R v Tutchell [2006] VSCA 294

1 I have had the considerable advantage of reading in draft the reasons for judgment of Ashley, JA.

2 I agree with his Honour that the sentencing judge erred by sentencing the appellant as if he had been found guilty of penile rape which was non-consensual from the outset. On the evidence, it was not open to be satisfied beyond reasonable doubt that the applicant was guilty of anything graver than delaying in withdrawing from the complainant after she had revoked her consent and in my view it is not to be assumed that the jury may have found that the appellant was guilty of anything graver than that.[1]

3 I also am of the view that the judge imposed a disproportionate sentence without stating that he was adopting that course and without making the findings required to show that a disproportionate sentence was necessary for the achievement of the protection of the community from the applicant. It is plain that the sentencing discretion miscarried.

4 I share Ashley, JA's views as to the nature and gravity of the appellant's offending and the appellant's character and antecedents, and his Honour's conclusion that, giving full weight to s.6D(a) of the Sentencing Act 1991, a sentence proportionate to the offence could not exceed seven or eight years. But I have vacillated as to whether it is necessary to impose a disproportionate sentence for the achievement of community protection from the appellant. Other things being equal, I should have thought that eight years is such a long time in the life of a man - especially one of the appellant's age - that it could not be said beyond reasonable doubt what the likelihood would be of the appellant re-offending at the end of that time.

5 In the end, however, I am persuaded by the contents of Dr Senadipathy's opinion and Dr Sullivan's pre-sentence report. Dr Senadipathy is in no doubt that the appellant will re-offend. As Ashley, JA observes, Dr Sullivan is slightly more optimistic about the possibility of effecting some improvement in the appellant's condition but his observations as to the appellant's paedophilic propensities and prognosis are very much to the same effect.

6 Taking both opinions in conjunction with the appellant's history of sexual offences, I conclude that the risk of his re-offending if released after a sentence of no more than eight years is so great as to justify the extraordinary punishment of a disproportionate sentence.

7 In the result, I concur in the disposition of the appeal which Ashley, JA proposes.

8 This is an appeal, pursuant to leave granted on 12 May 2006, against sentence passed upon the appellant by the judge of the County Court on 2 December 2005. On that day, the appellant having earlier being found guilty after trial on one count of rape, the learned judge imposed a sentence of 14 years' imprisonment with a non-parole period of ten years. Rape is an offence under s.38(1) of the Crimes Act 1958. The maximum sentence for that offence is 25 years' imprisonment.

9 The grounds of appeal are as follows:

"1. In imposing a sentence of 14 years imprisonment the learned sentencing Judge erred by imposing a disproportionate sentence and in the application of section 6D(b) of the Sentencing Act 1991 further erred by:

(a) failing to specify that he was imposing a disproportionate sentence, and

(b) failing to find beyond reasonable doubt that the appellant would be a danger to the community at the conclusion of a proportionate sentence.

2. In determining the sentence the learned sentencing Judge erred in that he failed to adequately state the factual basis upon which the sentence was imposed and/or he sentenced upon a basis not supported by the jury verdict.

3. The learned sentencing Judge erred in failing to consider whether general deterrence should have been sensibly moderated due to the mental condition of the appellant.

The presentment and the jury verdict

10 On 23 August 2005 the appellant was presented on two counts of vaginal rape - one penile, one digital - and on two counts of indecent assault. All the offences were alleged to have occurred on 27 April 2004. The alleged victim was a woman then aged 19, the appellant being aged 49 at the time. After a trial which lasted six days the appellant was convicted on the count of penile vaginal rape alone.

The circumstances of the matter

11 The circumstances of and surrounding the incident which gave rise to the charges were substantially common ground. But there were differences in the accounts of the complainant and the appellant with respect to events on the critical day, and it is necessary to understand the differences.

12 The following matters were common ground. In early 2004 the appellant and the complainant were enrolled as students at the Gippsland Education Centre, which is at Warragul. On occasions - the frequency of which was not altogether clear - they walked together to and from the Warragul train station. On the afternoon of 27 April, at the railway station, the appellant gave the complainant a ring, and then commenced to kiss her. She missed her train. She went to a public telephone box in order to call her mother and tell her that she had missed the train. After the complainant had completed her call, and after she had been to a toilet adjacent to the railway station, she sat on a park bench. The appellant sat down next to her, and continued his advances. He kissed and cuddled her, touched her breasts, and digitally penetrated her. Then they walked for a distance, entering a park near the Warragul Civic Centre. It was there that the act of penile rape took place. In the course of that incident, the complainant said that it was hurting her. After the incident had ended, the complainant re-dressed and returned to the railway station. The applicant followed her. He made no further attempt to interfere with her. He waited with her until, in due course, she was collected by a friend of her mother. The next morning, the complainant took the train to Warragul. When she arrived, the appellant was waiting for her at the station. He asked her what was wrong. She told him to leave her alone. She walked to the police station. The appellant followed her there. She reported that she had been raped. She did not name the appellant, but he was soon identified, and interviewed. He admitted each of the acts alleged against him, but said all had been consensual.

