R v Vernon [2009] VSCA 204

3 The first three counts against the appellant were identical in terms and alleged that between 1 April and 31 May 2005 the appellant had digitally penetrated the complainant, who was under 16 years of age at that time. The fourth count alleged that the appellant had sexually penetrated the complainant by penile penetration between 1 and 31 May 2005, during which time the complainant had been under the appellant's care, supervision or authority. The maximum penalty applicable to Counts 1, 2 and 3 pursuant to s 45(2)(c) of the Crimes Act is ten years' imprisonment. The maximum penalty for Count 4 pursuant to s 45(2)(b) of the Crimes Act is 15 years' imprisonment.

4 On 2 November 2007 the appellant was sentenced to two years' imprisonment on each of the first three counts and to four years' imprisonment on Count 4. The sentencing judge ordered that 18 months of the sentence imposed on Count 3 be served concurrently with the sentence imposed on Count 4, and that six months of the sentences imposed on each of Counts 1 and 2 be served cumulatively on each other and upon the sentence imposed on Count 4.

5 Her Honour mistakenly said that this resulted in a total effective sentence of six years and six months. The appellant contends that the calculation in fact leads to a total effective sentence of five years and six months. The sentencing judge went on to direct that the appellant serve five years' imprisonment before he would become eligible for release on parole. Her Honour made declarations with respect to the nature of the offences under the Sex Offenders Registration Act, namely, that the appellant was a registrable offender who would be required to report for life. Leave to appeal was granted by Ashley JA on 14 November 2008 pursuant to s 582 of the Crimes Act.

6 At the time of the offences the appellant was aged between 26 and 27 and had no prior convictions. The complainant, the victim of the offending in all four counts, was eleven years old and turned twelve years over the course of the appellant's offending. During his record of interview in October 2005, the appellant conceded that he knew the complainant was twelve at the relevant time.

7 The appellant met the complainant through mutual friends of his and the complainant's parents and he became a frequent visitor to the complainant's house, where he would burn DVDs, assist with computer problems, and act as a sometime babysitter of the complainant and her siblings.

8 The offences the subject of the first three counts all took place at the complainant's house, either in her bedroom or as the complainant saw the appellant out. The offending the subject of the fourth count occurred when the appellant was baby sitting the complainant. The complainant gave evidence that the appellant had sex with her in her bedroom and that the pair of them subsequently went to a 'McDonald's' outlet.

9 As a result of the offending forming the basis of the fourth count, the complainant fell pregnant. Teachers at the complainant's school, in which she was then in Grade 6, became suspicious of her behaviour and physique and alerted the complainant's mother of their suspicions. A home pregnancy test was administered by the complainant's mother and pregnancy was confirmed. Subsequently the complainant gave birth to a daughter when herself aged twelve. The infant now resides with the complainant and her family. DNA testing confirmed that the appellant was the father of the child. However, the sentencing judge noted that the appellant had agreed to plead guilty prior to the availability of DNA test results indicating his paternity.

10 In the course of the plea, counsel for the Crown submitted that Count 4 was a representative count which represented one previous act of sexual intercourse with the complainant where she was in his care, and therefore the sentencing judge should sentence on the basis of the act complained of 'taken in the context, that is, not an isolated or one-off event, that it had happened before, and that's to be contrasted with the stand-alone count on the one hand or a rolled-up count on the other hand'.

11 During his record of interview the appellant had denied having sexual intercourse with the complainant on more than one occasion. However, in the course of the plea counsel for the Crown argued that when asked whether condoms had been used the appellant had answered, 'Not the first time we didn't.' No issue was taken by counsel for the appellant with the Crown's submission as to how Count 4 should be viewed.

12 Two grounds of appeal were argued. The first ground was that the sentence imposed was manifestly excessive in all the circumstances, and the second ground was that the sentencing judge erred in imposing a non-parole period of five years on a total effective sentence of six and a half years. I will consider each ground in turn.

(i) the sentencing judge erred in directions for concurrency or cumulation in respect of the sentence on Count 3 and/or in her calculation of the total effective sentence; or

(ii) in the extent of the (effective) order for cumulation of the sentence on Count 3, the total effective sentence and non-parole period, in that each is manifestly excessive.

