Sherritt v The Queen [2015] VSCA 1

7 The applicant was born 30 March 1974. He is nine years older than the complainant, who was born 26 April 1983. They have the same mother, but different fathers.

8 Charge 1 on the indictment alleged sexual misconduct 'between the 26th day of April 1988 and the 25th day of April 1989' - when the complainant was aged five years, and the applicant was aged about 14 - and the final charge alleged offending 'between the 26th day of April 1991 and the 25th day of April 1993' - when the complainant was aged eight or nine, and the applicant was aged 17 or thereabouts.

9 During the period of the offending, the applicant and NH lived with their mother and her second husband (NH's father) in Wangaratta, together with their brother, BB, who was born 19 April 1982.

10 When NH was aged five, and the applicant was 14, they were inside the bathroom of the family home. The applicant locked the bathroom door, then placed the bathmat across the shower lip and floor. He lay on his back on the bathmat, and told NH to lie on top of him. The applicant held NH's underarms and shifted her body back and forth on his erect penis (charge 1 - indecent assault). There were other occasions when the applicant did the same.

11 On another occasion when NH was aged five, there was a water fight with neighbourhood children. The applicant told NH to hide in his bed in a bungalow in the backyard of the house. He then came into the bungalow, locked the door, tickled NH and 'humped' her on his bed (charge 2 - indecent assault), similar activities occurring on other occasions. The applicant told NH that their secret was sacred, and that she should not to tell anyone or his love would stop.

12 When NH was aged five or six, the applicant touched her vagina under the water. NH could feel the applicant's erect penis on her body (charge 3 - indecent assault). The applicant told NH to try and kiss his penis under the water. He held her body under the water while she tried to kiss his penis, and forced her face into his groin (charge 4 - attempted indecent assault). NH began to run out of breath and thrashed about, so that the applicant let her go.

13 On one occasion when NH was aged six or seven, and was having a 'sleepover' in the applicant's bungalow, the applicant told her that they were going to play a game without their clothes on. While his penis was erect, the applicant kissed and caressed NH's naked body. He said 'You make me feel so good' (charge 5 - indecent assault). The applicant then told NH to lie down and he 'humped' her, rubbing his erect penis on her vagina. He then put his penis into her vagina, and NH felt pain. The applicant stopped after he ejaculated (charge 6 - sexual penetration of a child under 10). After these events, the applicant put his penis into NH's vagina on other occasions.

14 When NH was aged eight or nine, the applicant told NH and BB that they were going to play a game. They got onto the bottom bunk bed of BB's bed. The applicant told the victim and BB - who was a year older than NH - to get undressed. He then told NH that she had to choose one of them with whom to have sex. She nominated BB, and then sat on top of BB and moved on top of him so that BB's penis went into her vagina. The applicant then said it was his turn. He got on top of NH and put his penis into her vagina while BB watched (charge 7 - sexual penetration of a child under 10).

15 When interviewed by police on 21 January 2011, the applicant said that he had masturbated in front of both NH and BB, but denied other allegations of sexual abuse.

16 Noting the content of the victim impact statement, the judge recognised that the effect of the offending on NH 'has been extremely traumatic and extremely long-lasting'.

17 The applicant was, the judge commented, now 40 years old, with no drug or alcohol problems. Notwithstanding his troubled childhood - which included the dissolution of his parent's marriage on account of his father's alcoholism, and his step-father being afflicted with paranoid schizophrenia - he had a 'very good working history'. Several character referees had described the applicant 'in glowing terms'. The applicant, the judge observed, is 'in a committed relationship with the care of children', and has 'strong family support' from his partner, children, step-children and extended family. He had managed to 'rise above' his difficult childhood to establish a law abiding and stable family and working life.

18 Remarking that the offences 'occurred many years ago', the judge accepted that the fact that the applicant had not committed any offence since then was positive evidence of his rehabilitation. There was no evidence, the judge said, of any 'predisposition' to commit sexual offences at any time since the events which were the subject-matter of the charges.

19 Despite the fact that the applicant did not admit sexual penetration, the judge was satisfied that the applicant made 'some admissions' in the record of interview which, combined with the plea of guilty, were to some degree reflective of remorse. Moreover, the applicant did 'provide an apology of sorts' shortly after the offending, which went 'some way' towards establishing remorse. The judge took into account the plea of guilty for its utilitarian value, and as an expression of remorse and an acceptance of responsibility.

