996] VICSC 64

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

R v Terrence Peter Mcneill [1996] VSC 64; [1996] VICSC 64 (8 October 1996)

Parties