13 I come to the principal differences in the accounts. The complainant gave evidence in chief by a VATE recorded interview. Then she was cross-examined.

14 The complainant suffers from a learning problem which was characterized as a "mild intellectual disability". That might well explain the uneven quality of her evidence. Nonetheless, she plainly said that both when they were at the station, and when she was sitting on the park bench, the appellant kissed her; that when on the park bench he fondled her breast(s); that when on the park bench he put what must have been a finger into her vagina, and it hurt; that when on the park bench she tried to push him away, but that he persisted with what he was doing; that when in an isolated area of the park he pushed her to the ground, undid her clothing, took out his penis and entered her, the while kissing her and holding a breast; that she told him to stop penetrating her, but he did not do so; and that on that day she had her period, and was wearing a pad.

15 The appellant was interviewed at length by the investigating police officers. As in the case of the complainant, the quality of what he said was uneven, which in part at least might be attributable to him having a degree of mental retardation; although to some extent that disadvantage might be thought to have been alleviated by him having had much experience of police interviews to do with sexual matters. That said, he plainly stated that when at a table and chairs outside the toilets he and the complainant had been kissing and cuddling, that he had "fingered her", and that he had taken his penis out and had started to put it into her vagina before they were interrupted by the arrival of other people. Then, on his account, they had gone together to a quiet area of the park. He had asked her if she "wanted it" the same as on the earlier occasion. She had said yes. They had got onto the ground, but not by him pushing her down. He had attempted to enter her, but "it did not go in" - by which he meant, as he later made clear, that he had been unable to fully insert his penis into the complainant's vagina. She had said that it was hurting, and begun to cry. He had "pulled out', but he "may have gone a little - couple more," he was not sure.

16 It was also part of the appellant's account that, on each of the two occasions which he had identified in his evidence, he had asked her if she "wanted it", and that on each occasion she had said yes. Moreover, she had moved further and further onto his lap, and had invited him to "do it". On the other hand, pressed about her alleged consent, he had described a fantasy world in which he had visualized her as a five year old - or perhaps a three year old - child. I understand him to have said that a child of that age might consent in order to avoid a "flogging", or in order to get "their prize, their bag of lollies..." at the end of the sexual encounter.

Disposition of the Appeal

17 In my opinion, grounds 1 and 2, which were the grounds upon which appellant's counsel laid stress, have been made out. It is unnecessary to deal with grounds 3 and 4.

Ground 2

18 It is convenient to begin with consideration of ground 2, which complains that the learned trial judge failed to adequately state the factual basis upon which he imposed sentence; or else sentenced the appellant on a basis not supported by the jury verdict.

19 On the plea, counsel for the appellant submitted that the jury verdict bespoke acceptance of his client's account that the impugned conduct had been consensual up to the point when the complainant told his client that he was hurting her. That account was compatible, so counsel submitted, with the complainant accompanying the appellant from park to park, and with evidence given by the complainant's mother of things earlier said by her daughter concerning the appellant. The prosecutor, it appears, did not contend for any other view of the jury verdict.

20 The learned judge, having recounted the particular submission in his sentencing remarks, said this:

"I do not know that I would accept that, but it is certainly what [counsel] puts on your behalf."

21 Before this Court, counsel for the appellant submitted that it had been incumbent upon the judge below to make clear the basis upon which sentence was being imposed. But the judge had not done so. His Honour's remark had been equivocal. If, however, it was discerned that the judge had in fact sentenced the appellant on some basis other than that which counsel had advanced, such basis had been contrary to the jury verdict and also one which could not have been reached to the requisite degree of satisfaction.

22 Counsel for the Crown, in response to the submission just noted, argued that it was plain that the judge had not accepted the submission made for the appellant below. He had not been obliged to do so. A jury was entitled to accept or reject particular parts of the complainant's evidence. Its verdict was compatible with its acceptance of the evidence given by the complainant concerning count 4.

23 Having regard to the judge's invocation of s.6D (a) and (b) of the Sentencing Act 1991 - of which, more later - I do not think it is possible to discern, from the sentence itself, the factual basis on which sentence was imposed. Neither, in my opinion, can any conclusion be drawn from the remark made by the judge which I set out above.

24 There are, however, indications in the body of the sentencing remarks which in my opinion make it tolerably clear that the judge sentenced the appellant on the basis that the penile rape had been non-consensual from the outset. So, referring to how the complainant had come to miss her train, the judge noted the complainant's evidence that the appellant had "pulled [her] down". Again, explaining how the complainant had come to go into the park, his Honour said that it was "in order to escape" the appellant's "amorous and passionate" advances. Further, speaking of the circumstances of the rape, the judge spoke of the appellant having pushed the complainant to the ground, and having partly undressed her whilst "preventing [her] from moving." Each of those apparent findings was quite at odds with the appellant's account.

