R v W D P [2005] VSCA 16

5. There were three victims of the applicant's offending; they were the three daughters of the applicant's partner (P.A.D.), and those children were S.R.D. (who was born on 23 October 1987); J.L.D. (born on 9 December 1989); and H.J.D. (born on 8 March 1991). P.A.D. had separated from her husband in 1995, and commenced a relationship with the applicant later in the same year. On 14 August 1996 P.A.D. and her three girls moved into the applicant's home in a country town near Shepparton. The offences to which the applicant pleaded guilty occurred between 14 October 1999 and 31 December 2000.

8. Following a plea on his behalf in mitigation of sentence made on 21 August 2003, the applicant was sentenced as follows:

Count 1 - indecent act with SRD: 18 months' imprisonment.

Count 2 - incest (oral penetration) with SRD: 3 years and 6 months'

Count 3 - indecent act with SRD: 2 years' imprisonment.

Count 4 - intentionally causing injury to SRD: 4 months' imprisonment.

Count 5 - indecent act with JLD: 2 years and 4 months' imprisonment.

Count 6 - incest (digital penetration of JLD's vagina): 4 years' imprisonment.

Count 7 - incest (lingual penetration of JLD's vagina): 4 years' imprisonment.

Count 8 - intentionally causing injury to JLD: 6 months' imprisonment.

Count 9 - recklessly causing injury to HJD, the youngest of the three girls:

22. His Honour cumulated two months of the sentences imposed on counts 4, 8 and 9; twelve months of the sentences imposed on counts 1, 3 and 5; and 15 months of the sentences imposed on counts 2 and 6 upon each other and upon the four-year sentence imposed on count 7. The total effective sentence was therefore one of 10 years' imprisonment. His Honour fixed a period of eight years' imprisonment as the period before which the applicant would not become entitled to parole.

25. On 22 August 2003 the applicant, by notice, sought leave to appeal against the sentences imposed upon the ground that they are manifestly excessive.

28. Following an application for leave before a single judge of this Court on 16 April 2004 pursuant to s.582 of the Crimes Act, the judge refused such leave. On 7 July 2004 the applicant - pursuant to Rule 2.09(2) of the Criminal Procedure Rules - elected to have the application determined by the Court of Appeal. Although his election was filed outside the time prescribed by the Rules, he requests the Court to accept it on the basis of grounds set out in his affidavit sworn 10 August 2004. Having considered the grounds identified, this Court has determined that his application should proceed notwithstanding the default.

31. It is necessary to rehearse briefly the details of the applicant's offending which were before his Honour. In March 1997 the victims' mother commenced a TAFE course in Bendigo which required her attendance on Mondays, Tuesdays and Thursdays of each week. At the time when she commenced this course the applicant was in full-time employment. However, in June 1998 the applicant contracted a disorder which caused him to cease work. He thus became the full-time carer of the children, who were then aged respectively approximately twelve, ten and nine years. The mother completed the TAFE course in September 1998. She herself was ill until February 1999, when she commenced to work at home as a dressmaker. On 2 December 1999 she commenced full-time employment in Shepparton.

34. His Honour noted in his sentencing remarks that the offence alleged in count 5 (the first offence alleged involving the child JLD) was accepted to be a "representative count" of "indecent act". As such, his Honour applied to it the principles expressed by Batt, J.A. in R. v. S.B.L.[1], where his Honour said:

"Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct which effect might not have been produced, or produced to the same extent, by the offences counted alone."

These remarks reflect the practice in this State as to the manner of sentencing adopted by judges in respect of counts which are agreed to be "representative".

39. The applicant's offending commenced in late 1999 when the eldest girl, SRD, was about twelve years of age. The offence in count 1 occurred in the child's bedroom shortly before the applicant took her to school. The applicant asked her whether she "wanted to play it rough" and when she professed that she did not know what he meant, he put towels on her bed and made her take her clothes off, before pushing her on to the bed. He pushed his erect penis backwards and forwards between her legs until he ejaculated on to the towels. He then made her have a shower before taking her to school. The offence described in count 2 occurred on the verandah of the premises not long after the previous offence. SRD said that - at the time - her mother was in the "sewing room" and the applicant took her from his "office" out on to an enclosed verandah where he pulled his penis from his trousers, pushed her head down and made her put her mouth around it. This, she said, "made her sick afterwards".

