R v W W S [2009] VSCA 125

CRIMINAL LAW - Sentence - Application for leave to appeal - Whether applicant sentenced on the basis of an offence of which he was not convicted - Whether applicant subject to double or multiple punishment - Whether judge properly sentenced applicant on the basis that he showed no remorse for his offending - Whether individual sentences, total effective sentence and non-parole period manifestly excessive - Application refused.

1 The applicant, WWS, pleaded guilty in the County Court to nine counts of sexual offences against seven children between specified dates spanning the period from 1 January 2000 to 5 December 2004. Three of the children were the grandchildren of his late wife (his step-grandchildren), two were the grandchildren of his late wife's sister and two were the children of friends. The offending came to light in December 2004, when the complainants AS and AJ made complaints to the Sexual Offences and Child Abuse Unit of the Victoria Police at Morwell.

2 The applicant pleaded guilty to the following counts:

Commission of an indecent act with a child (BK) under the age of 16

Commission of an indecent act with a child (BL) under the age of 16

Maintaining a sexual relationship with a child (AS) under the age of 16

Maintaining a sexual relationship with a child (AJ) under the age of 16

Commission of an indecent act with MB in the presence of AS, a child under the age of 16

Commission of an indecent act with a child (CJ) under the age of 16

Commission of an indecent act with a child (RR) under the age of 16

Commission of an indecent act in the presence of RR, a child under the age of 16 (on an occasion other than that referred to in count 8)

Commission of an indecent act with a child (CT) under the age of 16

3 The applicant now seeks leave to appeal against the convictions imposed on counts 5 and 9 and also against the individual sentences, total effective sentence and non-parole period.

4 The grounds of appeal against conviction are as follows:

1. Count 5 is bad for duplicity, and in particular, count 5 joins two offences in the one count and charges the appellant with having committed two separate offences, being:

(a) wilfully committing an indecent act with [MB]; and

(b) wilfully committing an indecent act in the presence of [AS].

1. No conviction should have been imposed on count 5 (indecent act with a child under 16) with respect to the complainant [AS], and in particular, the offending embraced by this count should have been particularised and subsumed under count 3 (maintaining a sexual relationship with a child under 16) rather than charged as a separate and additional count.
2. No conviction should have been imposed on count 9. In counts 3, 4 and 9, the [applicant] was convicted multiple times for the one single act, namely masturbation in the presence of. [sic]

• the basis of count 9, indecent act in the presence of [RR];
• one of the particulars in count 3, in the presence of [AS]; and
• one of the particulars in count 4, in the presence of [AJ].

As a result the appellant was subjected to multiple punishment.

5 In order to consider whether grounds 1 to 3 are made out, it is necessary to describe the nature of the offending which gave rise to counts 3, 4, 5 and 9.

6 Count 3 alleged that the applicant had committed an offence under s 47A of the Crimes Act 1958. At the relevant time, that section provided that

(1) A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married is guilty of an indictable offence.

(2) To prove an offence under sub-section (1) it is necessary to prove -

(a) that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and

(b) that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period.

7 The applicant pleaded guilty to maintaining a sexual relationship with AS in the period between 1 January 2002 and 5 December 2004. In his opening address at the plea hearing, counsel for the Crown specified eight separate events involving intentional sexual penetration or commission of an indecent act against AS in support of count 3:

• between 1 January and 28 February 2002, inserting a finger into AS's vagina, resulting in a small cut to her vagina;

• between 17 January 2002 and 17 January 2003, making AS walk naked along a street in Morwell;

• between 5 June and 5 December 2004, inappropriate washing of AS in the shower;

• between 20 May and 5 December 2004, licking AS's vagina in the presence of RR;

• between 20 May and 5 December 2004, masturbating to ejaculation in the presence of AS;

• on or about 26 November 2004, lingual penetration of AS's vagina;

• on 26 November 2004, placing his penis into the hands of AJ in AS's presence; and

• on 5 December 2004, touching AS's vagina with his finger and tongue.