25 The questions which then arise are whether a finding that the rape was non-consensual from the outset was inconsistent with the jury verdict, or was such as could not have been reached with the requisite degree of satisfaction. Those questions are not academic. They go to the extent of criminality of the offending conduct. A rape constituted by a failure to immediately withdraw when intercourse was initially consensual, although grave, lacks many of the aggravating circumstances which ordinarily attend the offence of rape. The judge's finding, then, was adverse to the appellant, and so was one requiring a high standard of satisfaction.[2]

26 In my opinion, the judge's finding was inconsistent with the jury's verdict - by which I mean the verdict on all four counts. Further, I consider that in any event it was not open to the judge to be satisfied, to the required standard, that the rape was non-consensual from the outset.

27 The one offence of which the appellant was found guilty was the penile rape - which, by reference to delay in withdrawing, he effectively admitted. On the other hand, the complainant's evidence, unequivocally and patently, bespoke lack of consent to the appellant's continuing interference with her whilst the two of them were seated on the park bench. Not only should that evidence, if accepted to the criminal standard, have led to the appellant being found guilty on counts 1 and 2, it should surely have led to him being found guilty on count 3 as well as count 4 - the conduct alleged by count 3 being like in nature to that alleged by count 1, and occurring not long thereafter. Evidently, in the face of the appellant's admission that the acts which were the subject of counts 1, 2 and 3 took place, but his assertion that the complainant consented to them, the jury as a whole did not accept such evidence to the criminal standard. The same may be said of some evidence which the complainant gave that she had found the appellant's advances generally that afternoon distasteful.

28 Specifically concerning count 4, the complainant gave evidence that, in effect, the appellant had forced himself upon her when they were in the park. She also gave evidence of telling the appellant that what he was doing was hurting her. The first aspect of that evidence implied want of consent to the penile rape from the outset. It was incompatible with the appellant's account of events. The second aspect spoke of a time after entry had begun, and so was compatible with the gist of the appellant's record of interview concerning that matter.

29 In the evidentiary circumstances which I have described, and whilst it is of course true that members of a jury may reason to a particular conclusion by different paths, I agree with the submission of appellant's counsel that it was implicit in the verdicts acquitting his client of all charges except the penile rape that the jury accepted the substance of his client's account - that is, that the complainant had consented to each of the acts committed on the park bench and in the park other than the appellant's continued entry into her vagina after she had told him that it was hurting her - or at least that the jury had not been persuaded to the criminal standard that the particular offence had any other content. Whilst it is true that, conceptually, the jury could have reasoned to guilt on count 4 by not accepting the complainant's evidence to the criminal standard except in respect of that count, that seems very improbable in circumstances where the only count in respect of which the appellant was convicted was the one in respect of which he had made a specific admission.

30 I have kept steadily in mind, in reaching the conclusion which I have expressed, the judgment of Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen.[3] It shows the care which must be taken before it is concluded that a particular factual finding was express or implicit in a jury verdict. I should also make it clear that, in considering what findings of fact were express or implicit in the jury verdict, it is not to the point that, unbeknownst to the jury, the appellant had a long history of sexual offending, and that he might be thought to have understood the importance of consent in the context of alleged rape.

31 If, contrary to the conclusion which I have expressed, a finding as to the circumstances of the penile rape was not implicit in the jury's verdicts, I should in any event hold that the learned judge could not have found, to the requisite degree of satisfaction, that the rape had been non-consensual from the outset. The evidence which I have identified and discussed shows why that is so. It follows, whichever be the correct analysis, that the learned judge erred in sentencing the appellant on an unavailable basis.

Ground 1

32 I turn to ground 1. Section 6D of the Act reads as follows:

"If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence -

(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances."

33 It was not in debate that the appellant was a "serious offender", who fell to be sentenced for a "relevant offence".[4] It followed that s.6D(a) prescribed the principal sentencing purpose. It was, however, another question whether, pursuant to s.6D(b), a disproportionate sentence should have been imposed. According to the appellant's submissions, the judge - though he did not say clearly that he was doing so - apparently imposed a disproportionate sentence. That could be seen from the magnitude of the sentence itself. It reflected acceptance of an invitation by the prosecutor to act in such a way. The judge had erred by not clearly stating that he was imposing a disproportionate sentence. He had erred also by not making a finding that the appellant would remain a danger to the community beyond what would be a proportionate sentence - which required enunciation of what the proportionate sentence would be. The findings to which I have just referred must be made, counsel submitted, as a precursor to imposing a disproportionate sentence. He cited R v Prowse.[5]

34 Counsel for the Crown submitted that the prosecutor had not invited the judge to impose a disproportionate sentence. He emphasized that such an application can only be made with the express fiat of the Director of Public Prosecutions. Here there had been no such authorization. Had the judge interpreted the prosecutor's reference to s.6D to contrary effect, it would have been a case of mistake. But in fact the judge should not be taken to have misunderstood the prosecutor, or to have imposed a disproportionate sentence. His reasons should not be so understood.

