R v Wilhelm [2005] VSCA 192

2 The appellant pleaded guilty in the County Court to one count of attempting to take part in an act of sexual penetration with a child under the age of 16 (count 1) and two counts of taking part in an act of sexual penetration with a child under the age of 16 (counts 2 and 3). No previous convictions or findings of guilt were alleged against him. The learned judge heard a plea, at which several witnesses gave evidence, and took time for consideration.

3 On 5th October 2004 her Honour sentenced the appellant to two years' imprisonment on count 1, four years' imprisonment on count 2 and four years and two months' imprisonment on count 3. The appellant was sentenced as a serious sexual offender on count 3, so that the sentence imposed on that count would be served cumulatively unless otherwise directed.[1] Her Honour did order that all sentences be served concurrently, but that is not recorded on the return of prisoners. The fact that the appellant was sentenced on count 3 as a serious sexual offender is recorded. It follows that the total effective sentence, expressed as 50 months, is not intelligible on the face of the return. A non-parole period of three years was fixed and a declaration made regarding five days' pre-sentence detention. The return of prisoners records recommendations that the appellant be placed in custody where protection is paramount, given the nature of the offences and his personal circumstances; that he be seen by a general medical practitioner and a psychologist or psychiatrist forthwith upon being taken into custody; and that he have access to prescribed medication and it be administered.

4 Leave to appeal was granted by a single judge of appeal on 8th April 2005 and a full statement of grounds pursuant to rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998 was filed on 17th May 2005. There are seven grounds of appeal:

"1. That the learned trial judge failed to give sufficient weight to the appellant's complete co-operation with investigating police and expressions of remorse stated in a taped record of interview.

2. That the learned trial judge failed to give sufficient weight to the appellant's early plea of guilty to save either complainant the necessity of giving evidence.

3. That the learned trial judge failed to give sufficient weight to expert psychiatric evidence called at the plea which confirmed that the appellant suffered an undiagnosed and untreated depressive illness prior to the commission of the offences.

4. That the learned trial judge failed to give sufficient weight to evidence called on behalf of the appellant at the plea confirming that he had undergone an extensive regime of psychiatric counselling and therapy between the time of the commission of the offences and the time of sentencing.

5. That the learned trial judge failed to give sufficient weight to the appellant's lack of prior criminal history and to his prospects of rehabilitation.

6. That the learned trial judge placed undue reliance on the victim impact statements of [the complainants' parents] (vide Sentence paragraphs 51 - 70) in circumstances where:

(a) each of the victim impact statements was inadmissible in whole or in part;

(b) each of the victim impact statements was couched in emotive language which served to cause the learned sentencing judge to undervalue the matters led in mitigation of penalty on the appellant's behalf;

(c) the learned sentencing judge should have ruled each victim impact statement inadmissible or alternatively advised the appellant's counsel that she intended to rely on the victim impact statements and afforded the appellant's counsel the opportunity to cross-examine on the makers thereof;

(d) to rely on the victim impact statements involved a very clear breach of the judge's obligation audi alterem partem.

7. The reliance on the victim impact statements clearly distorted the sentencing process such that the learned sentencing judge undervalued each of the factors referred to in grounds 1 - 5 hereof inclusive and thereby led to the imposition of a sentence that was manifestly excessive."

5 The service of the sentence in protection, although its significance is sometimes exaggerated in the case of sexual offenders, is to be taken into account in deciding the issue of manifest excess. Nothing further need be said about it.

6 Before turning to counsel's submissions I shall say something briefly about the circumstances of the offences. The appellant, who was then aged 42, lived with his wife and two young children. The appellant and his family were friends of the complainants' family. The complainants are sisters. T, the victim of counts 2 and 3, was born on 12th September 1990. Her sister M, the victim of count 1, was born on 14th September 1992. They were aged 12 and 10 respectively at the time of the offences.

7 On Saturday 22nd February 2003 the appellant had a party for his birthday. The complainants and their parents attended and the complainants stayed overnight at the appellant's home. Their parents were going to another party and the children wanted to stay. The complainants' parents left at about 9 p.m. and the children present at the appellant's party, including the complainants, stayed up until about 11 p.m. The complainants then settled down for the night on a mattress in the room belonging to one of the appellant's children. They were sleeping top to toe and each had her own doona. At about 2 a.m. the appellant's wife went to bed, leaving the appellant and a friend talking. Both were drinking alcohol and, soon after, the appellant's friend fell asleep on a sofa.