8 Count 4 alleged that the applicant had maintained a sexual relationship with AJ in the period from 17 January 2002 to 5 December 2004. Counsel for the Crown relied upon nine separate offences as particulars of count 4:

• between 17 January 2002 and 17 January 2003, making AJ walk naked along a street in Morwell;

• between 24 November 2003 and 18 February 2004, licking AJ's vagina;

• between 26 November 2003 and 26 November 2004, having AJ touch his penis;

• between 20 May and 5 December 2004, masturbating himself to ejaculation in the presence of AJ;

• between 5 June and 5 December 2004, washing AJ inappropriately in the shower;

• on or about 26 November 2004, kissing AJ on her vagina and blowing on her clitoris;

• on 26 November 2004, placing his penis into the hands of AJ in the presence of AS; and

• on or about 1 December 2004, persuading AJ to engage in conduct that involved the placing of a dildo on her vagina.

9 Count 5 was said to have occurred between 1 March and 30 April 2003, when the applicant licked the vagina of MB in the presence of AS.

10 Count 9 was said to have occurred between 20 May 2004 and 5 December 2004, when the applicant masturbated until he ejaculated in the presence of RR. This act was also relied upon as a particular of counts 3 and 4 respectively, because AS and AJ were also present when the applicant masturbated.

11 The first ground of appeal complains that count 5 is bad for duplicity because it includes two separate offences, the commission of an indecent act on MB and the commission of an indecent act in the presence of AS.

12 The applicant's counsel submitted that when the applicant was arraigned on count 5 he could not have known whether he was pleading guilty to committing an indecent act against MB, or to committing an indecent act in the presence of AS. Accordingly, there was a breach of the prohibition against joining two offences in a single count, the purpose of which is to inform the defendant of 'what it is of which he has been charged or found guilty ... so that he has the opportunity of making a no case submission or a sensible plea in mitigation'.[1] Counsel submitted that the duplicitous nature of count 5 could not be corrected by the prosecutor's opening at the plea, which indicated that count 5 was concerned with the commission of an indecent act on MB. Counsel maintained that the applicant should have been re-arraigned on a count which made no reference to the presence of AS.

13 Counsel for the respondent conceded that count 5 was, on its face, bad for duplicity, but submitted that the problem had been corrected by Crown counsel in his opening. The respondent's counsel said that the applicant and his counsel were aware of the nature of count 5 from the time when a draft Crown opening was served on the defence on 28 March 2006. This was virtually identical to the opening delivered at the plea hearing on 25 October 2006. In the course of the plea hearing, the learned sentencing judge had ascertained the events that were said to constitute each count, and both counsel and the sentencing judge had proceeded on the basis that the applicant had pleaded guilty to the commission of an indecent act with the complainant, MB, by licking her vagina.

14 As expressed in the presentment, the form of count 5 clearly breaches the prohibition against duplicity. In Rixon v Thompson[2] this court said that

[i]t is a basic rule of the common law that no count in an indictment should charge the defendant with having committed two or more separate offences. ...

In Victoria, the position regarding presentments is set out in the sixth schedule to the Crimes Act 1958. Rule 3(2) provides that where more than one offence is charged in a presentment, the particulars of each offence so charged shall be set out in a separate paragraph called a count.[3]

15 However in that case it was accepted that where there is a patent duplicity in a presentment, it can be 'cured by an election'.[4] The same applies where the evidence at trial reveals a duplicity which was not apparent from the terms of the presentment.[5]

[I]t's the Crown case that while [MB] slept in the prisoner's bedroom he indecently assaulted her by licking her vagina in the presence of [AS] who was awake at the time and was told by the prisoner to go back to sleep. It's also the Crown case that the prisoner admitted to [AS] what he was doing by saying 'I'm licking your friend out' at the time that he told her to go to sleep. [AS] recalled the incident because she also remembered that [MB] had wet the bed that night.

17 It is clear from that opening that the Crown elected to treat count 5 as covering only the indecent act against MB. The reference to AS's presence simply supported MB's account of what had occurred. If there was any doubt about that election, it was clarified by Exhibits C2 and C3 to the Crown opening. These were tables prepared by the Crown indicating the relevant offences, the dates between which they were committed and the name of the complainant for each offence. MB was identified as the complainant in relation to count 5.

18 At the beginning of her sentencing remarks, where her Honour set out the ages of the children, she referred to AS in connection with counts 5 and 3,[6] and to MB in the context of count 6, which counsel for the Crown had previously abandoned. However later in her reasons, her Honour described the circumstances and complainant for each count and referred to MB as the complainant in count 5.[7] Thus the initial error was corrected later in the judge's sentencing reasons.

19 The prosecutor's election cured the duplicity which would otherwise have arisen. The applicant was neither convicted of, nor sentenced for, two offences under count 5. No miscarriage of justice has arisen because the applicant was unable to ascertain the offence to which he pleaded guilty. Ground 1 therefore fails.

