R v Vella [2001] VSCA 174

Court of Appeal (Vic)|2001-10-11|Before: CALLAWAY and BUCHANAN, JJ.A. and O'BRYAN, A.J.A.

Criminal law - Sentencing - Sexual offences - Verdicts of guilty on alternative counts - Sentences imposed for original counts or variant thereof - Sentences as pronounced incorrectly recorded on presentment and quadruplicate - Relevance of conviction on all counts in additional presentment.

The appellant is now 71 years of age. He was born in Malta and migrated to Australia in 1950. The appellant left school at the age of 13 years. He is illiterate. The appellant worked on the Melbourne waterfront for 18 years until 1970 when he suffered spinal injuries as a result of an accident at work. He has not worked since the accident. The only activities in which he appears to have engaged in the last thirty years have been fishing and gardening. The appellant married and has four children.

Between October 1974 and March 1983 the appellant indecently assaulted or committed acts of gross indecency with two girls and a boy. None of the children had reached their teens when the offences occurred. The victims were all children of friends of the appellant and his wife, part of a community of Maltese migrants. The friends trusted the appellant with their children. For their part the children treated the appellant as a family friend. They called him "Uncle Jerry".

The appellant underwent two trials, one concerned with the offences against one of the girls, the other with the offences against the boy. At the conclusion of the second trial the appellant pleaded guilty to a third presentment containing ten counts relating to the second girl.

In the first trial the presentment contained four counts of gross indecency with a girl under the age of 16 years (counts 1, 4, 6 and 7), three counts of indecent assault (counts 2, 3 and 8), one count of taking part in an act of sexual penetration with a child under the age of ten years (count 5) and one count of attempting to take part in an act of sexual penetration with a child under the age of ten years (count 9). The girl was nine years old when the offences occurred.

6 The evidence led in respect of these counts was as to events that took place in Sunshine where the victim's family and the appellant were neighbours. According to the girl's evidence, on an occasion when she was alone with the appellant in his house he touched his penis over his clothing, put his hand under her dress and moved it up to her genital area, touching her vagina over her underpants. He then took his penis out and began to masturbate. Soon afterwards similar events occurred, also at the appellant's house. The appellant touched the girl's vagina under her dress, but over her underpants, and at the same time masturbated. He told the girl to kneel down and face him. He put his penis against her mouth and continued to masturbate. He then walked with her to the toilet where he masturbated in her presence and ejaculated. The count of sexual penetration alleged that the appellant placed his penis in the girl's mouth, but the jury convicted the appellant of the alternative offence of indecent assault (count 5A). The third series of events involving the girl occurred again at the appellant's house, this time in his bedroom. The appellant commenced to masturbate. He put his hand under the girl's clothing and touched her vagina over her underpants. He then pulled her underpants down and touched her directly on the vagina. The girl described repeated but unsuccessful attempts by the appellant to penetrate her vagina with his penis. That conduct was alleged to be attempting to take part in an act of sexual penetration, but again the jury convicted the appellant on the alternative count of indecent assault (count 9A).

The offences against the boy, the subject matter of the second presentment, occurred when the boy was between the ages of five and eight years. There were four counts of indecent assault (counts 2, 3, 5 and 9), three counts of gross indecency (counts 1, 4 and 7) and two counts of taking part in an act of sexual penetration with a child under 10 years of age (counts 6 and 8).

The boy's family lived near the appellant, and their families commonly holidayed together at a caravan park. Soon after the boy's fifth birthday the appellant requested him to enter a motor car at the caravan park. The boy saw that the appellant's penis was outside his clothing and erect. The appellant was masturbating. The appellant began playing with the boy's penis, placed the boy`s hand upon his own penis, making him assist him in masturbating, and finally began to suck the boy's penis while he continued to masturbate. Similar incidents occurred when the boy was aged seven years and eight years. The second jury found the appellant guilty of all the counts on the second presentment.

The appellant pleaded guilty to the counts in the third presentment after it was ordered that one count (count 5) be deleted. The counts concerned the second girl, the older sister of the first girl. The offences occurred when she was between the ages of nine and eleven years. There were six counts of indecent assault (counts 2, 3, 4, 7, 8 and 10) and four counts of gross indecency (counts 1, 6, 9 and 11).

