R v W S; R v J S [2006] VSCA 59

1 I invite Vincent, J.A. to state his reasons first.

2 The appellant, WS, pleaded guilty in the County Court, on 5 May 2005, to five counts of the commission of an indecent act with or in the presence of a child under the age of 16 years (counts 1, 2, 3, 4 and 6 on the presentment). This offence is punishable by the imposition of a maximum penalty of 10 years' imprisonment. Count 2, I should add, was a representative count. He also pleaded guilty to one count of making child pornography (count 5). This offence is also punishable by a maximum sentence of 10 years' imprisonment. Finally, he pleaded guilty to one count of knowingly possessing child pornography (count 7), an offence punishable by the imposition of a maximum term of five years' imprisonment.

3 The appellant JS pleaded guilty to counts 4 and 5 on the presentment.

4 WS has no prior convictions. JS admitted three prior convictions from one court appearance in June 1993. They related to two offences of taking part in an act of sexual penetration with a child of or above the age of 10 years but under the age of 16 years, and one of the commission of an indecent act with or in the presence of a child under the age of 16 years. They involved the serious sexual abuse of an 11 year old girl. Of particular relevance to the present matter was the statement of the sentencing judge in addressing JS upon that occasion that -

"[A]ny sexual offence of this kind against children and children of tender years is deserving of severe punishment. You knew that what you were doing was wrong. Whatever went on between you and [your co-offender], it was obvious to you that the use of this child in your activities was depraved and wrong.

It must be brought home to persons such as yourself that children are to be protected. Sentences will be imposed by the courts so as to deter not only people like you from engaging in them, but also other people who might be tempted to engage upon similar conduct."

For these offences, JS was sentenced to an effective term of three years' imprisonment with a non-parole period of 15 months.

5 After hearing a plea in mitigation of penalty in relation to the matters presently under consideration, the sentencing judge, on 2 June 2005, recorded convictions and imposed the following terms of imprisonment upon the appellant WS:

On each of counts 1, 2 and 7 - one year imprisonment;

On each of counts 3 and 4 - three years' imprisonment;

On each of counts 5 and 6 - two years' imprisonment.

His Honour directed that three months of the sentence imposed on count 1, three months of that imposed on count 2, two years of that imposed on count 4, six months of that imposed on count 5, 12 months of that imposed on count 6 and six months of that imposed on count 7, were to be served cumulatively upon each other and upon the sentence imposed on count 4. These orders created a total effective sentence of seven years and six months' imprisonment, in respect of which a non-parole period of five years and six months was fixed. His Honour declared that the appellant had been sentenced as a serious sexual offender on counts 3 to 7 inclusive.

6 The appellant JS was sentenced on the same day as follows:

His Honour directed that six months of the sentence imposed on count 5 was to be served cumulatively upon that imposed on count 3, thus creating a total effective sentence of three years and six months, in respect of which a non-parole period of two years and six months was fixed. This appellant was sentenced as a serious sexual offender on both counts.

7 Having been granted leave to do so, the appellants come before the Court appealing against the sentences imposed upon them. There is no need to address the grounds upon which reliance was to be placed in either case, as it has been conceded by the Crown that the sentencing judge fell into error in a material respect. Specifically, it is apparent that his Honour did not appreciate that the offences encompassed by counts 5 and 7 were not sexual offences for the purposes of Part 2A of the Sentencing Act 1991 when he applied its provisions to those two counts. Accordingly, the appeals must be allowed and the appellants fall to be re-sentenced.

8 WS and JS were married in 1995. H, the victim of the various offences, is the child of JS from a previous marriage. She was born on 2 November 1989.

9 In July 2003, WS was working as a security guard. One of the computers in his employer's premises was not used for work purposes and was apparently available to staff for the playing of computer games. On 8 July 2003, a fellow security officer was using this computer when she discovered a file containing images of child pornography. The time and date of the creation of that file corresponded to a shift worked by the appellant. Subsequent examination of the hard drive of the computer revealed approximately 40 images of child pornography in which young children were engaged in acts of oral and vaginal penetration with male and female adults. A search warrant was executed at the home of the appellant and computer hard drives, compact discs and floppy discs were seized. Examination of this material revealed a total of 235 images and two video files depicting child pornography (count 7).

10 During the search, the police found a briefcase in the boot of WS's car containing six Polaroid photographs, three of which depicted the appellant JS and the child H dressed in lingerie. In the other three, H was naked and posing in sexually suggestive positions. H, it appears, was about ten years old at the time when the photographs were taken (count 5).