20 Importantly, the judge recognised that the 'real sentencing issue' was that at the time of offending the applicant was 'also a child'. The judge thought that this fact, coupled with the fact that twenty years has elapsed since the date of the last of the offences, 'becomes a very powerful mitigating factor'. Had the applicant been brought before a court when 16 or 17 years old, 'the sentencing regime which would have applied would have been very different'. General deterrence, the judge observed, 'is not a significant sentencing consideration when one is sentencing a child', the 'paramount consideration' when sentencing a child being rehabilitation. Further, the applicant now does not have the benefit of other sentencing dispositions which would then have been available, the only dispositions now available being a sentence of immediate imprisonment or a Community Correction Order. Specific deterrence, the judge was satisfied, was 'irrelevant'.

21 Ultimately, however, even though the applicant was 'immature' at the time of the offending, had 'undergone what appears to be a complete rehabilitation' and is 'genuinely remorseful for the hurt which has occurred to the victim', the judge reached the view that it was not appropriate to impose a non-custodial sentence in relation to charges 6 and 7, they being 'simply too serious'.

22 Although the applicant's counsel acknowledged that the impact of the offending on NH was extremely traumatic and long-lasting, nonetheless it was submitted that the applicant was entitled to significant credit on account of his plea of guilty, since not only did it have utilitarian benefit, but it demonstrated remorse, and a willingness to facilitate the course of justice together with an acceptance of responsibility.

23 Delay, it was submitted, was an important mitigating factor. The applicant was interviewed by police on 21 January 2011, but was not charged until 19 August 2013. He thus had the prospect of prosecution and sentence hanging over his head for several years, precipitating depression for which he had been prescribed medication. Moreover, more than twenty years had elapsed since the offending, during which the applicant had completely rehabilitated himself. He had attracted no convictions during that time. The risk of re-offending was very low. Specific deterrence was thus irrelevant, as was community protection.

24 Further, it was submitted that the applicant was himself a child when the offences were committed, so that he was not a vehicle for general deterrence.[4]

25 In light of these factors, so it was submitted, a custodial sentence was not required. A sentence of imprisonment was not the only appropriate sentence. As was recently made clear in Boulton,[5] a CCO was available for some sexual offences against children.

26 With respect to the CCO itself, it was submitted that the CCO imposed requires that the applicant not leave the State of Victoria without the permission of the Secretary, in circumstances where the applicant resides with his family in Adelaide. Such a requirement may necessitate either his family moving from Adelaide to Victoria, or the applicant being separated from his family for the duration of the order unless the permission of the Secretary be obtained.

27 Finally, it was submitted that to impose a 'punitive' CCO in addition to a sentence of imprisonment 'amounted to an excessive and unjustified punishment upon the applicant', such that appellate intervention was warranted. The applicant ought to be re-sentenced and a lesser sentence imposed.

28 In the course of the plea hearing, the prosecutor submitted that a 'sentence of actual imprisonment would normally be imposed', but that 'this is a special case'. He submitted that 'a community corrections order in the scheme of the whole of the balancing act of this case would not be inappropriate nor would a short term of actual imprisonment', but that it was 'not a case where ... the Crown could say imprisonment is the only available option'.

29 Despite the attitude adopted by the prosecution on the plea, however, in the written case filed in this Court the respondent submitted that 'in all the circumstances the sentences imposed in this case are extremely lenient', and 'could only have been open to [the sentencing judge] on the basis that she gave virtually no weight to the principles of denunciation and general deterrence, while simultaneously giving very substantial weight to all mitigating circumstances'. Leave to appeal, the respondent submitted, should be refused.

30 The respondent drew attention to the fact that Charge 7 involved the sexual penetration of an eight-year-old child by her 17-year-old half-brother, and 'involved a serious breach of trust' in circumstances where there had been 'an escalation in the nature of the offending conduct'. Additionally, group sexual activity involving BB was a significant aggravating factor.[6]

31 Further, the respondent submitted that the applicant had initially denied the offences to police, 'which reflects adversely on his level of remorse at that time'. Moreover, the effect of the applicant's offending on NH has been 'extremely traumatic and extremely long-lasting'. It was pointed out that, as the victim impact statement 'starkly demonstrates', the offending on Charge 7 'has destroyed the victim's relationship with her only full-sibling', and the overall offending has 'also destroyed the victim's relationship with her mother'.

32 Finally, it was submitted that, in light of Boulton,[7] the 'combination sentence' imposed by the sentencing judge was open to her in the proper exercise of discretion.