35 It was implicit in the submissions made for the Crown that the correctness of what was said in Prowse was not put in issue. So the question is whether the judge's remarks - in which I include the sentence passed - show that his Honour did impose a disproportionate sentence, a sentence of a kind which is rarely imposed in the exercise of the judicial discretion.[6] In my opinion that question should be answered in the affirmative for a number of reasons.

36 First, the judge said this:

"Further, pursuant to s.6(D)(a)(b) of the Sentencing Act, sets out that the court, in determining the length of that sentence, must regard the protection of the community from the offender as the principal purpose for which the sentences imposed - that applies to you and may in order to achieve that purpose, impose a sentence longer that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. That also applies to you."

37 Counsel for the Crown submitted that the reference was, in effect, opaque. The judge had really done no more than repeat the content of s.6D(b), which applied to the appellant in the sense that the opening part of the sub-section was satisfied. I do not accept that submission. The reasons do not naturally read that way.

38 Second, the sentence imposed, having regard to the judge's view of the circumstances of the particular offence, to the appellant's long past history of sexual offending, and to s.6D, is compatible with the judge doing what his reasons suggest that he did - that is, apply s.6D(a) and (b). I do not consider that it bespeaks application only of s.6D(a).

39 Third, given what his Honour did say about s.6D, and the sentence which he imposed, I do not consider that the absence of findings of the kind mentioned in Prowse should be considered decisive.

Re-sentencing the appellant

40 The appellant falls to be re-sentenced on the common ground that s.6D(a) of the Sentencing Act 1991 ("the Act") applies in his case. There is then the question, raised by the Court, whether the imposition of a disproportionate sentence under s.6D(b) is required by the circumstances of the case. That in turn raises a question whether to impose a sentence of such a kind would be to expose the appellant to a kind of double jeopardy.

41 For the reasons which follow, I consider, in the circumstances of this case, that the imposition of a disproportionate sentence would not expose the appellant to the risk which I have just mentioned. I further consider that Court should impose a disproportionate sentence. I would re-sentence the appellant to 12 years' imprisonment with a non-parole period of 9 years.

42 The appellant presents a near intractable sentencing problem. He is a single man now aged 51. He was once married, but that was only for a short time. He is somewhat mentally retarded. In childhood, he spent years as a ward of the State because his family were unable to care for him. His education seems to have been minimal. It appears that by reason of his intellectual limitations he has been unable to hold down a paid job, although at times he has done some work in sheltered workshops, and some voluntary work. He has been a disability pensioner throughout his adult life. Thus far, one would think that his life has been one of deprivation and difficulty not of his own making.

43 Then consider the instant offence. The circumstances of the rape, as the jury should be taken to have concluded, and according to the burden of the evidence in any event, were such that, although rape is always a serious offence, this particular instance might have been expected to attract a sentence at the lower end of the range. There was a single count. There had been prior consensual sexual activity. Intercourse, at the outset, was consensual. When consent was withdrawn, the appellant did not long persist. There was no humiliation or debasement of the victim. Nor was violence employed, or a weapon produced. Had this been a first offence committed by a young man of limited intellect, who had endured a difficult childhood, any period of imprisonment would very likely have been less than five years.

44 But what I have thus far said is only a part of the whole picture. The appellant has had, since he was a young man, an uncontrollable sex urge. It has repeatedly manifested itself over the years in a variety of ways. Men, women, children and animals have at different times been involved. He has been before the courts on a series of occasions since 1974 in respect of sexual offences. The present offence aside, he has been gaoled[7] for protracted periods - in 1974, 1978, 1979, 1989, 1999, and most recently in 2006. Some sentences, it will be understood, were imposed whilst the appellant was already imprisoned for other offences. In all, despite much imprisonment, and despite long-term drug therapy (sex suppressant hormone medication) and counselling, it seems clear that the appellant's sex urge has remained uncontrolled in the longer term. None of this is to say - although he may well have got sexual satisfaction from the conduct constituting the offences - that the appellant is by conscious intent a man bent on offending. It seems, rather, that he is sexually amoral. But however that may be, both the law and medicine have had very limited success in inhibiting his offending behaviour.

45 It is not necessary to trawl through the minutiae of the appellant's past history of offending. It is, however, desirable to give some context to the general observations which I have thus far made.