The girl's evidence was that the appellant arrived at her house when her parents were away, took her to a bedroom, laid her down on her back and removed her underpants. He lowered his own pants and underpants and commenced to masturbate himself and fondled her breasts. He climbed on to the bed over her and pushed his erect penis into her mouth. When she tried to move her head, he held it so that she could not. He ejaculated in her mouth and down the front of her upper body. A year or two later the girl received her first communion. After the ceremony her parents held a small party at her house, which the appellant attended. During the meal he touched the girl under the table and under her dress. He asked her to go to his nearby house as he had a present for her. She accompanied the appellant to his yard, where he placed his hand under her dress and fondled her vagina. He then commenced to masturbate and put his erect penis into her mouth and moved it in and out. He ejaculated on the grass. On the third occasion the girl visited the appellant's house on an occasion when he was alone. The appellant took the girl to his bedroom and removed her clothing. He took off his own clothes and fondled the girl's bare breasts and masturbated. The last incident occurred at a caravan park at which the families of the appellant and the girl had holiday huts. In the laundry of the caravan park the appellant lifted the girl onto a bench and fondled her breasts. He then undid his zip and masturbated.

The judge sentenced the appellant to a term of one year's imprisonment on each of 10 counts of indecent assault. He imposed sentences of three and four years' imprisonment on each of the indecent assault counts which were alternative counts to penetration and attempted penetration and three years' imprisonment on each of the two counts of sexual penetration of the boy. The appellant was sentenced to a term of two-and-a-half years' imprisonment in respect of the charge of indecent assault against the boy when he was five years old and to the same term in respect of the indecent assault upon the older girl constituted by placing his erect penis in her mouth, moving it in and out of her mouth, and ejaculating on the grass. The appellant was sentenced to a term of three years' imprisonment in respect of the charge of indecent assault constituted by the appellant pushing his penis into the mouth of the elder girl and ejaculating in her mouth. The sentencing judge imposed a term of one year's imprisonment in respect of each of the 11 counts of gross indecency. The total effective sentence in respect of the younger girl was five years' imprisonment. Using this sentence as a base, the sentencing judge cumulated two years of the total effective sentence for the offences against the older girl and two-and-a-half years of the total effective sentence for the offences against the boy to produce an overall term of nine years and six months' imprisonment. A term of five years' imprisonment was fixed before the appellant was to be eligible for parole.

There are general grounds of appeal which complain that the sentence is manifestly excessive and that the sentencing judge failed to give any or sufficient weight to a number of factors. It is not necessary to determine those grounds for there are three specific errors, at least one of which in my opinion vitiates the sentence.

The first error is that in his sentencing remarks the judge said that he was sentencing the appellant for the counts of penetration and attempted penetration of the younger girl, whereas the jury returned verdicts of guilty of alternative charges of indecent assault. The maximum sentence for indecent assault was five years' imprisonment while the maximum sentences for penetration and attempted penetration were 20 years' imprisonment and 10 years' imprisonment respectively. The sentences imposed in respect of both alternative counts were much heavier than the sentences imposed in respect of other indecent assaults. To his credit in his report to this Court the sentencing judge said:

"... the imposition of sentences on offences in respect of which not guilty verdicts were returned constitutes a most serious sentencing error."

The second error, which would not appear to be an error which affected the exercise of his Honour's discretion, is that he pronounced a sentence of one year's imprisonment on one count of indecent assault in the course of his sentencing remarks, while a term of two years' imprisonment was recorded on the presentment and quadruplicate.

Finally, at the conclusion of the second trial, and in anticipation that the third trial would commence on the following day, the following exchange took place between counsel and the judge:

"HIS HONOUR: A further verdict is not going to make that much difference in practical terms. I mean, the fact is I am going to have to sentence him now on a lot of counts and I, without putting anything in concrete, it is probably not going to make that much difference as to what course, even if he was acquitted of the remaining counts. COUNSEL: Your Honour - - - HIS HONOUR: He is facing quite a large number of serious offences and there are practical limits, because of his age, etc. COUNSEL: Your Honour, in a hypothetical case involving three trials, irrespective of whether, for example, a third trial reached finality by way of verdict of guilty or plea, I would be urging upon a court substantial, if not total concurrency in respect of the third set of offences, so I understand what Your Honour is saying. HIS HONOUR: Yes; I can't put it in such an absolute way, but the practical consequences are probably not significant. The outcome of the third trial is probably not that significant in terms of the practical consequences for your client."

If the judge was still of the same mind when he sentenced the appellant, he was proceeding on an incorrect basis, for the overall criminality of the appellant's conduct must have been affected by his conviction on all of the counts in the third presentment.

For the foregoing reasons in my view counsel for the respondent correctly conceded that the sentencing discretion has been re-opened.