20 Ground 2 claims that count 5 should not have included the offence of committing an indecent act in the presence of AS, because this offence could only have been dealt with as a particular of the offence of maintaining a sexual relationship with AS, which was covered by count 3.

21 Counsel for the applicant relied on the decision of this Court in R v GJB[8] in support of the submission that the applicant could not be convicted on count 5. In GJB, the appellant had pleaded guilty to one count of maintaining a sexual relationship with a child between the ages of 10 and 16, contrary to s 47A of the Crimes Ac 1958. That offence occurred between July 1999 and 7 April 2000, when the child's mother discovered what had been occurring. In addition, the appellant pleaded guilty to one count of committing an indecent act with a child and three counts of unlawful sexual penetration of a child between the ages of 10 and 16. Those offences were against the same victim and occurred in the same period as the offence of maintaining a sexual relationship with her. The acts of sexual penetration covered different forms of penetration to those included in the s 47A offence.

22 The Court held that the appellant should not have been convicted of the offence of maintaining a sexual relationship with the complainant and of the other sexual offences against her occurring within the same period. Instead, the four specific offences should have been treated as particulars of, or alternatives to, the offence of maintaining a sexual relationship.[9]

23 The principle in R v GJB does not apply in the circumstances of this case. As we have said, counsel for the Crown elected to treat count 5 as a count of wilfully committing an indecent act with MB. The applicant was not convicted of an offence against AS arising out of the incident in which he licked MB on the vagina in the presence of AS. Accordingly ground 2 also fails.

24 Ground 3 complains of duplicity. Counsel for the applicant submitted that he was exposed to double punishment because he had been convicted of three offences arising out of a single act (masturbation). This act formed the basis of count 9, (indecent act in the presence of RR), one of the particulars of count 3 (indecent act in the presence of AS), and one of the particulars of count 4 (indecent act in the presence of AJ). Accordingly, the conviction on count 9 should be set aside.

25 Counsel for the Director submitted that the prohibition against exposing the offender to double jeopardy or 'double punishment' had not been breached in the circumstances of this case. The applicant had committed three separate offences against three separate complainants, and could therefore properly be convicted of the offence covered by count 9, as well as the offences included in the particulars of counts 3 and 4. Counsel conceded that the fact that the convictions arose out of a single act should be taken into account in determining the sentences which should be imposed on the individual counts and the total effective sentence.

26 At common law the principle of double jeopardy prevents an offender from being convicted twice for the same offence, or from being convicted of two offences which have the same elements.[10] In addition, s 51(1) of the Interpretation of Legislation Act 1984 provides that:

[w]here an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

27 Although the recording of a conviction after a plea or a guilty verdict amounts to a punishment, within s 51,[11] in our opinion neither the common law double jeopardy principle, nor s 51, requires the conviction on count 9 to be set aside.

[w]hether as a consequence of the common law or by virtue of s 51 Interpretation of Legislation Act 1984 an offender cannot be punished twice for the same act or omission. Whilst the boundaries of the doctrine remain uncertain they extend to prohibit conviction where the elements of the offences are the same, or where the two offences contain elements established by the same act unless there are different consequences from the same act. Though the doctrine has a scope of operation beyond such circumstances, the fact that the offences are similar or arise substantially out of the same facts is not determinative of whether a conviction on both offences offends these principles.[12]

29 In this case counts 3, 4 and 9 have different elements. Counts 3 and 4 require the Crown to prove that at least three relevant offences were committed against AS and AJ respectively. The act of masturbation occurred along with seven other offences in the case of AS, and eight other offences in the case of AJ, thus giving rise to the offence of maintaining a sexual relationship. Count 9 requires proof of a single act of indecency in the presence of RR.

