S S v The Queen [2013] VSCA 68

Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958]

Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958]

Sexual penetration of a child under 16 years [s 45 of the Crimes Act 1958]

Sexual penetration of a child under 16 years [s 45 of the Crimes Act 1958]

Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958]

Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958]

Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958]

Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958]

Sex Offenders Registration Act 2004

3 NL was the victim of all charges. He was born on 30 April 1991 and was aged either 10 or 11 at the time of the offending, all of which occurred in the early part of 2001.

4 The applicant owned and operated a business called 'Funtastic Gymnastics' in Berwick. As a ten year old NL was enrolled there to attend weekly classes. NL's parents had difficulty in picking him up from the gymnasium and an arrangement was made for the applicant to take him home after his class.

5 NL attended classes until the end of 2002. The offending on charges 1 to 8 occurred on one occasion of relatively brief duration. One day after the above arrangement started, NL and the applicant were alone in the gymnasium. The applicant locked the premises, and turned the lights off. He told NL to sit on the floor which he did. After obtaining some tissues, the applicant came and sat next to him.

6 The applicant began to masturbate with his penis out over the top of his pants (charge 1). He then began to masturbate NL by putting his hand down the front of NL's pants (charge 2).

7 The applicant then placed NL's penis in his mouth (charge 3). NL told him that he did not like it. The applicant told NL it was all right and that nobody would know. The applicant then pulled NL towards him and placed his penis in NL's mouth. That was only for a brief period before NL pulled away (charge 4). The applicant started to masturbate himself again after NL moved away (charge 5). The applicant said to NL 'now it's your turn' and placed NL's hand on the applicant's penis and started moving it up and down (charge 6). The applicant then masturbated himself to ejaculation (charge 8).

8 On a later occasion the applicant, in the presence of NL, ejaculated onto his hand and began to lick the semen. He offered his hand to NL telling him to try it (charge 9).

9 At trial the applicant gave evidence denying the charges. Evidence of uncharged acts relating to similar behaviour on four or five other occasions was led.

10 In relation to charges 4 and 5 NL was under the care, supervision and authority of the applicant and the maximum penalty for these offences therefore became 15 years (otherwise 10 years).

1. imposing individual sentences on charges 1, 2, 5, 6, 8 and 9; and

b) making orders for cumulation; and

c) imposing a non-parole period

which are, in all the circumstances, manifestly excessive.

12 Each sentence is complained about and, although not expressed in these terms, the head sentence and non-parole period are said to be manifestly excessive. That manifest excess it is argued comes about as a result of her Honour's orders for cumulation. That was particularly so in the circumstances of this case where the conduct of the first seven charges had occurred over about a ten minute period.

13 In particular, complaint was made about a total of six months' cumulation relating to charges 1, 5 and 8 and about the cumulation of 12 months between charges 3 and 4, particularly given that the conduct alleged on charge 4 was very brief. In argument, counsel for the applicant conceded that the individual sentences on charges 2, 6 and 9 and the orders for cumulation on these counts were within the range.

14 The applicant fell to be sentenced as a serious sexual offender after the convictions on charges 1 and 2. That opened the possibility of the imposition of a disproportionate sentence which her Honour later properly disavowed. She was still obliged to regard the protection of the community as the principal purpose of sentencing. There was also a prescription in favour of cumulation. The effect of sentence was to allow for substantial concurrency even on charges 4, 5, 6, 8 and 9 for which the applicant was a serious sexual offender.

15 Separate argument was advanced relating to the non-parole period, particularly given the matters put on the plea which were accepted by her Honour.

16 The applicant was aged 35 at the date of sentence. He was 24 or 25 at the time of the offending. He had no prior convictions, and nothing subsequent. He had been involved in gymnastics from an early age and eventually made it his career. He conducted a program visiting schools but about 10 or 11 years ago started Funtastic Gymnastics in Berwick. The business had about 500 enrolled students. Other events involving children were conducted there. Evidence was given at the plea that the applicant was highly regarded and that the offending was out of character. Her Honour had regard to the applicant's good record and to the fact that he had not been in prison. She accepted that any prison term would have a significant detrimental effect upon the applicant

17 Her Honour regarded general deterrence as an important feature of sentence. The prosecutor submitted a range of 6 to 7½ years,[1] with a nonparole period of between 4½ and 5½ years. Her Honour sentenced well below that so called range.

18 The sentence structure can be seen from the table in paragraph two.

19 It was the respondent's submission that the sentences are within the range both individually and as to the head sentence and non-parole period.

20 Counsel pointed out, in answer to the applicant's complaint, that a total of six months had been imposed on the self-masturbation charges (charges 1, 5 & 8), that the applicant was a serious sexual offender for charges 5 and 8 and that and there was a presumption in favour of accumulation. It was also submitted that after charge 3 the applicant was clearly aware of NL's reluctance to participate in any sexual activity.

21 Her Honour set out to achieve a just sentence. It is possible that she might have achieved the same result by different paths. The total cumulation of only 8 months for charges 2 and 6, involving the applicant masturbating NL and forcing NL to masturbate him, can be seen as moderate. I do not regard that degree of cumulation as being anything particularly out of the ordinary for a total of four years relating to the two sexual penetration charges which carried a maximum of 15 years.

22 In this case NL had submitted a Victim Impact Statement which her Honour summarised as follows:[2]

Exhibit 1 is a victim impact statement from [NL], which was read aloud to the court this morning. I have had regard to that statement, to the extent that it is relevant and admissible for my purposes in sentencing you today. It is a vivid account of the very real effects of this type of offending, noting of course that attribution is always difficult in hindsight. [NL] details the effect of your offending which, it seems, has rippled through his life. He finds it hard to sleep and has intrusive thoughts as regards these events. The effects are not surprising and would or should have been appreciated by you at the time of your offending.

23 These offences involved a gross abuse of trust. While it is true that most of them were committed within a very short period of time, the evidence of uncharged acts would lead to the conclusion that the offences for which the applicant fell to be sentenced were not isolated.

24 I am satisfied that the individual sentences, the head sentence and the nonparole period were, and are, within the range.

25 I would dismiss the application for leave to appeal.

[1] Yet another example of figures which do not constitute a range.

[2] DPP v [S S] (Unreported, County Count of Victoria, Judge Hannan, 12 October 2012), [7]