11 When interviewed by the police following the finding of this material, JS stated that the photographs in which her daughter and she were dressed in lingerie had been taken at her husband's instigation, despite her protests. She said that she then left the room to attend to another child and was not present when the photographs of H, naked, were taken. When she was shown them two days afterwards, she was horrified and asked her husband to destroy them. When the police enquired whether her husband and she had done anything else inappropriate in front of H, JS said that they had had vaginal sex in front of the child. Her husband had told her that H had asked about sex between men and women. She claimed that she had tried to protest, but he had told her that H "had to learn". This incident, it seems, took place not long after the Polaroid photographs were taken (count 4).

12 WS told the police that he had downloaded the images depicting child pornography from the Internet "purely for curiosity". He said that he had intended to delete them eventually. With regard to those on his home computer, he admitted visiting sites containing child pornography and believed that there were about 900 images of this kind on his computer file that he had downloaded over a period of four to five months. Again, he said that he had engaged in this activity out of curiosity. With respect to the Polaroid photographs depicting his step-daughter in a negligee, he claimed that she wanted to have them taken. He said that it was a spur of the moment thing and that he had forgotten that they were there. However, he admitted that he used the briefcase in which they were found at work.

13 These discoveries led to a VATE interview of the child H on 21 August 2003. She disclosed that when the family was living in a unit in Carrum and she was about five years and six months of age, she had gone into the bath with the appellant and he had instructed her to wash his penis. This had occurred again when they were living at another unit in the same area (count 2 - a representative count). She also described the incident in which the two appellants engaged in vaginal sex in front of her and the occasion on which WS took photographs of her after he had told her to put on the underwear. She told of another occasion on which WS was lying on a bed and she was standing. His trousers were around his knees and he masturbated himself. He then asked her to do it to him, and she put her hand on his penis and manipulated it until he ejaculated (count 3).

14 On a further occasion when H was clothed in her school dress and sitting on her bed reading, WS came into her room and showed her a vibrator. He told her that her mother used it and that if she ever wanted to do so herself, she should ask. He then demonstrated its use by placing the vibrator on her, near her vaginal area (count 1).

15 In a second VATE interview, H said that on Friday nights, when WS came home after working afternoon shift, he would come into her room. She would pretend to be asleep. He would awaken her and then walk her into the lounge, where he would sit in front of the television receiver with her seated beside him. He would then place his hands down her pyjama pants and rub, touch and feel her vagina for about 20 minutes to half an hour, using his fingers. Sometimes this would hurt and make her feel uncomfortable. There would be videos of people engaged in sexual activity playing whilst he was doing this. H said she tried not to watch the videos and would look above the television set, but could not block out the sound. On some occasions WS would take off his pants and underwear and sit there with his penis erect. She said that her mother and brother would be asleep at this time. This happened when she was in grade 6.

16 In a subsequent statement made by JS, she described seeing her husband in the bath with H, who had her hand on his penis. She said that, with respect to the occasions on which he returned home from afternoon shift, she too would pretend to be asleep, but she could hear pornographic movies playing in the lounge. She heard her husband go to H's room on such occasions and tell her to sit with him as he had something to show her.

17 The offences committed by the appellant WS encompassed a period between 1 January 1994 and 24 July 2004. It commenced when H was about five years old and the appellant was aged 36. I note, with respect to the motivation of the appellant for engaging in this behaviour, that Mr Bernard Healey, a clinical psychologist to whom WS was referred by his solicitors, recorded that he was of average intelligence and that personality testing did not indicate the presence of any major psychological or emotional disturbance. In addressing this appellant on this aspect, the sentencing judge referred to what he described as "the position of very special trust" in which the appellant was placed as the step-father of a young child. His Honour went on to say that that trust had been totally abused over a long period of time in order to satisfy what he designated as the appellant's "perverted sexual needs". That assessment of the situation was not only open in the circumstances, but there is nothing in the material before this Court to suggest otherwise. Nor is there anything else that I have observed in the circumstances relating to the offending by WS that can be seen to militate in favour of mitigation of penalty on that basis.

18 JS, as earlier mentioned, is the mother of H. She met WS through an advertisement placed by her then husband in what was referred to as a swingers' magazine. WS lived in her household for a short period of time before she was sentenced to the term of imprisonment to which I have earlier referred. He assumed responsibility for the children while she was incarcerated. The sentencing judge accepted that JS has been assessed as suffering from a moderate to mild intellectual disability that has been evident since childhood, with a verbal IQ of 71 and a performance IQ of 73. Although this finding was challenged by Mr Wraight, who appeared on behalf of JS in this Court, there was material before the sentencing judge to support this finding. I note in this context that an assessment made through the Department of Human Services described her as suffering from borderline intellectual disability, however, that assessment was not made until relatively recently. Nevertheless, although I observe she is eligible for services under the Intellectually Disabled Persons' Services Act 1986, it appears that throughout her life she has been able to live independently and is generally capable of managing her own affairs.