8 The appellant entered the bedroom where the complainants were sleeping. He knelt down next to M and attempted to insert his finger into her anus, while she had her boxer shorts on. A short time later the appellant again went into the room. This time he leaned over M to the doona covering T. He pulled the doona down and put his hand under her boxer shorts, fingering her in the anus and vagina. Not long after, T went into the appellant's wife's room and told her that she was feeling ill. She then slept with the appellant's wife.

9 The next morning T telephoned her mother and asked that their father collect them as soon as possible. He did so and, when T returned home, she told her mother what had happened. Her mother then spoke with M and both complainants were medically examined. The appellant was interviewed in relation to the allegations against him. He said that he was intoxicated and had no recollection, but that he must have done it as the girls would not lie. That was the first of many well attested expressions of remorse.

10 The Court intimated to Mr Silbert that it was unlikely to uphold ground 6. In the light of that intimation, counsel concentrated on the ground of manifest excess, of which the other grounds are particulars. For reasons I shall explain shortly, he invited our attention to the individual sentences. He conceded that the offences were serious, but submitted that the sentences imposed on counts 2 and 3 were manifestly excessive having regard to the unusually weighty mitigatory factors in this case.

11 Mrs Quin conceded, properly in my opinion, that the sentences imposed on counts 2 and 3 were manifestly excessive. I shall give reasons for accepting that concession later. Nevertheless, she submitted, in re-sentencing the appellant this Court should impose the same or substantially the same total effective sentence, notwithstanding what she agreed was strong plea material.

12 I turn first to the reasons I joined in the intimation that the Court would be unlikely to uphold ground 6. No objection was taken below to the admissibility of the victim impact statements. Indeed counsel for the appellant expressly said that he was not challenging them. His submission was, simply and correctly, that they were not the only consideration in the sentencing process. The judge said at the beginning of the plea, when the victim impact statements were tendered, that she would take them into account and refer to them in detail in her sentencing remarks. Later she said that they showed that the impact of the offences on the victims and their parents had been, to say the least, devastating, a description with which counsel for the appellant agreed.

13 The victim impact statements occupied four-and-a-half pages of sentencing remarks that began on page 132 of the transcript and ended on page 155. Discussion followed, leading to further orders. It was entirely within her Honour's discretion to give them that degree of prominence. The victims' parents were well entitled to have them taken into account and given weight. It was readily foreseeable that the judge would be influenced, and rightly influenced, by them.[2] There was no breach of the audi alteram partem rule.

14 The other grounds of appeal are all aspects of manifest excess, which, it has often been said, admits of little argument. Generally speaking, a sentence is either manifestly excessive or it is not. There is, however, a particular aspect of this case to which reference should be made. It would have been wiser to impose shorter sentences on counts 2 and 3 and then to have directed a measure of cumulation. The reasons for that are explained in R. v. Izzard[3]. It was unfortunate that the length of the sentences imposed on counts 2 and 3 precluded any cumulation to reflect the separate offence committed against M. To adopt the expression used by Winneke, P. in Director of Public Prosecutions v. Solomon[4], M should not be allowed to feel that the offence committed against her was a "meaningless statistic".

15 The structure of the sentence has an important consequence for our task. It strengthens Mr Silbert's hand in submitting that at least one of the sentences is manifestly excessive, even if the total effective sentence is not, and accordingly that the sentencing discretion is reopened. Counsel submitted, correctly, that the best examples were the sentences of four years' imprisonment and four years and two months' imprisonment imposed on counts 2 and 3. They were both serious offences, committed against a young child in gross breach of trust. The appellant, a trusted family friend of some 20 years' standing, and his wife had the care of the complainants on the night in question and, as I have said, the impact on them and their parents was to be taken into account and given weight. It was well open to the judge to impose an immediate custodial sentence, but the maximum penalties had to be borne in mind and there were a number of powerful mitigatory factors that take this case outside the ordinary run of sexual offences against children.

