R v V Z [1998] VSCA 32

19. The complainant was born on 2nd April 1962. Her mother married the applicant, probably in August 1964 but possibly in 1963. The 11 counts on the presentment comprise one count of carnal knowledge of a girl under the age of 10, two counts of indecent assault, one count of attempted buggery, one count of buggery and six counts of incest. I shall refer only to the circumstances of the two offences on which the applicant was convicted, but it should be borne in mind that the complainant gave evidence at the trial of uncharged acts in addition to her evidence in relation to the specific offences that were alleged. The uncharged conduct was taken into account by the learned judge as establishing that the two offences for which the applicant stood to be sentenced were not isolated acts. It was conceded on the plea that there had been "an incestuous relationship", a choice of words that should not be thought to imply any fault or complicity on the part of the complainant.

22. Count 7 charged an act of incest in 1977. The complainant gave evidence that in that year she became pregnant by the applicant and gave birth to a son in March 1978. She said that she was not having sexual intercourse with any other male at the time of conception and DNA testing suggested that the applicant may have been the child's father. Count 8 charged an act of incest in 1978. The complainant said that in January 1979 the applicant took her to a doctor and she discovered that she was pregnant again. There was evidence that the applicant assumed that he was the father of the child, a girl who was born in August of that year. DNA evidence confirmed that the applicant may have been the father. It was accepted on the plea, and the learned judge sentenced the applicant on the footing, that each pregnancy was indeed the result of the relevant offence.

25. Mr. Galbally, Q.C, who appeared for the applicant, argued first that the sentence was manifestly excessive. He submitted that the learned judge had failed to give any, or sufficient, weight to the applicant's age, health and good character. His Honour referred to all three factors in the course of his sentencing remarks. In relation to the second he said:

"You are not in good health. Your bowel cancer appears to have been successfully removed, although your prognosis may be uncertain. You have diabetes and you suffer from back pain and arthritis. You are unfit for work at present and you are physically older than your age. Your heart condition has also caused some concern. However, I do not agree with the submission of your counsel that your life expectancy should be viewed as such as to make appropriate a lesser term of imprisonment than might otherwise be imposed."

Reference was then made to a bundle of medical reports that had been tendered.

30. Counsel had submitted on the plea that, in the case of offences committed 18 and 19 years ago, the person being sentenced was a different person and in a different position and had less ability to cope with the rigours of a custodial sentence than he would have had at an earlier age; but, so far as the applicant's health was concerned, counsel's emphasis was on the diminution of the applicant's life expectancy rather than on his ill-health making service of a prison sentence more rigorous. She probably regarded the last proposition as self-evident, for his Honour would be well aware of it. It is undoubtedly one of the reasons why he took the trouble to refer as he did to the applicant's medical condition in the course of his sentencing remarks. It was not contended that the further evidence sought to be adduced before this Court affected the applicant's life expectancy. Its purpose was to prove his current state of health and the fact that he had required further surgery.

33. Mr. Galbally submitted that the individual sentences and the total effective sentence were manifestly excessive on their face but that, even if they were within the range, the non-parole period was not. The learned judge gave no reason for fixing a non-parole period of six-and-a-half years and counsel understandably reminded us of what I had said, with the concurrence of Winneke, P. and Brooking, J.A., in R. v. Bernath [1997] 1 V.R. 271 at p.278. Whilst not conceding that the non-parole period disclosed error, Mr. McArdle agreed that it was unusual, at least as a matter of impression. That concession was, in my opinion, both justified and necessary: cf. R. v. Bolton and Barker [1998] 1 V.R. 692 at p.699 and the cases there mentioned.

36. Turning to totality, Mr. Galbally submitted that the total effective sentence went well beyond a sentence reflecting the overall criminality of the two offences. It was also submitted that his Honour had visited each offence with too severe a punishment. In particular, it was said, a sentence of five years' imprisonment could not properly have been imposed on count 7 if the applicant had been convicted on that count alone shortly after the commission of the offence. I do not accept those submissions. Each of the head sentences was within the range and some cumulation was almost inevitable. Compare R. v. O'Rourke [1997] 1 V.R. 246, not only for the statement of principle at p.253 but also for the orders that were made by the Court, and see R. v. Mantini (1997) 95 A.Crim.R. 33 at pp.41-44.

39. In R. v. Krasnov and Shlakht (1995) 82 A.Crim.R. 92 this Court reduced a sentence of 16 years' imprisonment with a non-parole period of 14 years to a sentence of 16 years' imprisonment with a non-parole period of 11 years. At p.99 the Court said:

"It is clear that the non-parole period of 14 years is longer than the period that might be fixed in other kinds of case in which a sentence of 16 years is imposed, and is in that sense unusual. Of itself that is not a sufficient basis upon which this Court should interfere with the exercise of the very wide discretion conferred on a sentencing judge. However, when a sentencing judge decides to impose a sentence which is in important respects unusual, one would generally expect to see stated reasons for taking that course, in much the same way as one would expect reasons to be given if no non-parole period was fixed. In the present case no specific reason was given for fixing such a comparatively long non-parole period. For our part we are unable to discern in the circumstances of this case any good reason for doing so. ... As we have said, the making of comparisons is difficult but in the end we are of the opinion that the non-parole period fixed is manifestly excessive." (Emphasis added.)