30 The prohibition on double punishment does not prevent the prosecution of an offender for more than one offence where an offender's single action causes harm to more than one person. In Phillips v Carbone (No 2),[13] the Full Court of the Supreme Court of Western Australia held that s 16 of the Criminal Code (WA), which prohibited a person from being 'twice punished for the same act or omission',[14] did not apply in the situation where an offender caused bodily harm to two persons by a single act of dangerous driving. Ipp J said that s 16 was not intended to protect a person who caused multiple harm to different persons by a single act.[15]

31 In R v Bekhazi,[16] this Court held that an offender who drove a car while under the influence of drugs, killing one victim and recklessly endangering another, could be convicted of two offences arising out of that action. Winneke P said:

[t]he offences described by ss 22 and 318 of the Crimes Act are different, not only in their elements, but also in the acts or omissions which constitute them. Each contemplates 'harm' flowing to identifiable 'victims'. In other words, they are not the same offence either in law or in fact and, accordingly, to punish the appellant for each of them does not infringe the protection afforded by s 51 [of the Interpretation of Legislation Act] merely because each offence derives from a common course of driving. So far as I am aware, it has never been doubted that, if the act of detonating a bomb kills or injures multiple victims, the accused can be charged with and punished for as many offences as there are victims. Likewise, if a course of driving a motor vehicle causes the death of one person and endangers the life of another, the fact of the death of one victim and the endangerment of the life of the other must be part of the relevant 'acts or omissions' constituting the separate 'laws' because the consequences cannot be divorced from the separate obligation owed by the accused to the separate victims. In the eyes of the criminal law, it is the existence of the separate obligations owed to the several victims of the one criminal act which, in part, defines the acts or omissions constituting the different offences arising from that act. It is that concept which, I think, underlies the 'fundamental distinction', referred to by Ipp J in Phillips v Carbone (No 2), above, at 190, between a single act that contravenes more than one 'law', and a single act that harms more than one person.[17]

32 Vincent JA took a similar view. His Honour said:

[t]he detonation of a bomb in a shopping centre may, from the perspective of a particular perpetrator, involve a single action. However, as far as the law is concerned, the individual has committed a separate criminal act against each of his victims. Through the actor's engagement in the one activity, he has breached what the law sensibly regards as quite distinct and identifiable obligations to the community and to each of those encompassed by the offence concerned and for which he is separately accountable. The one action may involve the commission of a number of such breaches and offences, each of which is regarded as involving a separate act. So viewed, the same conduct or act, although I would prefer to employ the term action, may attract criminal responsibility as murder, attempted murder, or one of a number of other lesser offences according to the consequences for the respective victim or potential victims.

It is not simply that the action undertaken has had a number of consequences or has affected more than one victim, although this underlying reality provides the most powerful rationale of the attribution of responsibility in respect of each victim, but rather that the criminal law represents and reflects, on behalf of the community, significant aspects of the relationships and duties which are regarded as essential and separately owed to the community and to each member. Returning to the example given above, it is not regarded as the same act to kill A as it is to kill B, although their deaths may result from the same action. Nor, in the present context, was the action which resulted in the death of Ms Hornidge to be regarded as subsuming the offence and acts of placing Ms Archdall and Mr Morland in danger of death.[18]

33 The applicant's action of masturbation affected each of the three young girls who were present when this action was performed. The situation is therefore similar to that arising in Phillips. If the applicant had been convicted of only one of these offences, the judge would not have been able to sentence the applicant for the effects of his action on the two other two girls.

34 The applicant's counsel submitted that if the conviction on count 9 was upheld a man who masturbated in a hall full of children could be convicted of hundreds of separate counts of committing an indecent act in the presence of a child. The theoretical possibility that this could occur does not require the quashing of the applicant's conviction on count 9. Such a situation is likely to be dealt with by the sensible exercise of prosecutorial discretion to limit the number of offences with which an offender is charged, where the offences arise out of a single act. Alternatively, the court may be able to exercise its power to prevent an abuse of process in such circumstances.

35 As McHugh, Hayne and Callinan JJ said in Pearce:

there are sound reasons for confining the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.[19]

[c]onfining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen.

The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.[20]

36 For these reasons, ground 3 also fails and we would refuse the application for leave to appeal against conviction. We now turn to the application for leave to appeal against sentence.

37 The ages of the victims, and the sentences imposed on the applicant, in respect of each count, were as follows:

38 Her Honour ordered that the following periods be served cumulatively with the sentence imposed on count 4 (head sentence):

This resulted in a total effective sentence of 11½ years' imprisonment and her Honour ordered a non-parole period of nine and a half years.

39 The grounds of appeal against sentence were as follows:

1. The sentencing judge erred when imposing sentence on count 3, in particular:

(a) the applicant was sentenced on the basis that he had committed an offence against [RR], in circumstances where the applicant was not convicted for any such offence;

(b) the sentence imposed embraced conduct which was not included within the particulars of the count; and

(c) the sentence imposed embraced conduct charged in count 4, resulting in double punishment.