46 Focussing upon sexual matters,[8] in 1974, the appellant, then aged 19, was convicted on a count of buggery with his younger brother, and a count of incest with his sister. He was sentenced to two years detention in a youth training centre. He was regarded then, as the Court of Criminal Appeal later remarked, as being completely incompetent in normal family relationships.

47 Then, in 1976, the appellant pleaded guilty to the following pertinent offences:

"one count of indecently assaulting a girl under the age of sixteen years, one count of indecently assaulting a boy under the age of sixteen years, one count of buggery with a woman, one count of buggery with a boy under the age of fourteen years, two counts of buggery with men, two counts of buggery with animals."

48 In a judgment which in my respectful opinion provides a model example of the necessary fusion of law and humanity, the Court of Criminal Appeal, considering an appeal against sentence, explained the nature of the offences and the dilemma which the appellant posed. The offences against two children involved touching their genitalia. The acts of buggery with two men and one woman were acts between consenting adults in private. Most often, the appellant was the passive partner. An act of buggery with a young man involved an adolescent male prostitute who had offered himself to the appellant. The buggery with animals took place in the course of drunken sex orgies. On one occasion, a group of men including the appellant had engaged in a "tournament" of buggering a wallaby. In respect of that conduct, the Court observed that -

"The evidence is that this retarded man is easily imposed upon by others and encouraged to put on a performance for their amusement."

49 For the offences which I have described, the Court imposed a total effective sentence of five years, with a minimum term of three and a half years. It did so only after it had unsuccessfully explored the possibility of a non-custodial disposition as would have enabled the appellant to receive the behaviour modification treatment - or, if that failed, then the use of sex-suppressant hormone medication - which, plainly, it considered that he required. This is some of what the Court said:

"The evidence shows that the applicant has an established tendency to commit offences of the type of which he has been convicted. Upon the evidence it is likely that if he undergoes a prison sentence without receiving any treatment he will, after his release, resume the commission of these kinds of offences. The main concern of the Court is to take a course, if possible, which would protect young girls and boys from sexual offences by the applicant."

And

"We are satisfied that if the applicant receives no treatment it is likely that he will again commit sexual offences against children. The evidence does not establish whether he has a specific compulsion towards sexual activities with children or whether these activities are

a product of childish inadequacy leading him to seek sexual outlets with those to whom he relates most easily."

And

"There being no practical way of having the applicant treated in the manner proposed, there is no alternative to sentencing him to imprisonment. For his own protection he is likely to be kept in G Division at Pentridge where he can be protected as well as in many psychiatric and mental hospitals."

And

"It is proposed that some behaviour modification programme be introduced, although it is unlikely to be comparable to that at La Trobe University for many years. The dilemmas of this case demonstrate the need for such a programme."

50 Whilst the appellant was awaiting trial or sentence in respect of the offences which I have just described, he admitted to the rapes of two women in 1976. The offences would have gone unsolved, it appears, but for his confession**.** In respect of those offences**,** a total effective sentence of ten years' imprisonment was imposed, with a minimum period of six years. The sentence was sustained on appeal. That left the appellant with the prospect, in all, of some 13 years' imprisonment.

51 Again, the offending had some unusual features. It was noted by the Court of Criminal Appeal[9] that -

" ... in one case the applicant invited the woman concerned back to his flat, and he was prepared to rape her without ejaculating inside her (she having complained that she was frightened of becoming pregnant) ..."

52 The offending on those occasions was not accompanied by any gratuitous violence. An absence of violence of such a kind seems to have been a constant feature of the appellant's conduct over the years.

53 Next, in March 1989 the appellant pleaded guilty to a substantial number of charges involving children. The offences were committed in late 1987 and early 1988. The victims were in some instances the very young children of the appellant's then wife (by previous relationships), and also a somewhat older nephew and niece. The most serious offences involved vaginal penetration - penile and digital - and the appellant putting his penis into the mouths of children.

54 For these offences, a total effective sentence of 11 years' imprisonment was imposed, with a minimum term of seven years. The sentence was affirmed on appeal in August 1989.

55 The appellant was released, I should think, in the first half of 1996. But then, in April 1999 he was convicted of loitering offences, and was sentenced to two years' imprisonment.

56 Thereafter, no presently relevant offending conduct occurred until 2004 and 2005. The latter conduct was the rape which is the subject of the present appeal.

57 The former conduct, which took place in early 2004, involved a young man whom the appellant had met - just as he did the complainant in the present matter - at the Gippsland Education Centre. Although charges were laid in June 2005, they were not dealt with until March 2006. They were not prior convictions for the purposes of the sentencing disposition below. But they should be considered on the present re-sentencing.