33 For the purposes of the criminal law, legislation in force during the period of the applicant's offending provided that a 'child' was a person under the age of 17 years at the time of the alleged offending, but who was under 18 years at the time of being brought before the court.[8] Thus, on the assumption that the applicant was under 17 years at the time of the commission of the present offences, had he been charged before he turned 18 years, he would have been dealt with in the Children's Court, and thus would have been subject to a more benevolent sentencing regime than was available to him as an adult. It is, perhaps, unprofitable to assay what disposition the applicant's offending might have attracted had he been dealt with as a child, but it is unlikely that he would have been imprisoned. Indeed, if his offending had attracted a period of detention, it would almost certainly have been spent in a youth training centre[9] - a very different regime to an adult prison.

34 Boland[10] is a case which bears some similarities to the present. In that case the appellant was convicted after a trial of eight counts of indecent assault on his sister, who was aged between six and 12 years when the offences were committed, between 1977 and 1982. At the relevant time, the appellant was aged between 13 and 19 years. Allowing the appeal and re-sentencing the appellant, Nettle JA (with whom Ashley JA and Dodds-Streeton JA agreed) set out the proper approach in cases such as this:[11]

... Decisions of this court in R v Nutter[12] and R v Better[13] recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.

35 With respect, I agree that common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the applicant's moral culpability, must take into account that what was done was done as a child; and that, even absent statutory sanction,[14] general deterrence will ordinarily have a lesser role to play in the sentencing of children than in the case of adults.

36 At the risk of repetition, the applicant committed the offences against his young sister when himself a child. He had, however, overcome a troubled childhood, and led a blameless and productive life for over twenty years. He has a good work history, and has established a stable family environment. He is genuinely remorseful for his offending, and has undergone complete rehabilitation. So much was accepted by the sentencing judge.

37 The reasons for sentence reveal, however, that - understandably so - the sentencing judge was very concerned about the extremely traumatic and extremely long-lasting effects of the applicant's offending upon the complainant, and about the objective seriousness of the offending (particularly on charges 6 and 7). In my

opinion, her Honour must have permitted those considerations to swamp the very significant matters that mitigated the applicant's offending, so that the applicant's youth at the time of the commission of the offences - and thus his moral culpability - and his rehabilitation in the years since, must have been under-valued in the exercise of the sentencing discretion.

38 Given the particular circumstances of this case, I regard the sentence of imprisonment imposed on charges 6 and 7 as being manifestly excessive. That sentence should be quashed. In my view, consonantly with this Court's decision in Boulton, the proper exercise of the sentencing discretion dictated that the applicant should have been sentenced to a CCO on all charges. The applicant has, however, served in excess of three months' imprisonment. That should, in the peculiar circumstances of this case, be seen as significant punishment. In light of that fact, I would set aside that part of the CCO which requires the applicant to perform 200 hours' community work, since to permit that condition to stand would be unduly punitive.

39 For these reasons, I would grant the application for leave to appeal against sentence and allow the appeal. I would quash the sentence of imprisonment on charges 6 and 7. In lieu, I would impose a CCO of two years' duration on all charges, and I would attach a condition that the appellant pay a bond of $500.[15]

40 I agree. I would make the order his Honour proposes, for the reasons which he has given. I wish only to add something in support of the conclusion that the sentence imposed below was manifestly excessive.

41 That is an unusual conclusion, in two respects. First, as the Court has emphasised, manifest excess is a stringent ground and this Court is slow to intervene on the basis that a sentence was not open to the sentencing judge.[16] Secondly, this Court has repeatedly expressed strong views about the community's abhorrence of sexual offending against children.[17]

42 Our conclusion in the present case derogates from neither of those general propositions. It is to be explained by two particular features of this case, as follows.

The first concerns the quite exceptional circumstances of the case, which were identified by the sentencing judge and which Priest JA has described. I refer to:

• the fact that the appellant was a child when he committed these offences. That has a direct and relevant implication for sentencing, because his moral culpability and the need for denunciation are accordingly lessened;
• the fact that 20 years have elapsed since the offending and that the appellant has led a blameless life in that period. That has the consequence, in my opinion, that at the time of sentence, there were very powerful reasons in the interests of the community for not interrupting that exemplary process of rehabilitation by imprisoning him;
• the judge's specific finding that specific deterrence - and, hence, the need to protect the community - were irrelevant. That is most unusual in a case of child sex offending; and
• the fact that, as Priest JA has pointed out, general deterrence has only a limited role to play where the offender is a child. That is so because, as this Court has explained previously,[18] the age of the child may make it inappropriate for him/her to be used as an example to the rest of the community.