1. The sentence imposed on count 5 embraced conduct subsumed under count 3, resulting in double punishment.
2. The sentences imposed resulted in the applicant being punished multiple times for a single criminal act, and in particular, with respect to sentences on count 9, count 3 and count 4.
3. The sentencing judge erred in sentencing the applicant on the basis that there was no evidence of remorse.
4. In all the circumstances:

(a) the individual sentences of imprisonment on each count;

(b) the total effective sentence; and

(c) the non-parole period;

are manifestly excessive.

40 The applicant's counsel contended that in sentencing the applicant on count 3 (maintaining a sexual relationship with AS), her Honour had included an indecent act done in the presence of RR. Accordingly, the applicant had been sentenced for an offence with which he had not been charged, contrary to the principle in R v Newman and Turnbull.[21]

41 Counsel for the respondent submitted that her Honour's comments relating to count 3 referred to the particulars of the offence against AS and that her Honour had not sentenced the applicant for the offence of committing an indecent act in the presence of RR.

42 Her Honour made the following remarks on this matter:

Count 3, the complainant [AS] and her sister, who is the complainant in Count 4, [AJ], stayed at your home overnight frequently during 2002 until 2004. The Crown case is that you maintained a sexual relationship with [AS] in that you sexually penetrated her as well as committing a number of indecent acts with her or in her presence. The particulars of your conduct are as follows: inserting your finger into her vagina causing a cut to her vagina; making her walk naked in a street in Morwell; washing her in the shower in an inappropriate manner in the circumstances; licking her vagina in the presence of another child, [RR]; masturbating yourself until you ejaculated in her presence; inserting your tongue into her vagina; placing your penis in the hands of her sister, [AJ], in her presence and touching her vagina with your finger and tongue.[22]

43 In our opinion ground 1(a) cannot be sustained. Her Honour was careful to separately identify the complainant for each count. She referred to RR as the complainant in counts 8 and 9, but not as the complainant in relation to count 3. In our opinion her Honour simply described the circumstances in which one of the particulars of count 3 occurred, and did not incorrectly sentence the applicant for an offence against RR.

44 Counsel submitted that the applicant was doubly punished because one of the particulars of count 3 (maintaining a sexual relationship with AS), was that the applicant had placed his penis in the hands of her sister, AJ, in the presence of AS. This act was also relied upon as a particular of count 4 (maintaining a sexual relationship with AJ).

45 For the reasons given above, the fact that the same act constituted or was part of an offence committed against both AS and AJ does not require the setting aside of the conviction on count 4. However in sentencing the applicant for counts 3 and 4, her Honour was required to take account of the fact that the particulars of both these counts included the applicant's single act of placing his penis in AJ's hands. Her Honour's sentencing remarks indicate her awareness of this overlap. Her Honour was also required to give appropriate weight to the seven other indecent acts committed against each of AS and AJ, which provided the basis for the applicant's guilty plea on counts 3 and 4. As we discuss in more detail below, the individual sentences imposed in relation to counts 3 and 4 cannot be impugned. Her Honour's recognition of the overlap in offending is reflected in the order that only two years of the six year term of imprisonment imposed on count 3 be cumulated on the seven year term imposed on count 4.

47 Ground 2 fails for the reasons set out in [20] to [23] above. Ground 3 alleges that the sentence imposed on counts 3, 4 and 9 amount to multiple punishment because the applicant was sentenced for an act which constituted the offence in count 9 and which was also part of the particulars of counts 3 and 4. The fact that one action of the applicant gave rise to three separate offences meant that he was less morally culpable than if these offences had arisen out of[23]hree separate actions.23 This was a matter which her Honour had to consider in determining the individual sentences to be imposed on each count. There is nothing in the individual sentences imposed on counts 3, 4 or 9 which suggests that she did not do so. In paragraphs [22] and [23] of her sentencing reasons, the judge made specific reference to the fact that the offences covered by counts 8 and 9 were referred to in the particulars of the offences relating to AS and AJ.

48 The question whether the individual sentences imposed were affected by error must be considered separately from questions of cumulation or concurrence.[24] Nevertheless, we note that her Honour's recognition of the overlap between the offences against AS, AJ and RR is reflected in the fact that only six months of the two and a half year sentence of imprisonment imposed in relation to count 9 and two years of the six year sentence imposed on count 3 were cumulated on the seven year sentence imposed on count 4 (the head sentence).

