R v X B [2009] VSCA 51

2 There are, in substance, two grounds of appeal. First that the learned judge wrongly determined that the case was an appropriate one in which to impose a disproportionate sentence;[3] and that she then proceeded to impose such a sentence without alerting counsel to her intention. So, it was submitted, counsel had no opportunity by making submissions about the matter, and thereby the appellant was denied procedural fairness. Second, that the individual sentences imposed on counts 2 and 11 were manifestly excessive.

3 Counsel for the Crown conceded, appropriately, that the judge erred in respect of each aspect of what I have called the first ground of appeal. But counsel also contended that, although the sentence was 'stern', it was within the permissible range; for which reason the sentence should be affirmed. Counsel for the appellant submitted, to the contrary, that upon a re-sentencing a lesser sentence ought be imposed on counts 2 and 11, and that a lesser total effective sentence and non-parole period should be fixed.

4 The offences were committed in the period between 1 March 2006 and 12 February 2007.

5 There was a single victim of the child sexual offences - BG, the daughter of the appellant's sister-in-law. She was aged between 10 and 11 years at the relevant time.

6 The offences occurred on three separate occasions, on each of which the child was left in the appellant's care. On the first occasion, the appellant inserted his finger into her vagina whilst she was sitting on his knee under a blanket (count 1, sexual penetration). On the second occasion, when the complainant was in the same bed as the appellant and his wife, he put his hands under her pyjama pants and rubbed her buttocks (count 2, indecent act), inserted his finger into her vagina (count 3, sexual penetration), and put his penis against her vagina but without inserting it (count 4). On the third occasion, whilst and after the appellant had shown the victim pornographic images on his computer screen, he pushed his penis against her vagina but without inserting it (count 5, indecent act), pressed his penis against her buttocks (count 6, indecent act), inserted his penis into her mouth (count 7, sexual penetration), inserted his tongue into her vagina (count 8, sexual penetration) and inserted his finger into her vagina whilst rubbing his penis (count 9, sexual penetration).

7 Following complaint to the police, the appellant's premises were searched on 12 February 2007, two days after the events the subject of counts 5-9. Some 30,000 pornographic images and movie clips were found on computer disks belonging to the appellant. About a third of this material depicted young females. Many of the pornographic and movie clips depicted women, dressed as school age students, having sex (count 11, possess child pornography).

8 Amongst the many images, there were 20 of the complainant and her younger sister, naked, or partly so. Also found at the appellant's home were a number of A4 pages on which were printed stories of sex with or between young children. One of the stories had been written by the appellant. The 20 images and the fantasy written by the appellant were relied upon at the plea as providing the foundation for count 10 (producing child pornography). But, as will be seen, counsel for the respondent conceded on the appeal that the story and most of the photographs did not satisfy the definition of child pornography.

9 The learned sentencing judge imposed the following sentences:

Count 1 (sexual penetration), 3 years' imprisonment, base sentence;

Count 2 (indecent act), 2 years and 6 months' imprisonment, 6 months cumulated;

Count 3 (sexual penetration), 3 years and 6 months' imprisonment, 9 months cumulated;

Count 4 (indecent act), 2 years' imprisonment, 6 months cumulated;

Count 5 (indecent act), 2 years' imprisonment, 6 months cumulated;

Count 6 (indecent act), 2 years' imprisonment, 6 months cumulated;

Count 7 (sexual penetration), 3 years and 6 months' imprisonment, 9 months cumulated;

Count 8 (sexual penetration) 3 years and 6 months' imprisonment, 9 months cumulated;

Count 9 (sexual penetration), 3 years and 6 months' imprisonment, 9 months cumulated;

Count 10 (produce child pornography), 3 years' imprisonment, 6 months cumulated;

Count 11 (possess child pornography), 2 years and 6 months' imprisonment, 6 months cumulated.

The total effective sentence was, as I have noted, calculated by her Honour to be 9 years' imprisonment; and her Honour fixed a non-parole period of 6 years.

