R v X A [2009] VSCA 52

2 After trial on what I shall call 'the second presentment', the appellant was found guilty of an indecent assault upon his married sister-in-law.[1] The judge sentenced him to 18 months' imprisonment. On what I shall call 'the first presentment', the appellant belatedly pleaded guilty to six counts of sexual offences against children. The offences were committed in the period January 2000 to September 2004. At the time when the offences were committed, each of the victims, being a friend of a daughter of the appellant, was 'sleeping over' at the appellant's home.

3 The complainants, the offences and the individual sentences imposed were respectively as follows.

4 Complainant A: count 1, indecent act with or in the presence of a child aged between 10 and 16 years[2] (touching the complainant's vagina), 12 months' imprisonment; count 2, indecent act (placing the complainant's hand on the appellant's penis), 12 months' imprisonment; count 3, attempted sexual penetration of a child aged under 16[3] (attempted penile/vaginal penetration), 30 months' imprisonment. This complainant was aged between 11 and 13 at the time of the offending.

5 Complainant B: count 4, indecent act (touching the complainant's vagina), 24 months' imprisonment; count 5, indecent act (touching the complainant's vagina), 24 months' imprisonment.

6 This complainant was aged between 10 and 13 in the period of the offending. The counts, which related to acts done in different rooms of the appellant's home, were representative .

7 Complainant C: count 6, indecent act (touching the complainant's pubic area), 12 months' imprisonment. This complainant was aged 14 when the offence was committed.

8 The grounds of appeal are as follows:[4]

1. The learned sentencing judge erred in the fixing of the non-parole period.
2. The learned sentencing judge failed to give sufficient weight to the appellant's plea of guilty.
3. The learned sentencing judge failed to give sufficient weight to the appellant's mental illness in so far as it was relevant to:

(a) the appellant's experience of imprisonment being more onerous.

1. The learned sentencing judge erred by imposing a sentence which was manifestly excessive.

9 The non-parole period was an unusually large proportion of the total effective sentence. The learned sentencing judge did not explain why he had set so high a non-parole period. The circumstances were thus such as to invite appellate scrutiny.[5]

10 The appellant's offending was undoubtedly serious. It involved multiple victims and multiple attacks of a similar kind. In the case of the young complainants, it involved breach of trust. Those complainants, unsurprisingly, had been, and remained at the time of preparing victim impact statements, considerably affected by what the appellant had done to them. The maximum penalties set by the Crimes Act[6] show that Parliament views such offences seriously. In the circumstances, considerations of just punishment, denunciation and general and specific deterrence were all pertinent.

11 Even so, other factors told in favour of some mitigation of sentence: the plea of guilty, though late, to the counts on the first presentment; the absence of prior offending by a man aged 47 at the time of sentence; the absence of any subsequent offending; the circumstance that the appellant had been much affected by his misconduct, having attempted suicide on three occasions between January and August 2006, and having sustained a persisting major depressive disorder which was likely to make imprisonment more burdensome for him than for others; evidence of remorse, the appellant coming to understand, to an extent, the serious nature of what he had done; the fact that the appellant had given up alcohol, he having previously been a 'loss of control drinker', and alcohol having likely played a part in at least some of his offending conduct; the fact that the appellant's work record had been steady; and the fact that, as the judge found, the offending had been contextual rather than paedophilic.

12 Those circumstances revealed, I think, a real prospect of rehabilitation; and probably a lesser need for the sentence to reflect specific deterrence than might at first glance have seemed to be the case. So there was reason to think the community would be best served by the appellant being returned to society under supervision for a relatively lengthy period of time.[7] If the judge did not consider that this was so, however, then his Honour needed to explain - at least in abbreviated form - why he had arrived at a different conclusion. But his Honour imposed a proportionately long non-parole period; and he said nothing at all about the appellant's prospects of rehabilitation.

13 The matters to which I have referred at [7] and [8] have persuaded me that the learned judge did err in setting a non-parole period which was so great a proportion of the total effective sentence. At least, a different and shorter non-parole period should be fixed. The sentencing discretion is re-opened.

14 What, then, of the individual sentences, the orders for cumulation and thus the total effective sentence? That takes me to consideration of grounds 2, 3 and 4, depending upon the resolution of which the appropriate non-parole period would be likely to vary.

15 The plea of guilty on the first presentment was late made. Counsel for the appellant effectively conceded in the County Court that not too much could be made of it, although he submitted that the appellant was entitled to 'some benefit' for the plea. It was such as to invite appellate scrutiny.[8]

16 The learned judge noted the appellant's plea of guilty. But he said nothing directly about its significance or otherwise - either its utilitarian value or whether he considered it indicative of remorse.

17 His Honour's remarks were, I think, less than satisfactory, albeit that a judge need not lay out his or her analysis of every sentencing consideration in detail. It is possible, but I think it is improbable, that he ignored the utilitarian value of the plea. Further, whilst the plea was capable of supporting a conclusion that the appellant was remorseful, the judge reached that conclusion in any event.

18 In my opinion, then, ground 2 has not been made out.

19 Counsel for the Crown submitted that it had not been in dispute on the plea that the appellant's imprisonment would be more burdensome than for the ordinary prisoner because of his considerable psychiatric disorder. Whilst it had been submitted at trial that what was said in R v Verdins[9] was not of significance; that had not been put in the context of so-called principle 6.[10]

20 Against that background, counsel submitted that his Honour had recognised in his sentencing remarks that he was dealing with a man suffering from a serious psychiatric illness, and as well a man who was now alienated from his family; each of these matters bearing upon the burden of a sentence of imprisonment. It must be assumed, counsel for the Crown submitted, that his Honour had brought these matters to account when imposing sentence.