49 In her sentencing remarks her Honour said that there was no evidence that the applicant was remorseful.[25] Her Honour concluded that the applicant's guilty plea should be given considerable weight, both because it saved the community the cost of a trial and because it relieved the complainants and their family members from giving evidence.[26]

50 The applicant's counsel submitted that the learned sentencing judge had wrongly sentenced the applicant on the basis that there was no evidence of remorse. Counsel submitted that this finding was not open to her Honour because the applicant had pleaded guilty and because the expert reports of Dr Adam Deacon, a forensic psychiatrist, and Mr Michael Davis, a forensic psychologist, stated the applicant had shown some regret for his offences. The applicant's counsel relied on the fact that the applicant had told Mr Davis 'I'm not blaming the kids, it's all me'.

51 Her Honour referred to the reports of Mr Davis and Dr Deacon in some detail. She said that:

Mr Davis in his report considered that your pattern of behaviour was indicative of paedophilia in relation to females. The history taken by Mr Davis indicates that you have little insight into your offending as you have continually minimised the offences. He said at p5:

'The current offences occurred in the context of considerable trust being placed in [the applicant] by his stepchildren and other family friends. He noted that his stepdaughter believed his account of the 1998 offence and continued to have her children stay over with him. Despite pleading guilty [the applicant]'s descriptions of the offences were replete with minimisation, rationalisation, denial and distorted thinking. He noted that his step grandchildren knew a lot about sex because their parents would watch pornography in front of them, accordingly he claims that the children would often instigate sexual behaviour with him.'

Mr Davis in his report specifically referred to the history taken in relation to Counts 1, 2 and 3, then he continued:

'[The applicant] denied ever masturbating himself to ejaculation in front of the children. Furthermore he claims that the girls always laughed hysterically when he would blow on their clitorises. He denied the allegation in relation to Count 5 and Count 10.'

Mr Davis then reported as follows:

'Despite his minimisation and denial [the applicant] did tearfully note, "I'm not blaming the kids, it's all me." He added, "However I should have nipped it in the bud. I felt disgusted after each time. Every time I promised myself that's it but they dragged me into another game and games would get out of hand. I never ever encouraged them to stay over. It was their idea I think. They became overly familiar. I may have overlooked them perhaps. I love them and I can't say no to them. I went along with it for their benefit. That's what they wanted. I came down to their level."

Nonetheless [the applicant] could apparently see himself as a victim as he noted; "I've lost the one and only love: children. I miss them, I'll never see my best mate, my stepson Neville. No way known I would have hurt them. I think they're hurt more because I'm here than when I was outside. I don't think they hate me. I hope they'll come and see me in the future."

However, there was some minor insight as [the applicant] stated, "I love my grandchildren, they love me too and I took advantage of that love. In retrospect I think it's a good thing that it's come to a head and I've been stopped."'

In your record of interview you describe what occurred in relation to some accusations as being a game the children were playing with you, which clearly is not correct.

The forensic psychiatrist Dr Adam Deacon set out his opinion as follows:

'[The applicant] is a paedophile. He has committed a range of sex offences against children. He displays ongoing cognitive distortions that have triggered and maintained his offending behaviour. He minimises and denies aspects of his involvement dispute [sic] pleading guilty to the charges. He is regretful and moderately shamed by his offences but has limited capacity for empathy and remorse. He denies sexual gratification from his behaviours despite clear evidence to the contrary.

The origin to [the applicant]'s paedophilia are unclear but there are a number of possible contributing factors. He was allegedly sexual [sic] violated by a teacher at age 13. He was an only child with considerable social difficulties amongst his peer group. He appears to desire closeness to children but is unaware of appropriate boundaries. He does not understand levels of intimacy. He identifies with children's playfulness but has not understood adult roles and responsibility. He probably experienced a prolonged grief response following the death of his second wife Margaret. [The applicant] does not have any mental health issues other than paedophilia.'[27]

52 In our opinion Ground 4 is not made out. In Queen v Cooper,[28] Winneke P commented that:

A distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds herself ... The degree of true remorse demonstrated by an offender is a question of fact for the judge ...[29]

53 As her Honour noted, the applicant minimised his offending when interviewed by the police and suggested that the children had played an active role in it.[30] In his record of interview he described some of the accusations as being a game the children played with him. This was despite the fact that in 1998, after he was convicted of two counts of committing an indecent act with a step granddaughter, he was sentenced to a community based order for 18 months, which required him to participate in a sex offender treatment program.