16 The maximum custodial penalty was ten years' imprisonment for counts 2 and 3 and five years' imprisonment for count 1. The appellant pleaded guilty at the earliest opportunity. He fully co-operated with the police and, the judge accepted, evinced genuine remorse. He had been suffering from what Dr Walton diagnosed as a major depressive disorder, which did not supervene but contributed to the offending. Specific deterrence was not important. The appellant is not a paedophile and her Honour expressly said that she did not consider that there was any danger to the community. The appellant's prospects of rehabilitation were relevant to both the head sentences and the non-parole period. He had no previous convictions and, as mentioned in ground 4, had taken active steps towards rehabilitation. The judge found his chances of rehabilitation to be excellent. In those circumstances, in my opinion, the sentences on counts 2 and 3 bespeak error, which reopens the discretion and requires us to consider the matter for ourselves.

17 The circumstances of aggravation and mitigation to which I have referred in connection with counts 2 and 3 apply to count 1 as well. I need not repeat them. The appellant's depressive illness is to be taken into account simply as a mitigating factor, rather than by direct invocation of the propositions in R. v. Tsiaras[5]. That is because, although the appellant's illness was clinically a major depressive disorder, Dr Walton agreed that it could properly be described as "moderate", in the sense that there were much worse cases as well as less serious instances of depression. It is desirable that there be a measure of cumulation to reflect the separate offence against M.

18 Weighing up all the relevant factors, I propose that the appeal be allowed and that the appellant be re-sentenced to 18 months' imprisonment on count 1, two years' imprisonment on count 2 and two-and-a-half years' imprisonment on count 3. I would direct that 12 months of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 3, making a total effective sentence of three-and-a-half years' imprisonment, in respect of which I would fix a non-parole period of two years.

19 I agree in his Honour's judgment and in the proposed order.

20 For the reasons explained by Callaway, J.A., with which I respectfully agree, and as was responsibly conceded by the Crown, the sentence on count 3 is manifestly excessive, thereby enlivening this Court's sentencing jurisdiction. For the purposes of re-sentencing, it is plain enough, I think, that the two offences in question were of a very serious kind, involving as they did a number of aggravating features, not the least of which were a significant breach of trust and the fact that the offending was perpetrated upon two very young girls and had a significantly detrimental impact on them and their family. In the ordinary course, such offending might be deserving of a significant custodial sentence.

21 There are a number of strong mitigating factors which bear on this issue, as was conceded by the Crown and which are identified by Callaway, J.A. in his reasons, so as to take this case out of the ordinary. I mention briefly only these: first, the appellant's mental illness at the time, the relevant consequences of which were explained by Dr Lester Walton in his report in evidence before the sentencing judge. Secondly, as her Honour recognised, the appellant is not a danger to the community and his prospects of rehabilitation are excellent. Next, the appellant made full admissions when confronted with the offending and expressed genuine and strong remorse. Moreover, he was otherwise a person of good character. There are, of course, other mitigating factors which bear on this matter, to which Callaway, J.A. has referred. These matters, when taken fully into account and weighed against the aggravating matters, make the sentences proposed by Callaway, J.A., I think, with respect, appropriate. I would therefore re-sentence the appellant as his Honour proposes.

The appeal is allowed. The sentences of imprisonment imposed below are quashed and in lieu thereof the appellant is sentenced as follows:

Count 1 - 18 months' imprisonment;

Count 2 - 2 years' imprisonment;

Count 3 - 21/2 years' imprisonment.

The Court directs that 12 months of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 3, but that otherwise all the sentences be served concurrently, making a total effective sentence of 31/2 years' imprisonment.

The appellant is sentenced for the offence the subject of count 3 as a serious sexual offender and it is ordered that that fact be entered in the records of the Court.

It is declared that the period of 308 days 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.

I certify that this and the preceding 97 pages are a true copy of the reasons for judgment of Maxwell, P., Callaway and Chernov, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 4 August 2005.

DATED the day of 2005.

[1] Sentencing Act 1991, s.6E.

[2] Compare R. v. Dowlan [1998] 1 V.R. 123 at 140, Director of Public Prosecutions v. Heblos [2000] VSCA 229; (2000) 117 A.Crim.R. 49 at 57 [43] - [47] and Director of Public Prosecutions v.DJK [2003] VSCA 109 at 17.

[3] [2003] VSCA 152; (2003) 7 V.R. 480 at 484 [20]- [23].

[4] [2002] VSCA 106; (2002) 36 M.V.R. 425 at 429 [19].

[5] [1996] VicRp 26; [1996] 1 V.R. 398 at 400.