14 Counsel for the appellant pointed out that in sentencing, her Honour used different language in her delivery of the sentence to the court than the language used on the presentment itself and on the Return of Prisoners Convicted form. In sentencing in the court, her Honour stated:

Six months of each of Counts 1 and 2 is to cumulate on Count 4. Eighteen months of Count 3 is to be concurrent with Count 4, which makes a total effective sentence of six and a half years, and I fix a minimum of five years before you are eligible for parole.

The presentment and Return of Prisoners Convicted form, however, each noted that on Count 3 the appellant was convicted and sentenced to two years' imprisonment, of which six months was to be served concurrently with the sentence imposed on Count 4.

15 Clearly the two different dispositions of Count 3 resulted in different total effective sentences.

16 Counsel for the appellant submitted that her Honour was likely to have intended the level of concurrency she announced in court, as such an order is consistent with her Honour's orders as to cumulation on Counts 1 and 2. I doubt that follows. In my view, a total effective sentence of six and a half years was intended. This was evidenced by the period of imprisonment she fixed as the non-parole period of five years.

17 It was further submitted that in the event that her Honour did intend that only six months of Count 3 was to be served concurrently with Count 4, her Honour erred in doing so in that each of the first three counts involved digital penetration and there was nothing to distinguish between these three counts. Whilst the appellant fell to be sentenced as a serious sexual offender on Counts 3 and 4 pursuant to s 6B of the Sentencing Act, this factor could not explain the vast difference between the sentences imposed on Counts 1 and 2 as compared with Count 3. There was considerable merit in that submission.

18 In pursuing this ground, counsel for the appellant finally submitted that the total six and a half year sentence was manifestly excessive in view of the numerous mitigating factors, namely:

(a) the limited number of episodes and period of offending;

(b) the appellant's confession prior to the availability of DNA evidence;

(c) the appellant's early pleas of guilty and remorse;

(d) the appellant's immaturity and the fact that he was affected by ADHD at the time of the offending;

(e) the delay between the offending and the sentence;

(f) the rehabilitation achieved by the appellant during the delay;

(g) the judge's finding as to a reduced need for specific deterrence;

(h) the particular hardship to the appellant of imprisonment; and

(i) the absence of any prior or subsequent convictions.

19 Counsel for the respondent submitted that the individual sentences imposed for each count of digital penetration were well within the range open to the sentencing judge and he highlighted that these offences involved a significant breach of trust. In relation to Count 4, the respondent, in his written submissions, submitted that a sentence of four years was in fact manifestly inadequate, the circumstances of that offending placing it in the middle to upper end of the range. Before us, counsel for the Director appropriately abandoned the submission that the sentence was manifestly inadequate.

20 I would not accept the submission that this offending lay at the upper end of the range.

21 In relation to the difference between the sentences imposed on Counts 1 and 2 as compared with Count 3, counsel for the respondent suggested that the only explanation was that on Count 3 the appellant fell to be sentenced as a serious sexual offender and therefore the common law presumption as to concurrency was reversed pursuant to s 6E of the Sentencing Act.

22 In conclusion, counsel for the respondent submitted that a total effective sentence of six and a half years was well within the range and was unimpeachable.

23 The second ground advanced by counsel for the appellant was that the sentencing judge erred in imposing a non-parole period of five years, particularly in view of the mitigating factors, the submissions of both prosecution and defence on the plea for a shorter than usual non-parole period, and the absence of reasons for the non-parole period that her Honour fixed. Indeed, the transcript reveals that on the plea, defence counsel submitted that a shorter non-parole period than would usually be sought was appropriate, taking into account all the matters put. In response, the prosecutor made the following remarks to the sentencing judge:

The prosecution doesn't quarrel with the sentencing position advanced by [the defence], that this is a case where Your Honour could justifiably impose a longer than usual period on parole so that he's supervised and continues his rehabilitation when he's released.

24 Counsel for the appellant before us calculated that the non-parole period imposed by her Honour represented 77 percent of the total effective sentence and submitted that this should be regarded as relevantly high, rather than shorter than usual.

25 Counsel for the appellant referred us to a number of authorities demonstrating that this Court has previously found error in fixing non-parole periods of similarly high proportion in similar circumstances. Counsel for the appellant referred us particularly to R v VZ,[1] in which the applicant was convicted on two counts of incest and was sentenced to five years' imprisonment on one count and seven years' imprisonment on the other. The sentencing judge made orders for cumulation such that the total effective sentence to be served was eight years' imprisonment. His Honour further fixed a non-parole period of six-and-a-half years without providing any reason for fixing such period. The appeal was allowed and the offender re-sentenced. Callaway JA made the following remarks in his judgment:

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... but the 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 course of the plea.