42. Count 3 involved the commission of an indecent act with SRD. It happened on the day of her aunt's wedding. She had come home early from school, and was lying down in her mother's room wearing just a crop-top and a pair of knickers. She said she was "half asleep" when the applicant came in, pulled down her knickers and licked her vagina for some ten minutes. The final count on the presentment involving SRD was count 4 - a count of "intentionally causing injury". The episode occurred when SRD attempted to intervene when an argument occurred between the applicant and HJD - the youngest girl. The applicant picked SRD up and threw her against the wall, injuring her leg.

45. Counts 5 to 8 inclusive involved the second child, JLD. The offence described by count 5 was, as I have previously said, a "representative count". JLD said there were three instances where the applicant told her to take hold of his penis and put it between her legs, where he pushed it "sort of along my crutch - along my vagina" until he ejaculated. Count 6 involved an act of digital penetration of JLD's vagina; whilst count 7 described an act of penetration with his tongue. That act of incest occurred in the bedroom of the applicant and the mother. He had tipped JLD on to the bed and pulled her pants down. Count 8 on the presentment was an act of intentionally causing injury to JLD. This was alleged to have occurred when JLD came home from school and told the applicant what her friends at school thought of him. He took her into the kitchen and hit her "continuously" across the face until she was bruised "from one side to the other". She missed a week of school because of the bruising.

48. The final count on the presentment (count 9) was a count involving the youngest child, HJD; a count of recklessly causing injury. On this occasion the applicant struck the child hard across her head and ear until she sustained what she called "a black ear". She described being continuously struck as the applicant "dragged her by the ear all around the house". She too was kept home from school.

51. His Honour - a very experienced County Court judge - described the corrosive effect which the acts of incest had caused to the two elder girls; their loss of confidence and emotional turmoil. His Honour described the crimes of incest committed against the two elder girls as "serious examples of a serious crime", involving as they did a gross breach of trust.

54. His Honour noted, as he was required to do, that, once the applicant had been sentenced on counts 1 and 2, he fell to be sentenced as a serious sexual offender on counts 3, 5, 6 and 7. However, his Honour said, he did not regard the need to protect the community as warranting the imposition of sentences disproportionate to the gravity of the offending described in those counts.

58. The application for leave is founded solely upon the ground that the sentences, including the total effective sentence and the non-parole period, are manifestly excessive. Mr Holdenson, who appeared with Mr Dann for the applicant, acknowledged that the applicant has the obligation of demonstrating to this Court that the sentences imposed are so manifestly unreasonable on their face that this Court should have no hesitation in setting them aside. In support of the contention he has referred to the applicant's guilty pleas, the judge's finding of some "genuine" remorse, the fact that the applicant is of "otherwise good character", having no prior convictions, rather a reputation for good work, honesty and reliability. It is further contended that the applicant could not be said to constitute a serious risk of re-offending. Counsel acknowledged that all of these sentencing factors had been accepted by the judge but, so it is contended, he had failed to give proper effect to them. In particular it was contended that the orders for cumulation which the judge made had offended the principle of totality, notwithstanding his expressed concern not to do so, and had led to a total effective sentence, and a non-parole period, which are manifestly excessive in the sense that they can be immediately discerned as beyond the available range. Mr Holdenson tendered to this Court a tabular breakdown of the impact of cumulation and submitted that the table demonstrates over-cumulation contrary to what his Honour had set out to do. Indeed, his Honour had expressed in the course of his judgment concern that he should not over-cumulate.

61. 16 Whilst I regard the sentence which his Honour imposed as stern, for my own part I am far from satisfied that it was, by virtue of excessive cumulation, beyond the range of sentences available for these very bad crimes. Incest, as this Court has so often said, is a very prevalent offence within the community and has become none the less so where estranged mothers of young children have placed their faith and trust in de facto husbands. Section 44(2) of the Crimes Act recognizes these circumstances and the Sentencing Act amendments of 1997 lifted the maximum penalty for this type of incest to 25 years. The crime is a particularly obnoxious one not only because of its innate repulsiveness but more importantly because of its insidious connotations of breach of trust of young people who are totally vulnerable to the predations of de facto partners.

64. All of these things have been said many times by this Court to justify the imposition of stern sentences which, like these, are influenced by principles of general deterrence and denunciation. The crime of incest is - as in this case - frequently committed by persons who have no criminal history and who have accepted their liability by pleading guilty. I do not regard the sentences which were imposed here as being manifestly excessive; either in isolation or as a total effective sentence. Nor do I regard the non-parole period which his Honour fixed as being manifestly excessive, as was argued.

67. I would refuse the application for leave to appeal.

[1] [1998] VSCA 144; [1999] 1 V.R. 706 at 762.