54 In addition to the passages from Dr Deacon's report cited by her Honour, Dr Deacon said that:

When issues pertaining to the offences were explored [he] became defensive, evasive, guarded and avoidant ... He minimised and denied many of the offences despite having [pleaded] guilty...

[The applicant] displayed a range of cognitive distortions that directly related to his offending behaviour. He projected to blame many of his victims, minimised his proactive involvement and rationalised aspects of his offences by explaining that he 'overloved them'. He initially denied that he received sexual gratification from his actions despite later acknowledging that he had pleaded guilty to masturbating to ejaculation with one of the victims.

He displayed limited insight into his offending behaviour but acknowledged being 'confused' with affection displayed towards the children in his care. He displayed no appreciation of the potential emotional and psychological impact of sexual abuse on the victims. He expressed regret, 'I'm sorry', and shame, 'I'm ashamed', for his actions and recognised that he had 'abused the trust' of his victims. He communicated little empathy for the victims. He felt deserved of punishment 'I don't care if I'm locked up ... I'm being punished and I deserve it'.

55 Both experts agreed that the applicant has limited insight into the effects of the offending on his victims. They noted that he denied a number of the offences and, to some extent, continued to blame the children for what he did to them, and to interpret their behaviour as instigating sexual contact.

56 On the basis of this evidence, her Honour made no error in finding that the applicant was not genuinely remorseful. Further, even if her Honour should have found that the applicant displayed some limited remorse, that remorse was so qualified and rationalised by the applicant that we do not consider it should have been given any weight in addition to that given for the guilty plea. Her Honour said she had given considerable weight to that plea, even though the applicant did not plead guilty to the offences at the first available opportunity.

57 The applicant's counsel submitted that the individual sentences and total effective sentences were manifestly excessive having regard to:

• the applicant's plea of guilty;
• the fact that the committals proceeded by way of hand-up brief so that the children were not required to give evidence;
• the absence of penile penetration;
• the advanced age of the applicant, who was 62 years old when he was sentenced;
• the fact that only minor physical injuries were caused to the children;
• the fact that he made admissions in the police interview; and
• the fact that the applicant had some insight into his wrongdoing and expressed relief to the psychologist and the psychiatrist that it had been stopped.

58 Sentencing statistics show that between 2001-02 and 2005-06, the median length of imprisonment for the offence of committing an indecent act with a child under 16 was one year and six months.[31] Counsel for the respondent conceded that some of the individual sentences imposed for the counts 5, 7, 8 and 9 were at the upper end of the range of sentences imposed for this offence. However he submitted that these sentences were justified by the youth of the children, and the fact that the offences involved serious breaches of trust and had occurred in the context of persistent offending over a five year period. He also submitted that her Honour had taken appropriate account of the age of the applicant and of the fact that he pleaded guilty to the offences. The sentences imposed for maintaining a sexual relationship with a child under 16 were well within the applicable range and her Honour had made appropriate orders for cumulation.

59 In our opinion those submissions should be accepted. The indecent act offences involved masturbation, touching the complainant's vagina and licking the complainant's vagina. All of the victims were very young and the applicant was in his late 50s when the offending began. As her Honour said, the applicant's actions were not committed on the spur of the moment, but were 'well thought out and deliberate'.[32] The applicant took advantage of his trusted position as the children's 'Pop' and regular baby sitter to sexually exploit them.

60 Some of the parents and children have provided victim impact statements which show that the offending has had serious effects on their lives. One couple has found it necessary to move interstate so that their girls will feel safe. One mother is taking medication for depression, and is having difficulties in her relationship with her partner. Three of the girls say they continue to feel frightened.

61 As Vincent JA said in DPP v Toomey,[33]

[i]t is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[34]

62 Specific deterrence was an important sentencing factor in this case, having regard to the applicant's prior conviction on two charges of committing an indecent act on a child under the age of 16, and the fact that his previous participation in a sex offender treatment program did not prevent him from later offending against seven young children. The applicant commenced re-offending shortly after the expiration of the community based order imposed for the previous like offending. It was also necessary for her Honour to give considerable weight to general deterrence. Having regard to all of these circumstances, we do not consider that the sentences imposed on counts 1, 2, 5, 7, 8, 9 or 10 are manifestly excessive.