43. Similarly, in this case, no reason was given for fixing a non-parole period of six-and-a-half years. That does not inevitably betoken error, as the passage from Bernath's Case to which I have already referred makes clear, but a failure to give reasons invites scrutiny if the non-parole period is unusual either by comparison with other cases or having regard to the facts of the instant case or the course of the plea. The point is illustrated by the two sentences that I have italicised in the passage quoted above. Unassisted by any specific reason proffered by the judge, the Court looked at the circumstances of the case for itself in order to discern whether there was a good reason for a non-parole period of 14 years.

46. In looking at the facts for itself the Court is to be guided by principle. In particular, the High Court has repeatedly affirmed that the purpose of fixing a non-parole period is -

"to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."

See Power v. R. [1974] HCA 26; (1974) 131 C.L.R. 623 at p.629; Deakin v. R. [1984] HCA 31; (1984) 58 A.L.J.R. 367 and Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at pp.531, 536 and 538. It is the public interest that is primarily to be served by what Winneke, P. called in R. v. Mulvale (unreported, Court of Appeal, 20th February 1996) at p.11:

"discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision."

See also the judgment of Batt, J.A. in R. v. Sener (shortly to be reported, Court of Appeal, 22nd May 1997) at pp.5-8.

53. I put to one side cases where a non-parole period is inappropriate. In other cases, it is apparent from the authorities to which I have just referred that a non-parole period cannot be fixed unthinkingly by some such method as taking two years, or one third or one quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element: see, for example, Bugmy v. R. at p.538 and R. v. Chan (1994) 76 A.Crim.R. 252 at p.255. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period: see, for example, Power v. R. at p.628 and Director of Public Prosecutions v. Bulfin (unreported, Court of Appeal, 17th April 1998). The third, which requires no citation of authority, is that a prisoner's prospects of rehabilitation are almost always a significant consideration. The present offences called for condign punishment and general deterrence was a relevant sentencing objective, but it was common ground, and his Honour found, that the applicant was unlikely to offend again. He added that no question of specific deterrence arose for consideration. The offences had first come to light in 1981 but the evidence at that stage was insufficient to warrant a prosecution. That may explain why the applicant had not re-offended but it did not detract objectively from his prospects of rehabilitation. Assuming that a head sentence of eight years' imprisonment was appropriate, I consider that a non-parole period of six-and-a-half years was manifestly excessive in all the circumstances of this case.

56. That conclusion means that the discretion is re-opened and it falls to this Court to re-sentence the applicant: see R. v. Sener at pp.7 and 9-11. In that context I refer to the affidavit sworn by the applicant's solicitor and the exhibits thereto. They show that, whilst the applicant was on remand, he contracted pneumonia and had episodes of dizziness. The latter were related to a cardiac anomaly but no treatment was advised. More importantly, a recurrence of the rectal carcinoma for which he had undergone a bowel resection in 1996 was detected in February this year. The applicant underwent a five-week course of chemo-radiotherapy, which he completed on 11th April 1998, but a further resection was required a month later. It was accompanied by the construction of an ileostomy, which is likely to be able to be closed in about four months' time. The applicant recovered well and was ambulatory and self-caring when he was discharged from St. Vincent's Hospital on 24th May 1998.

59. The judgments of the other members of the Court indicate the seriousness of the two offences of which the applicant was convicted. These were not isolated acts of incest. They involved the exploitation of the applicant's step-daughter, resulting in pregnancy on two occasions. The material on the plea showed that the complainant had been severely traumatized. The applicant, who pleaded not guilty, did not simply put the Crown to its proof. He gave evidence at the trial, in the course of which he stigmatized the complainant and other witnesses as liars who had colluded to give false evidence against him. He is entitled to no discount and has shown no remorse. Taking full account of the unlikelihood of his re-offending and his health as disclosed by the evidence, I consider that no different sentences should be passed or different direction for cumulation given. The total effective sentence

should therefore remain a sentence of eight years' imprisonment.

63. In a case such as this the non-parole period must not be such that the applicant is not justly punished for his criminal conduct and it must not undermine general deterrence or make the denunciatory effect of the head sentence a mockery: cf. Sentencing Act 1991, s.5. The purpose of a non-parole period being to provide for mitigation of punishment in favour of rehabilitation through conditional freedom, due weight must be given to the rehabilitation that the applicant has already achieved over the last 20 years. Cases such as R. v. Morgan (1996) 87 A.Crim.R. 104 show that it is proper also to take account of his state of health. (The fact that service of a term of imprisonment will bear more heavily on a person must be taken into account in determining the head sentence, for that sentence must be imposed on the footing that the prisoner may have to serve every day of it. Morgan's Case shows that ill-health may be taken into account again, and perhaps be given additional weight, in fixing a non-parole period.) Weighing up all these factors, I am conscious that there is no single correct answer. On balance I would propose that a non-parole period of five-and-a-half years be fixed.