10 The complainant, as I have said, was a girl aged between 10 and 11 at the time when the offences in counts 1-9 were committed. Victim impact statements made by the girl and her father, and reports provided by the Gippsland Centre Against Sexual Assault and the Department of Human Services showed the serious and continuing consequences of the assaults upon the victim and her family. Not only was the victim traumatised, investigation of the offences led to her being removed from her mother's care into the care of her father and step-mother; a situation which had a number of unhappy social consequences.

11 The appellant, a man born 17 February 1963, was aged 43 at the time of offending. He had no prior convictions.

12 The appellant was married and had three children. After the instant offences were detected he was obliged to leave the marital home.

13 The appellant was in steady employment as a tutor in computers at the time of offending. His prior work record had been reasonable.

14 The appellant's offending was characterised as paedophilic. Material before the sentencing judge showed that he accepted this characterisation, that he accepted that he needed treatment and assistance, and that he was keen to undertake the sex offender's program whilst in prison.

15 The judge concluded that there were signs of remorse - the appellant's early plea of guilt, his acknowledgement of the impact of his offending, and his keenness to undertake the sex offender's program.

16 The judge accepted that the appellant's offending was opportunistic, rather than one in which the victim was groomed. But her Honour nonetheless, and understandably, regarded the offences as having been serious. Although not stated in the connection, the judge referred to manipulation of the opportunities for offending presented to the appellant, the 'range of types of offences' committed, and the period over which the offences were committed.

17 In my opinion, the appeal should be allowed and a different sentence passed. The following matters tend in favour of that conclusion.

18 First, the learned judge erred, as was conceded, in imposing what she intended to be a disproportionate sentence. It would be at least surprising if a sentence which was intended to be disproportionate turned out to be, colloquially, 'within the range'.

19 Second, as I mentioned earlier, counsel for the appellant did not take issue with the individual sentences imposed, other than the sentences on counts 2 and 11. She submitted that each of those sentences was manifestly excessive.

20 I consider that the attack on the sentence passed on count 2 was well-founded. The period of imprisonment imposed was greater than the sentences imposed on the other counts of indecent act. Yet those other sentences purportedly reflected the application of s 6D(b) of the Sentencing Act. Further, the conduct the subject of count 2 was, I think, a good deal less serious than the conduct the subject of those other counts.

21 I turn to the sentence passed on count 11. It was 50 per cent of the maximum penalty of 5 years' imprisonment. The appellant possessed a very large collection of pornographic images and movie clips, many of which depicted children. Whilst the sentence was stern, I am not prepared to conclude that it was outside the range of sound sentencing discretion.

22 On the hearing of the appeal, however, a new problem emerged. Count 10, as I have said, alleged that the appellant 'made or produced child pornography namely photographs and publications'. At the plea hearing, reliance was placed on the 20 photographs of the complainant and her sister; and upon the sexual fantasy written by the appellant. But on the appeal, counsel for the respondent conceded that only six of those 20 photographs, five of them being of the complainant and one being of her sister, satisfied the definition of child pornography in s 67A of the Crimes Act 1958. Only two of those photographs were of an overtly sexual character. They were unlike many of the photographs which were the subject of count 11 and which depicted children engaged in various ways in sexual activity. Neither the pornographic photographs which the appellant produced nor the text of his sexual fantasy had been disseminated to others via the internet or otherwise. Counsel for the respondent further accepted, applying R v Quick,[4] that the text of the appellant's fantasy did not constitute a 'publication' within s 67A of the Crimes Act and therefore was not child pornography as defined.

23 The maximum penalty for the offence of producing child pornography is 10 years' imprisonment. A sentence of 3 years' imprisonment was imposed on that count. While the judge had discriminated, in an apparently logical way, between the seriousness of the offences comprehended by counts 10 and 11, her Honour did not have the benefit of any argument which elucidated the very limited extent to which the appellant had produced any child pornography. On the appeal, and after the issue had been ventilated, counsel for the respondent conceded that the sentence imposed on count 10 could not be justified and that the appellant should be re- sentenced on that count. Nothing that I have said about count 10, however, means that the sentence passed on count 11 was not open.[5]

24 Third, I consider that there were problems in the actual sentence passed. The true extent of the problems cannot, however, be ascertained.