26 We were also referred to R v Crozier,[2] another decision of this Court, in which the appellant pleaded guilty to numerous charges relevantly including four counts of committing an indecent act with a child under the age of 16, two counts of incest and seven counts of sexual penetration of a child under 16. The sentencing judge imposed a total effective sentence of nine years' imprisonment on the appellant and fixed a non-parole period of seven years and six months. Counsel for the appellant argued that the head sentence, non-parole period and individual sentences imposed were manifestly excessive, a ground which ultimately failed. However, Vincent JA, with whom Charles and Ashley JJA agreed, allowed the appeal on the basis that the sentencing judge erred in imposing the non-parole period that she did. Vincent JA noted:

A non-parole period of seven years and six months in relation to a total effective sentence of nine years, without any explanation or the presence of circumstances which would justify such a limited opportunity for release on parole, is the subject of legitimate concern, in my view. I have already referred to a number of matters which might have been expected to result in the fixing of a lower non-parole period in that case.

27 Counsel for the respondent, in his written submissions, in this appeal conceded that:

Absent some explanation by the learned sentencing judge, a non-parole period of five years invites scrutiny. The proportion between head sentence and non-parole period does not instinctively look like a Victorian non-parole period.

28 In the circumstances, given that her Honour's sentences on the individual counts and orders for cumulation did not produce the total effective sentence she announced, sentencing error has been established and requires the appellant to be re-sentenced. In my opinion, the sentencing judge intended that the total effective sentence to be imposed on the appellant be six and a half years. I would propose that this Court now impose sentences on the appellant for each count which would give effect to that intention. In my opinion, the sentences imposed on each count were appropriate, notwithstanding the mitigatory material that was presented on the appellant's behalf. The offences occurred over a two month period and, importantly, the effect of the last count was the conception and birth of a child, which, as her Honour noted, will be a permanent reminder of this traumatic incident. In addition to that, Count 4 was a representative count being representative of one previous act of sexual intercourse when the complainant was in the appellant's care. Thus, the appellant was not, and is not, to be sentenced on the basis that Count 4 was an isolated offence. Rather, the fact that it was a representative count 'affirmatively enables the offence to be seen in its full circumstantial context'.[3]

29 However, I am persuaded by the submissions of counsel for the appellant that in the circumstances of this case a non-parole period of less than five years should be fixed. There were, as I have already enumerated, a list of factors which pointed to a good prospect of rehabilitation on the part of the appellant, as well as other significant matters of mitigation. In his submissions in reply before the sentencing judge, the prosecutor accepted there was merit in the submission on behalf of the appellant that a longer than usual period of parole could be imposed in order that he could be supervised and continue his rehabilitation. As I have already indicated, counsel for the respondent before us did not adopt a position inconsistent with that. I would therefore propose that the appellant be re-sentenced as follows: on Count 1, two years' imprisonment; on Count 2, two years' imprisonment; on Count 3, two years and six months' imprisonment; on Count 4, four years' imprisonment. For Counts 3 and 4 the appellant would be sentenced as a serious sexual offender. Count 4 is the base sentence. I would order that nine months of the sentences on Counts 1 and 2 and twelve months of the sentence on Count 3 be served cumulatively with Count 4 and with each other, resulting in a total effective sentence of six and a half years. I would order that the appellant serve four years' imprisonment before becoming eligible for release on parole.

(2) The sentences imposed on the appellant on 2 November 2007 are quashed. In lieu thereof the appellant is re-sentenced as follows:

(3) With Count 4 as the base sentence, nine months of the sentences imposed on Counts 1 and 2 and twelve months of the sentence imposed on Count 3 are to be served cumulatively with each other and with Count 4, amounting to a total effective sentence of six years six months.

(4) The appellant shall serve four years' imprisonment before becoming eligible for parole.

(5) All other ancillary orders made on 2 November 2007 are confirmed.

It is declared that the appellant was sentenced as a serious sexual offender on Counts 3 and 4.

It is declared that the period of 716 days, including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

[1] [1998] VSCA 32; (1998) 7 VR 693, 697.

[2] [2005] VSCA 188, [22].

[3] See R v SBL [1998] VSCA 144; [1999] 1 VR 706, (Batt JA).