58 The appellant pleaded guilty to one charge of indecent assault, and to two charges of committing an indecent act. He was sentenced to an aggregate period of 18 months' imprisonment, to be served concurrently with the sentence which is the subject of the present appeal. The offending conduct involved the appellant masturbating in the presence of the victim, placing his hand on the victim's penis, and placing the victim's hand on his own penis.

59 I go to another aspect of the material pertinent to re-sentencing the appellant. The judge below obtained a pre-sentence report from a psychiatrist. I have considered the report. Unfortunately, it contains a number of significant factual errors. Nonetheless, the appellant's life history gives powerful support for the doctor's opinion that the appellant " lacks the capacity to control his sexual desire, and functions at a very primitive level of social and moral responsibility and functioning".

60 As to the future, the doctor considered that there was "... no evidence so far to support that he has the capacity for change". He was unsurprised that the appellant had not benefited from treatments of different kinds which had been given him over the years. He considered that the appellant was at high risk of re-offending. Those conclusions may have had some grounding in the inaccurate history which the doctor had recorded. Even so, and given a certain slowing in the appellant's offending conduct, they seem generally to accord with the appellant's life-history.

61 The Court reserved its decision when seised of most, but not all, of the material which I have summarized. Becoming satisfied that there had been sentencing error of the two kinds which I have identified, a question arose whether, having regard to the circumstances of the rape as the jury must have found them to be, a proportionate sentence, even allowing for the application of s.6D(a) of the Sentencing Act, would adequately protect the community from the appellant. The Court then called the matter on again, and raised with counsel the question whether the circumstances were such that a disproportionate sentence under s.6D(b) of the Act should be imposed.

62 Counsel for the appellant emphasized the predictive aspect inherent in such a disposition. He submitted that the Court was not equipped to decide the issue, there being no up-to-date and accurate psychiatric report, no material bearing upon his client's current physical state of health, a deficiency in material as to what might be done in the future, medically, to curb his client's sexual urge, and an absence of material as to what supervision could be provided for the appellant if and when he was released.

63 Counsel for the Crown joined issue with the submission that there was insufficient material to enable the Court to decide whether a disproportionate sentence should be imposed. The Crown, he said, adopted a neutral position whether such a sentence should be passed That was in light of its not having made a positive submission in the court below that such a sentence was required. Counsel added, in answer to the Court's question, that no question of a kind of double jeopardy arose if in fact the sentencing judge had imposed a disproportionate sentence.

64 In the circumstances described, the Court sought a pre-sentence report. On 12 December it received the comprehensive and illuminating report of Dr Danny Sullivan, dated that day. Dr Sullivan is a highly qualified forensic psychiatrist, and is presently the Assistant Clinical Director of the Victorian Institute of Forensic Medicine. For the purposes of his report, he interviewed the appellant, evidently at length, and read much pertinent material.

65 The doctor's opinion, overall, suggests that there would be a very significant continuing risk of the appellant re-offending in the event that he was returned to the community in the foreseeable future. I should highlight some aspects of the report in that connection.

66 First, the appellant told the doctor that he had very few friends that were not paedophiles.

67 Second, the plaintiff reported that he had been treated with depo-provera, essentially since 1983; and at times with a second anti-androgen. The significance is, the medication notwithstanding, that the appellant has continued to offend.

68 Third, the appellant gave a history of chronic alcohol abuse; and volunteered that "when drunk he tended to get into trouble." He told the doctor that he had never been treated for his problem with alcohol.

69 Fourth, and here I quote directly from Dr Sullivan's report -

• "Mr Tutchell acknowledged a wide range of sexual interests. He reported that he was more interested in women than in men. He told me that his ideal partner was aged 17 or 18 but acknowledged also that he would fantasise about children as young as 3. When I asked him what attracted him to children as young as 3 he reported that he enjoyed their reactions, the way they moved which he said 'gives me the impression that they are asking for.' When I asked what he fantasised about doing he talked about having intercourse between their legs. He reported that he fantasised about girls aged 16 wearing G-strings. He reported that he would have fantasises about children dressed provocatively. When I asked if he had any particular deviant interests he reported that he liked the idea of boys aged about 13 to 16 in dresses."

• "Mr Tutchell told me that he found it difficult to form normal adult relationships. He reported that he had previously been in such relationships but found it easier with children. He stated that currently he did not masturbate and that the Depo-Provera had dissipated all urges. He reported that he was able to sustain a partial erection but was unable to ejaculate and told me that masturbation became painful and took longer than usual. He reported that in the past he would masturbate three times per day but now did not masturbate at all."