The offences committed by the appellant were grave. He preyed upon children, one as young as five years of age, whose parents were his friends and who trusted him with them. The law must protect young persons from sexual abuse by adults and punish those who violate them. It is exploitation in its most gross form. The child is both physically and psychologically subordinated to the desires of the adult. The victim impact statements disclose that the appellant's predatory behaviour seriously affected each of the victim's childhood and ability to form relationships in adulthood.

On the other hand, there are circumstances personal to the appellant which should moderate the sentence which otherwise might be imposed. Not the least of these is the appellant's age, which renders special deterrence of less relevance and adds weight to any sentence in that the period of imprisonment will represent a larger proportion of the appellant's remaining life expectancy than the same period imposed upon a younger man. The appellant pleaded guilty to the counts on the third presentment, and is entitled to a discount for saving the time and expense of a trial and the hardship that a trial would have inflicted upon the complainant. The plea, however, was made at a very late stage, and is not to be treated as evidence of remorse, for it would appear that the appellant continues to deny any wrongdoing. The appellant has difficulty in relating to strangers. According to a report by a forensic psychologist, he was "functioning at a very low intellectual and a very low inter-personal level". Imprisonment is more likely to weigh heavily upon such a man.

I would propose that in respect of the counts in the first presentment charging offences against the younger girl the appellant be sentenced to a term of one year's imprisonment on count 1, gross indecency, to a term of one year's imprisonment on count 2, indecent assault, to a term of one year's imprisonment on count 3, indecent assault, to a term of one year's imprisonment on count 4, gross indecency, to a term of two years' imprisonment on count 5A, indecent assault, to a term of one year's imprisonment on count 6, gross indecency, to a term of one year's imprisonment on count 7, gross indecency, to a term of one year's imprisonment on count 8, indecent assault, and to a term of two years and six months' imprisonment on count 9A, indecent assault. I would cumulate one year of the sentence on count 5A upon the sentence on count 9A, making a total effective sentence of three-and-a-half years' imprisonment.

In respect of the counts in the second presentment charging offences against the boy, I would sentence the appellant to a term of one year's imprisonment on count 1, gross indecency, to a term of one year's imprisonment on count 2, indecent assault, to a term of two-and-a-half years' imprisonment on count 3, indecent assault, to a term of one year's imprisonment on count 4, gross indecency, to a term of one year's imprisonment on count 5, indecent assault, to a term of three years' imprisonment on count 6, taking part in an act of sexual penetration with a child under the age of ten years, to a term of one year's imprisonment on count 7, gross indecency, to a term of three years' imprisonment on count 8, taking part in an act of sexual penetration with a child under the age of ten years, and to a term of one year's imprisonment on count 9, indecent assault. I would cumulate one year of the sentence on count 6 upon the sentence on count 8, making a total effective sentence of four years' imprisonment.

In respect of the counts in the third presentment involving offences against the younger girl, I would sentence the appellant to a term of one year's imprisonment on count 1, gross indecency, to a term of one year's imprisonment on count 2, indecent assault, to a term of three years' imprisonment on count 3, indecent

assault, to a term of one year's imprisonment on count 4, indecent assault, to a term of one year's imprisonment on count 6, gross indecency, to a term of 30 months' imprisonment on count 7, indecent assault, to a term of one year's imprisonment on count 8, indecent assault, to a term of one year's imprisonment on count 9, gross indecency, to a term of one year's imprisonment on count 10, indecent assault, and to a term of one year's imprisonment on count 11, gross indecency. I would cumulate one year of the sentence on count 7 upon the sentence on count 3, making a total effective sentence of four years' imprisonment.

I would order that 18 months of the total effective sentence imposed in respect of the counts in the first presentment and 18 months of the total effective sentence imposed in respect of the counts in the third presentment be served cumulatively upon each other and upon the total effective sentence of four years' imprisonment imposed in respect of the counts in the second presentment. The total effective term is one of seven years' imprisonment. I would fix a minimum term of four-and-a-half years before the appellant is to be eligible for parole.

After the conviction on count 2 of the first presentment the appellant was to be sentenced as a serious sexual offender within the meaning of s.6B of the Sentencing Act 1991 on all the remaining counts. The fact that the appellant has been sentenced as a serious sexual offender is to be entered in the records of the Court. Pursuant to s.6E of the Act I would direct that the individual sentences be served concurrently save to the extent to which I have ordered cumulation.

I have read in draft the judgment of Buchanan, J.A. I agree in the reasons of Buchanan, J.A. that the sentences proposed should be substituted for the sentences imposed by the trial judge. I would allow the appeal.

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