21 The difficulty, as I see it, with that submission is that his Honour focused in his sentencing remarks on a negative proposition - that is, that the appellant's psychiatric condition did not explain or minimise his offending. In my opinion, the appellant has made out ground 3. Indeed, there is nothing to indicate that his Honour attached any weight to the appellant's mental illness as bearing upon the burden of imprisonment. Further, I should say that it was a matter to which some weight must have been given.

22 Counsel for the appellant ultimately accepted that he could not succeed in an argument that any of the individual sentences passed was manifestly excessive. Speaking generally, in my opinion, that concession was rightly made.

23 Counsel submitted, however, that both the total effective sentence and the non-parole period were manifestly excessive. Counsel for the Crown submitted, to the contrary, that circumstances including the number of complainants, the variety and nature of the offences, the fact that some counts were representative, and the fact that the appellant was to be sentenced on some counts as a serious sexual offender, well justified the total effective sentence which the judge imposed.

24 I am not prepared to conclude that the total effective sentence was manifestly excessive. But I do consider, by reason of the matter raised by ground 3 in respect of which specific error has been identified, that a different and lesser total effective sentence should have been imposed.

25 There were other problems with the sentence which the judge imposed to which I should refer.

26 First, his Honour fixed a non-parole period in respect of the sentence imposed on the second presentment, and then a non-parole period on the total effective sentence resulting from cumulation of part of the sentence imposed on the second presentment with the sentence resulting from orders for cumulation on the first presentment. With respect, where sentence is passed at the one time on more than one presentment, it is no different to the situation where sentence is imposed for more than one offence on the same presentment. A single non-parole period should be set, referable to the total effective sentence which results from consideration of the sentence passed in respect of all the offences - whether they be on one or more than one presentment.

27 Second, the learned judge recognised that, at some point, the appellant fell to be sentenced as a serious sexual offender. He did not say when that was, although it was relevant in this case to s 6D(a) and s 6E of the Sentencing Act 1991.[11] In fact, as was agreed in discussion with counsel today, the appellant fell to be sentenced as a serious sexual offender on counts 3 to 6 on the first presentment and on count 1 on the second presentment.

28 Third, his Honour fixed a total effective sentence on the first presentment and then ordered cumulation of part of that sentence on the total sentence imposed on the second presentment, then fixing a second total effective sentence. What needed to be done was to fix one total effective sentence which reflected the end product of consideration of the sentences imposed on both presentments.

29 I would allow the appeal, set aside the sentence imposed in the County Court on 2 November 2007 and in lieu thereof sentence the appellant:

• count 1, to be imprisoned for 12 months;
• count 2, to be imprisoned for 12 months;
• count 3, to be imprisoned for 30 months;
• count 4, to be imprisoned for 18 months;
• count 5, to be imprisoned for 18 months;
• count 6, to be imprisoned for 12 months.

The sentence on count 3 on presentment U00048359 should be the base sentence on that presentment.

30 Having regard to s 6E of the Sentencing Act 1991, I would direct that fifty percent of the sentences on counts 4, 5 and 6 be concurrent with the sentence on count 3. I would also order that six months of the sentences on counts 1 and 2 be cumulated on the sentences imposed on counts 4, 5 and 6 and on count 3. To effectuate what I have said, I would order that six months of the sentence on count 1, six months of the sentence on count 2, nine months of the sentence on count 4, nine months of the sentence on count 5, and six months of the sentence on count 6 be cumulated on each other and on the sentence on count 3.

31 I would further order that six months of the sentence on count 1 on

presentment U00048359.1 be cumulated on the total sentence on presentment U00048359, the total effective sentence then being six years' imprisonment.

32 I would declare that the appellant was sentenced as a serious sexual offender on counts 3 to 6 on presentment U00048359 and as a serious sexual offender on count 1 on presentment U00048359.1.

33 I would confirm the direction given by the learned judge below pursuant to the Sex Offenders Registration Act and the order which his Honour made under s 464ZF of the Crimes Act 1958.

34 I would make a declaration in respect of pre-sentence detention.

35 For the reasons given by my brother Ashley, I agree that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

[1] Contrary to s39(1), Crimes Act 1958 (Vic), maximum penalty 10 years imprisonment.

[2] Contrary to s47(1), Crimes Act, maximum penalty 10 years imprisonment.

[3] Contrary to s321 M, Crimes Act, maximum penalty 10 years imprisonment.

[4] These grounds did not coincide with the grounds upon which the appellant relied in the s 582, Crimes Act 1958 (Vic) application. The Court did not stay to consider the permissibility or otherwise of the appellant relying, on the appeal, upon grounds which differed from the grounds relied upon in the application for leave to appeal. With the agreement of the Crown, it considered the appeal on the grounds ultimately specified.

[5] R v VZ [1998] VSCA 32; (1998) 7 VR 693, 697-698 [12]-[15] (Callaway JA), R v Detenamo [2007] VSCA 160, [26] (Redlich JA), R v Bertrand [2008] VSCA 182, [158]-[160] (the Court).

[7] R v VZ [1998] VSCA 32; (1998) 7 VR 693, 697 [13]-[14] (Callaway JA).

[8] R v VZ [1998] VSCA 32; (1998) 7 VR 693, 697-698.

[9] [2007] VSCA 102; (2007) 16 VR 269.