• "Mr Tutchell informed me that he had previously undergone the Sex Offender Program on five occasions. He told me that he had attended Parliament Place Clinic in Spring Street, the Sex Offender Program as D Division of Pentridge (which he proudly told me he was the first prisoner to undergo), and at Ararat Prison, however when I asked him to determine what he had gained out of this, it appeared that he had not undergone any offence-specific treatment since the mid-1990's, denied ever having been exposed to treatments reducing reliance on deviant imagery (such as behavioural techniques for masturbation control), and in fact was only able to tell me that he had benefited from the social skills program. Mr Tutchell denied ever having refused the Sex Offender Program, however he told me that he had previously had a relationship with someone who now worked at Marngoneet Prison and that this might impede his transfer there."

• "He reported that in general the victims were known to him and consisted of people to whom he had access. He denied the use of prostitution but did acknowledge having used pornography, particularly videos, in the past. Somewhat astonishingly, Mr Tutchell told me that he did not like watching television because there was far too much sex on it".

• "When I asked him to postulate what risk factors might predispose him to offending, he promptly replied that he suffered from paedophilic urges and upon seeing children he found attractive, immediately found himself thinking about how opportunities might be generated to molest them. He described ways in which he would seek to move closer to the children, have adults leave the room and gain the trust of children."

70 Fifth, the doctor expressed the following conclusions. Again I quote his report verbatim:

• "Mr Tutchell has a psychiatric diagnosis of paedophilia which is recognised in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR). He describes predominant sexual arousal to prepubescent female children, but also acknowledges sexual arousal to males, with a number of deviant interests. His past history is in accord with this and includes bestiality and sexual offences involving lack of consent in adults as well as against children of both genders. Mr Tutchell was very frank in acknowledging he is a paedophile".

• "He has a mild intellectual disability which is manifest not only in his history and his inability to sustain employment and adult relationships, but in his poor judgement, lack of consequential thinking, impulsivity, and inability at times to constrain his impulses. His intellectual limitations are relevant in that they render it more difficult for Mr Tutchell to form consensual adult relationships, impair his judgement about how to avoid offending, and may also expose him to potential victims. In addition his intellect may limit his participation in some programs".

• "Mr Tutchell also has a clear diagnosis of alcohol dependence, manifest over many years in high doses of alcohol use, withdrawal symptoms on a daily basis and a need to drink to abate these, and disturbed behaviour when intoxicated".

• "Mr Tutchell has, on a number of occasions, undergone treatment for his proclivity for sexual offending though it is less clear that these have been specifically targeted at his treatment need or that he has the intellectual capacity to use these strategies to reduce offending. He has clear deficits in victim empathy and understanding of children's sexuality, which should be treatment goals to remedy. Mr Tutchell reports ongoing deviant sexual arousal to paedophilic imagery, and although he reports a diminution in function induced by medication it is quite clear that he maintains paedophilic interests and these are arousing to him".

• "I disagree with the negative assessment of Dr Senadipathy and I am firmly of the opinion that he should undergo further sex offender treatment although I believe that this should be individually focused, based upon an individual treatment plan, and most importantly targeted at his intellectual strengths with an understanding of his limitations. This may require an in depth neuropsychological assessment to determine his best learning methods. Mr Tutchell's participation in the SOP was some time ago and I believe that it has evolved into a more comprehensive and goal-focussed program. He appears relatively motivated".

• "Mr Tutchell has been maintained on medication for several years although his continuing offending indicates that it has not been entirely effective in reducing his sexual urges or potential for sexual functioning. I would recommend the continuation of treatment and strongly recommend that any future release into the community is accompanied by a marked escalation in the dosage of his treatment accompanied by regular monitoring of serum testosterone to determine whether or not this is thoroughly suppressed. Anti-androgen medication has the potential to reduce testosterone and consequently sexual drive. It has a number of side effects which might it render it not possible to be used on Mr Tutchell in the future, but such a determination would be made closer to his time of release and no doubt through a report to the Adult Parole Board. In the past, his medication has been prescribed by Dr Glaser, based at Statewide Forensic Services, which ministers to the needs of intellectual disabled offenders. Dr Glaser is very experienced in using anti-androgen medication, and on any community release this should be an integral element to treatment, assuming that there are no strong medical contra-indications to prescribing".

• "I am concerned that despite a self confessed propensity for significant alcohol abuse, Mr Tutchell has not apparently undergone treatment for alcohol dependence. He should be offered drug and alcohol counselling. In addition I would think carefully in the future about the use of medication to constrain his propensity to drinking alcohol".

• "Assessment of his future risk of offending indicates that he is at high risk both historically, through his own account, and with reference to dynamic factors such as judgment, intoxication and temptation. With advancing age, overall risk is likely to diminish, but this would be contingent upon the treatments which are able to be offered while he is in custody and the provision of future care, treatments which are able to be offered while he is in custody and the provision of future care, treatment and supervision which might enable him to live in the community without posing a risk to others".