19 With respect to the relative levels of responsibility of the two appellants for the abuse of H, the sentencing judge said of WS:

"Your offending is very much more substantial than that of your co-accused. You were the instigator of the criminal conduct."

"Your statements record your mild concern about the actions of your husband and your failure to act in any way to protect your daughter. You were a co-operating and willing partner in your joint criminal conduct. Your 1993 sentence of imprisonment has not taught you any lessons."

He further found, as had the sentencing judge on the earlier occasion, that although JS was in the lower range of intellectual functioning, she "knew perfectly well that what [she was] doing was wrong". These findings, in relation to each of the appellants, were open in the circumstances and I can see no reason for approaching the situation on any different basis.

20 When addressing the question of the appropriate sentence now to be imposed, Mr Kassimatis, who appeared on behalf of WS, acknowledged that the offending in which his client engaged was both serious and involved a gross breach of trust, but submitted that significant weight should be given in the circumstances to the following matters:

• the appellant's early indication of a plea of guilty;

• the acceptance by the sentencing judge that the appellant WS was genuinely remorseful;

• the prior work and social history of WS which provided no indication of criminal propensities and specifically no propensities of a kind that would indicate future engagement in activities of the kind in question;

• the absence of any prior or subsequent convictions in this appellant's case; the appellant's willingness to participate in an intensive sexual offenders' program whilst in custody; and

• finally, the fact that the offending did not extend to acts of penetration of the child.

21 This was not a situation, Mr Kassimatis contended, where specific deterrence should assume significance as a sentencing consideration, and, based upon the appellant's prior and subsequent conduct, together with his preparedness to seek treatment, the Court could have reasonable confidence with regard to the prospects of WS's successful rehabilitation. Accordingly, Mr Kassimatis submitted, the individual sentences and, in particular, those imposed on counts 3 and 4, the total effective sentence and the non-parole period to be fixed by the Court, should be lower than those which his Honour considered appropriate, and particularly bearing in mind the error made with respect to the applicability of the sexual offender provisions of the Sentencing Act 1991. In this context, the argument was advanced that that error contaminated the entire approach of the judge in the sentencing process.

22 On behalf of JS, Mr Wraight placed emphasis upon the intellectual disability under which his client laboured. He argued that her participation in the commission of the offences against H and her prior criminal history had to be considered against that background. While she was both criminally and morally culpable for her involvement, it was unrealistic, he submitted, to attribute to her the same degree of insight and blameworthiness that could be attributed to a person who was not disadvantaged to the very substantial extent that she was. The significance of the factors of general and specific deterrence also, and in consequence, had to be moderated, Mr Wraight argued. In this context reliance was placed on the approach adopted by this Court in Tsiaras[1], which has been both developed and applied in a number of subsequent judgments.

23 Clearly, intellectual disability and mental impairment may assume relevance as sentencing considerations in a large number of ways, as Eames, J.A. pointed out in Bux[2], where a number of the relevant authorities are set out and discussed. I need not expatiate upon this aspect. However, as Eames, J.A. also pointed out in Ulla[3]:

"The extent to which the Tsiaras factors will have application to the case of an intellectually disabled offender will depend on a range of considerations, most importantly the extent of the disability of the offender. "

24 It is, of course, also necessary to have regard to the extent to which the intellectual disability of an appellant may impact upon the harshness of the sentence imposed. The sentencing judge in this case was informed that the appellant had been placed in a high level protection unit which involved her being locked in her cell for 23 hours each day, and indicated that she could expect to serve any period of imprisonment imposed in a very restrictive environment. She is now in a less restrictive unit. Nevertheless, as a consequence of the limited range of facilities available, it is highly likely that she will serve her term of imprisonment under conditions that are significantly harsher than those to which prisoners are normally subject. This is a relevant consideration.

25 Mr Wraight submitted, as I have earlier indicated, that care must be taken not to attribute inappropriate significance to the prior criminal history of JS. There was a nexus, he asserted, between her level of disability and her offending and a degree of support that she was able to obtain from disability services. In this context he drew attention to another matter to which I have earlier adverted, and that is that the assessment with respect to her eligibility for such services was not made until relatively recently.

26 Mr Wraight also placed emphasis upon a number of other considerations, including the relatively low level of culpability of his client, by asserting the fact that JS was not the instigator of the offences against H, and that she was involved in only some of them. He drew attention to the fact that she had co-operated fully with the investigating police members, and indeed they would not have known of the commission of the offence encompassed in count 4 had she not disclosed it openly to them. When regard is had to these matters and to her other personal circumstances, he submitted, a substantial distinction had to be made for sentencing purposes between WS and JS, and specifically with respect to the sentence imposed on count 4. Accordingly, he argued that both the individual sentences, the total effective sentence and the non-parole period imposed on his client should be lower than those fixed by the judge in the court below.