63 The maximum sentence for the offence of maintaining a sexual relationship with a child under the age of 16 is 25 years. Between 2001-02 and 2005-06 the median sentence imposed for this offence was 5 years.[35] In the recent case of DPP v DDJ,[36] the Director appealed against a five year sentence of imprisonment imposed for maintaining a sexual relationship with a 14 year old girl over a five month period. In considering that appeal the court[37] examined the sentences imposed on 18 offenders who had been convicted of this offence, allowed the Director's appeal and increased the sentence to seven years. The offender's acts in that case were particularly abusive and degrading, but the sentence imposed had to take account of the double jeopardy principle, the fact that the victim was considerably older than AS and AJ and that the abuse took place over a shorter period.

64 Counts 3 and 4 were appalling offences, which involved sustained abuse over nearly three years. AJ (the complainant in count 4) was a very young child (between 4 and 6 years old) when she was abused by the applicant. The gravity of the offending clearly justified the imposition of a seven year period of imprisonment, which is less than a third of the maximum penalty for this offence.

65 For similar reasons there is no basis for the submission that the six year term of imprisonment imposed on count 3 was manifestly excessive.

66 Her Honour appropriately treated the sentence imposed on count 4 as the head sentence. She was required to sentence the applicant as a serious sexual offender on counts 3 to 10. In sentencing the applicant on those counts, her Honour had to 'regard the protection of the community from the offender as the principal purpose' for imposing the sentence,[38] though she did not regard it necessary to impose a sentence longer than that proportionate to the gravity of the offending.[39]

67 Under s 6E of the Sentencing Act 1991 the sentences imposed on counts 3 to 10 had to be served cumulatively on other sentences of imprisonment imposed on the offender, unless the court directed otherwise. The orders for cumulation made by her Honour were modest, reflecting the fact that some of the offending behaviour was relevant to more than one offence. Her Honour said she had taken account of the fact that the applicant was in his early 60s, that it was his first time in prison and that the offending did not take place in violent circumstances.[40]

68 In all of these circumstances, neither the individual sentences, the total effective sentence nor the non-parole period were manifestly excessive. Ground 5 therefore fails.

69 For these reasons we would refuse the application for leave to appeal against sentence.

[1] Walsh v Tattersall (1996) 188 CLR 77 ('Walsh'), 84 (Dawson and Toohey JJ).

[2] [2009] VSCA 84.

[3] Ibid [46] and [48]. See also Walsh (1996) 188 CLR 77, 84 (Dawson and Toohey JJ).

[4] [2009] VSCA 84 [85].

[5] Walsh (1996) 188 CLR 77, 110 (Kirby J).

[8] [2002] VSCA 54; (2002) 4 VR 355 {'GJB').

[10] Pearce v R (1998) 194 CLR 610 ('Pearce'). For a helpful overview of the authorities, see also Neill v County Court of Victoria [2003] VSC 328 ('Neill'), [65] (Redlich J, as he then was).

[11] See Sentencing Act 1991 s 7 and R v Sessions [1998] 2 VR 304, 313 (Hayne JA).

[12] [2003] VSC 328, [65] (citations omitted).

[13] (1992) 67 A Crim R 392 ('Phillips').

[14] The section excluded the situation where the act or omission caused the death of a person.

[15] Phillips (1992) 67 A Crim R 392, 413.

[16] [2001] VSCA 178; (2001) 3 VR 321.

[18] [2001] VSCA 178; (2001) 3 VR 321, 332-3.

[21] [1997] 1 VR 146, 150 (Winneke P, Hayne JA and Crockett AJA agreeing).

[23] R v Bekhazi [2001] VSCA 178; (2001) 3 VR 321, 330-331. See also Pearce (1998) 194 CLR 610, 623-4 (McHugh, Hayne and Callinan JJ).

[24] Pearce (1998) 194 CLR 610, 624 (McHugh, Hayne and Callinan JJ).

[28] [1998] VSCA 39; (1998) 103 A Crim R 51, 55.

[31] Sentencing Snapshot No 24: Sentencing trends for indecent act with a child aged under 16 in the higher courts of Victoria 2001-02 to 2005-06.

[33] [2006] VSCA 90.

[35] Sentencing Snapshot No 25: Sentencing trends for maintaining a sexual relationship with a child aged under 16 in the higher courts of Victoria 2001-02 to 2005-06.

[36] [2009] VSCA 115 ('DDJ').

[38] Sentencing Act 1991, s 6D(a).