71 What sentence, then, should be passed? I should note immediately that, faced with Dr Sullivan's report, counsel for the appellant conceded, if the Court found that the offence was as I have described it at [29], that it would find beyond reasonable doubt that the danger posed by his client to the community would not be met sufficiently by a proportionate sentence. He submitted, however, that the imposition of a disproportionate sentence remained a sentence for a particular crime, though mediated by a court's conclusion that a proportionate sentence would not sufficiently protect the community from the offender. Such a sentence, he submitted, was not to be confused with an indeterminate sentence.

72 In my opinion, counsel's submission was correct. What the Court must do, if s.6D is called into play, is to sentence the convicted person for the particular offence upon orthodox principles, but taking into account the primacy given by s.6D(a) to a particular sentencing consideration. Orthodox principles, so modified, are still in point if s.6D(b) becomes relevant.

73 In the present case, for reasons which I have given earlier, the jury verdict must be taken to reveal a rape which lacked many of the aggravating factors that very often attend the crime of rape. Then there must be brought to account, as factors going in favour of a more substantial sentence, the statutory dictate to treat protection of the community as the principal sentencing purpose; whilst the prospect of rehabilitation should, I think, be considered very low. But then, on the other side of the ledger, it could be argued, in the appellant's favour, that -

• First, there have been no offences against children[10] since 1989.

• Second, a number of the offences involved private acts by consenting adults.

• Third, some of the offences apparently occurred when the appellant was made a plaything by others.

• Fourth, a number of the offences seem to have been grounded in the appellant's erroneous belief that he was establishing a relationship with the victim.

• Fifth, gratuitous violence has never been a feature of the appellant's offending.

• Sixth, there does seem to have been some lessening in the rate of the appellant's offending in more recent years.

74 All in all, I consider that, giving s.6D(a) full weight, a sentence proportionate to the offence could not reasonably exceed seven or eight years. But would imprisonment for such a period achieve the purpose of protecting the community from the appellant, and, if not, what should be done?

75 In my opinion it is established beyond reasonable doubt[11] that, for so long as he is physically capable of doing so, the appellant is likely to go on offending, often enough against victims who, by reason of their age or mental capacity, are unable to protect themselves. That is established by the persistence of his sexual offending over many years despite the attempts of the law and medicine to prevent it_,_ the report recently provided by Dr Sullivan, and the 2005 opinion of Dr Senadipathy. The material compels a conclusion that the protection of the community requires the imposition of a sentence well beyond the period of a proportionate sentence - the outer limit of which I identified a few moments ago. Even Dr Sullivan's opinion that, with advancing age, the overall risk which the appellant poses is likely to diminish, was expressed in a conditional way. It is no answer to that serious risk - pertinent to protection of the community - to acknowledge that the appellant's offending is a product of physical or mental abnormality. That is cold comfort to a victim.

76 In the event, I consider that this is one of those cases - they are rightly considered rare - in which a disproportionate sentence should be passed upon the appellant. Because the appellant was in fact sentenced in such a way below, and in the absence of argument to the contrary, I approach the matter on the footing that the issue of his being subjected to a kind of double jeopardy does not arise.

77 As I intimated earlier, I would re-sentence the appellant to 12 years' imprisonment with a non-parole period of 9 years. The length of the head sentence which I propose has regard to the appellant's age and physical health in the context of the nature of the risk of further offending which I have identified. The relatively short period of possible parole - expressed as a proportion of the head sentence - which I propose reflects my conclusion that prospects for the appellant's rehabilitation are poor - whilst recognizing the possibility that future treatment, the passage of time simpliciter, or the state of the appellant's physical health, may justify a conclusion that his controlled release into the community could be justified.

78 I agree with Ashley, JA.

- - -

[1] cf. Ibbs v The Queen [1987] HCA 46; (1987) 163 C.L.R. 447 at 452.

[2] R v Storey [1998] 1 VR 359 at 366 - 372 per Winneke P, Brooking and Hayne JJA and Southwell AJA. See also Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 13, [14] per Gleeson CJ, Gummow and Hayne JJ, and the discussion in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at 635-638, [17]-[24] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[3] Ibid at 11-14, [9]-[17].

[4] See the relevant definitions in s.6B of the Act, and the factors described in s.6C(1).

[5] [2005] VSCA 287 at [12]-[13] per Buchanan JA, Eames and Nettle JJA agreeing.

[6] See in R v Barnes [2003] VSCA 156 at [21] per Callaway JA, Buchanan and Eames JJA agreeing.

[7] In 1974, the order was that he be detained in a Youth Training Centre.

[8] The appellant also has a limited history of offending in other ways, which I do not take to be of present relevance.

[9] Court of Criminal Appeal (Starke, Anderson and Fullagar JJ), 6 February 1980, unreported. Starke J was referring to a submission by counsel, but did not suggest that it was inaccurate.

[10] Although the loitering offence might be regarded as having that connotation.

[11] This was the test suggested by Buchanan JA in Prowse.