27 Although, as I have indicated, by reason of the error of the sentencing judge in characterising the offences encompassed by counts 5 and 7 as serious sexual offences under Part 2A of the Sentencing Act 1991, the appeal must be allowed. However, I am of the view that each of the individual sentences imposed on each appellant was appropriate and should be re-imposed. I do not intend to recite any of the many statements made by judges of this Court emphasising the significance with which the sexual abuse of children is viewed. Nor do I consider that any human being with a semblance of decency would require any explanation of why this is so, or why the Court, as representative of the community, places such importance on the protection of children and consequently the significance of general and specific deterrence in the determination of appropriate sentences in such cases. All that need be said for present purposes is that, giving full weight to the pleas of guilty and the individual circumstances of the two appellants, the conduct to which they relate was in each case extremely serious and merited the imposition of imprisonment in respect of the individual offences of at least the length of the term actually imposed.

28 Some comment should be made, I consider, at this stage on the complaint with respect to counts 3 and 4. Count 3, it should be pointed out, involved the sexual abuse of a child of the tender age of five-and-a-half years, while that involved in count 4 took place almost four years later, was totally separate and of an equally egregious character. In relation to that matter, and specifically with respect to JS, it is also to be noted that the conduct involved in count 4 was almost identical to conduct in which she had participated and which brought her before the court in 1993. Before I leave this aspect, it must not be forgotten when assessing the gravity of the conduct of each of the appellants that the personal consequences to the unfortunate victim have been profound, and the full extent of the damage that she has sustained may well not emerge for a number of years.

29 In the case of WS, the fact that his offending against the child extended over a period of more than nine years and the number and nature of the separate crimes committed against her, also must be reflected in the making of orders for substantial cumulation. Again, I would re-impose those made in the court below. Finally, in the

case of WS, I would fix the same non-parole period.

30 Similarly, in the case of JS, I would re-impose the individual sentences and orders for cumulation. I would also fix the same non-parole period. In other words, save for the purpose of removing the declaration in relation to counts 5 and 7, I would not alter what has been done.

31 I agree that both appeals should be disposed of as proposed by Vincent, J.A. for the reasons stated by his Honour.

33 I will indicate what the orders will be before formally announcing them. In each matter the appeal is allowed. The sentence below is set aside and the sentence is re-imposed, save that the declaration below with respect to WS is set aside and in lieu thereof he is sentenced as a serious sexual offender under Part 2A of the Sentencing Act 1991 in regard to counts 2, 3, 4 and 6.

34 With respect to JS, the same order is made, save that the declaration applies to count 4 only.

35 With respect to each appellant, the pre-sentence declaration will be a period of 307 days.

2. The individual sentences and orders for cumulation made in the court below are set aside but re-imposed. This re-imposes the total effective sentence of seven years and six months imprisonment, in respect of which a non-parole period of five years and six months is fixed.

3. The declaration in the court below that the appellant is sentenced as a serious sexual offender under Part 2A of the Sentencing Act 1991 in regard to counts 3 to 7 inclusive is set aside. In lieu thereof, it is declared that the appellant is sentenced as a serious sexual offender under Part 2A of the Sentencing Act 1991 in regard to counts 2, 3, 4 and 6.

4. Otherwise the Court confirms the orders made in the court below pursuant to section 464ZF(2) of the Crimes Act and that the appellant be registered as a Class 2 offender in regard to all seven counts under the Sexual Offenders Registration Act 2004.

5. The Court declares that the period of 307 days detention that the appellant has already undergone is to be reckoned as having been served under the sentence hereby imposed.

6. The Court directs that this declaration and its details be entered into the records of the Court.

2. The individual sentences and orders for cumulation made in the court below are set aside and re-imposed. This re-imposes the total effective sentence of three years and six months imprisonment, in respect of which a non-parole period of two years and six months is fixed.

3. The declaration in the court below that the appellant is sentenced as a serious sexual offender under Part 2A of the Sentencing Act 1991 in regard to count 4 and 5 is set aside. In lieu thereof, the appellant is sentenced as a serious sexual offender under Part 2A of the Sentencing Act 1991 in regard to count 4.

4. Otherwise the Court confirms the orders made in the court below pursuant to section 464ZF(2) of the Crimes Act and that the appellant be registered as a Class 2 offender in regard to counts 4 and 5 under the Sexual Offenders Registration Act 2004.

5. The Court declares that the period of 307 days detention that the appellant, JS, has already undergone is to be reckoned as having been served under the sentence hereby imposed.

6. The Court directs that this declaration and its details be entered into the records of the Court.

[1] R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398.

[2] R. v. Bux (2002) 132 A. Crim. R. 244.

[3] R. v. Ulla (2004) 148 A. Crim. R. 395 at [29].