25 The judge selected as a base sentence the sentence passed on count 1, which was a lesser period of imprisonment than the sentence imposed on each of counts 3, 7, 8 and 9. It would have been better that the base sentence had been the sentence imposed on count 7, that being the first count of sexual penetration arising from the third and most serious incident of sexual interference. Counsel for the appellant argued, I think with some force, that had that the sentence on that count been selected as the base sentence, there would naturally have followed a cumulation of sentences which addressed the criminality involved within each of the three incidents, as well as the appellant's overall criminality. He argued that, in the way in which the learned judge had approached the matter, there had been an almost mechanical, and ultimately unsatisfactory, process of cumulation. It had yielded a total effective sentence fitting the worst possible case - which, he submitted, this case, bad and all as it was, was not.

26 Next, s 6E of the Sentencing Act prescribes that every term of imprisonment imposed on a serious offender for a relevant offence must be served cumulatively except if the judge otherwise directs. But the judge cumulated part of the sentence imposed on each of counts 3 to 11, in respect of which the appellant fell to be sentenced as a serious sexual offender, as well as part of the sentence on count 2. A sentence in that form will only be permissible if it reflects the intended consequences of a 'direction otherwise'. In the present case it is impossible to know from the judge's sentencing remarks whether the sentence did reflect such an intention. One can only presume that the end result achieved what her Honour intended.

27 Bearing in mind the various circumstances to which I have referred, including the fact that the appellant must be sentenced as a serious sexual offender on counts 3 to 11, I consider that the following individual sentence should be imposed:

28 I would take the sentence on count 7 as the base sentence.

29 I would cumulate 9 months of the sentence on count 1 and 3 months of the sentence on count 2 on each other and on the sentence on count 7.

30 I would direct that 23 months of the sentence on count 3, 14 months of the sentence on count 4, 15 months of the sentences on counts 5 and 6, 26 months of each of the sentences imposed on counts 8 and 9, 8 months of the sentence on count 10 and 24 months of the sentence imposed on count 11 be served concurrently with the sentence otherwise resulting from the part cumulation of the sentences on counts 1 and 2 on the sentence on count 7. I would express the consequences of that direction, and of the part cumulation of the sentences on counts 2 and 3, this way: order that 9 months of the sentence on count 1, 3 months of the sentence on count 2, 10 months of the sentence on count 3, 4 months of the sentence on count 4, 3 months of each of the sentences on counts 5 and 6, 10 months on each of the sentences on counts 8 and 9, 4 months of the sentence on count 10 and 6 months of the sentence on count 11 be cumulated on each other and on the sentence on count 7. The total effective sentence is 8 years and 2 months' imprisonment.

31 I would fix a non parole period of 5 years and 6 months' imprisonment.

32 I would declare that the appellant was sentenced as a serious sexual offender on counts 3 to 11.

33 I would confirm the ancillary orders made below.

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

[1] Indecent act with or in the presence of a child under 16, contrary to s 47 Crimes Act 1958, maximum penalty 10 years' imprisonment. Sexual penetration of a child under 16, contrary to s 45(2)(b) Crimes Act, maximum penalty 15 years' imprisonment.

[2] Produce child pornography, contrary to s 68 Crimes Act, maximum penalty 10 years' imprisonment. Knowingly possess child pornography, contrary to s 70 Crimes Act, maximum penalty 5 years' imprisonment.

[3] Sentencing Act 1991, s 6D(b).

[4] [2004] VSC 270; (2004) 148 A Crim R 51.

[5] R v Propsting [2009] VSCA 45 is a recent instance of a man sentenced for possession and production of child pornography. The circumstances of that case illustrate the sure fact that the circumstances of offending and offenders so differ from one case to another that use of bare sentencing statistics as a guide to sentencing is fraught with difficulty.