68. Incest is regarded by Parliament, the courts and the community as a very grave crime. Even in 1977 and 1978, when the present offences were committed, the maximum penalty for the crime was imprisonment for 20 years, whilst that for manslaughter was imprisonment for 15 years. It is an abhorrent offence, striking at the root of the family relationship and usually (as here) involving breach of trust and dereliction of protective duties in the pursuit of perverted gratification or the exercise of power. Accordingly, the offence usually merits condign punishment, since general deterrence and denunciation of the offender's conduct will usually be important for sentencing purposes: R. v. Wakime [1997] 1 V.R. 242 at 244; R. v. C (1983) 10 A.Crim.R. 352 at 356. That is so even where the relationship between offender and victim is a step relationship, particularly when the victim is not adult and is under the offender's care and supervision: R. v. Boxhall (unreported, Court of Appeal, 3 July 1997).

71. Here the two offences were aggravated by the fact that each resulted in the victim's conceiving and giving birth to a child. His Honour was well entitled to regard the second offence as a very serious example of the crime and as of greater criminality than the first. There was, too, no plea of guilty or any remorse whatsoever to operate in mitigation of penalty.

74. His Honour was well aware of all the facts relating to the offences and to the applicant, whether favourable or unfavourable, that were relevant to the determination of the sentence. Included in those facts was the circumstance that, although a complaint was made and investigated in 1981, the applicant was not charged until many years later, after DNA analysis had become more powerful. Mr. David Galbally Q.C. for the applicant did not advance any argument to the effect that his Honour had overlooked or given insufficient weight to that fact. His argument was that the head sentences, the total effective sentence resulting from the direction for cumulation and the non-parole period were each manifestly excessive, particularly in the light of the applicant's age, his state of health (including the prognosis at the time of sentencing) and the fact that during the almost 20-year period since the commission of the offences the applicant had committed no other offence whatsoever. The applicant's poor health would, he submitted, make any term of imprisonment more burdensome for him than for a healthy person. His Honour, he submitted, had given, or must have given, insufficient weight to the considerations on which he relied. The question, then, is one of weight. I note that the applicant's health was not used before the sentencing judge in the way now relied on, but simply as bearing upon the applicant's life expectancy, the submission as to which his Honour in the facts disclosed rightly, in my view, rejected. But, even entertaining the submission now made, I am of the opinion for the reasons I have indicated in outline earlier that on the facts before his Honour the head sentences and the direction for cumulation, though stern, were quite within the range open to the sentencing judge. Nor, in my view, did they offend the principle of totality.

77. The non-parole period, however, stands, I think, in a different position. For the reasons given by Callaway, J.A. I am of opinion that it cannot be upheld and that the sentencing discretion is accordingly re-opened. I should perhaps state in my own words the essential reasons leading me to that conclusion. The non-parole period is the period which justice requires that a prisoner must serve having regard to all the circumstances of his offence before there can be mitigation of punishment in favour of his rehabilitation through conditional freedom: Power v. The Queen [1974] HCA 26; (1974) 131 C.L.R. 623; Deacon v. The Queen [1984] HCA 31; (1984) 58 A.L.J.R. 367; Bugmy v. The Queen [1990] HCA 18; (1990) 169 C.L.R. 525 at 536. No mechanistic or formulaic approach is, in my view, to be taken to the fixing or reviewing of a non-parole period. But, in the face of his Honour's acceptance of the strong evidence that the applicant was unlikely to re-offend, the length of the non-parole period fixed here in respect of a total effective sentence of 8 years' imprisonment invites inquiry as to the reason or reasons for arriving at the period fixed. Unfortunately, the sentencing judge vouchsafed none. He was not bound to do so, and in many cases it will be obvious why a period outside the usual range, broadly defined, has been selected. But here, in the absence of reasons and in the face of the applicant's rehabilitation, achieved and prospective, no countervailing reason suggests itself to me. I am thus forced to conclude that the sentencing discretion miscarried and that a manifestly excessive non-parole period was fixed.

80. In the light of all the facts that were before the sentencing judge and those revealed by the affidavit of Paul Thomas Galbally sworn 11 August 1998, I agree also with the re-sentencing disposition which Callaway, J.A. proposes. Essentially, I would have imposed higher head sentences but for the evidence as to rehabilitation, the evidence showing that any custodial sentence will bear more harshly upon the applicant than it would if he were in better health and the evidence as to the time which, albeit for good reason, has elapsed since the first complaint was made. But that evidence leads me not to think, within s.568(4) of the Crimes Act 1958, that a different sentence should have been passed for either offence or a different direction for cumulation made. I do think, however, giving due weight to the applicant's rehabilitation, achieved and prospective, that a different non-parole period should have been fixed.