43 Those features, taken together, meant that many of the usual sentencing considerations were simply inapplicable. This was, accordingly, a most unusual sentencing exercise.

44 The second aspect of importance is that her Honour did not have the benefit of the guideline judgment about community correction orders in Boulton v The Queen[19], published two months after sentence was passed in this case. As appears from that judgment, it was the basis of the Director's application for guidelines that the potential of the CCO as a sentencing option had not been fully realised. The Director therefore submitted that the Court of Appeal should take the opportunity to spell out ways in which the CCO might be made better use of.

45 Counsel for the present appellant, in a supplementary submission, quite properly relied on what was said by the Court in Boulton, namely, that a CCO is - and should be seen as being - intrinsically punitive, by virtue of the mandatory conditions which are attached. Moreover, the Court said, a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a term of imprisonment.

46 The Court in Boulton emphasised that, if the CCO is to serve the purpose which Parliament quite clearly envisaged for it, sentencing courts (including this Court) need to rethink the conventional wisdom about whether prison is really the only option. The Court was at pains to spell out the grave disadvantages of imprisonment, both for the offender and for the community, and the unique advantages of a CCO in enabling real punishment to be imposed at the same time as advancing the offender's rehabilitation in a way no prison term ever can.

The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.

The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.

In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, 'How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?' As we have endeavoured to explain, that question should mark the beginning, not the end, of the court's consideration.

...

The views we have expressed are reinforced by the recent insertion into the Act of s 5(4C). This provision came into force on 29 September 2014, after the completion of argument in the present proceeding. The new subsection provides as follows:

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.

...

...What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:

(a) the purposes for which sentence is to be imposed on the offender; and

(b) whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.

The process of deliberation which this provision requires should assist in the reconceptualisation of sentencing options to which we have referred. In particular, that process will throw into much sharper focus the distinction we have sought to draw, between the narrow punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO. The sentencing court should ask itself a question along the following lines:

Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?[20]

48 In my respectful opinion, in the light of the Court's analysis in Boulton and the features to which I have referred, it was not open to the sentencing judge to conclude that the applicable purposes of punishment could only be served by a term of imprisonment. On the contrary, in my opinion, this was just the kind of case where no more severe sanction than a CCO was required, or could be justified, in order to satisfy those purposes.

[1] Crimes Act 1958, s 44(1). The maximum penalty is five years' imprisonment.

[2] Crimes Act 1958, s 44(1) and common law. The maximum penalty is five years' imprisonment.

[3] Crimes Act 1958, s 47(1). The maximum penalty is 20 years' imprisonment.

[4] CNK v The Queen [2011] VSCA 228; (2011) 32 VR 641; (2011) 212 A Crim R 173.

[5] Boulton v The Queen [2014] VSCA 342 ('Boulton'), [131].

[6] Reid v The Queen [2014] VSCA 145, [88].

[7] Boulton, [102], [136], [141], Appendix 1 [3].

1. [8] Children's Court Act 1973, s 3(1); Children and Young Persons Act 1989, s 3 (1). The position is different under the current legislation, since, in the case of a person who is alleged to have committed an offence, a 'child' is a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court: see the definition of 'child' in the Children, Youth and Families Act 2005, s 3(1).

[9] The present equivalent being detention in a youth justice centre: see Children, Youth and Families Act 2005, ss 412, 413.

[10] R v Boland [2007] VSCA 242; (2007) 17 VR 300.

[12] Unreported, Court of Appeal, Charles and Callaway JJA and Vincent AJA, 8 November 1995.

[13] [2003] VSCA 71 per Charles, Buchanan and Vincent JJA.

[14] CNK v The Queen [2011] VSCA 228; (2011) 32 VR 641; (2011) 212 A Crim R 173. See Freiberg, A, Fox & Freiberg's Sentencing: State and Federal Law in Victoria (3rd ed), [16.70].

[15] See Sentencing Act 1991, ss.45(1), s 48JA.

[16] Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[17] See, eg, DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 546-7 [54]-[56].

[18] CNK v The Queen [2011] VSCA 228; (2011) 32 VR 641, 645 [12]-[14].

[19] [2014] VSCA 342 ('Boulton').

[20] Boulton [2014] VSCA 342, [113]-[115], [117], [120]-[121].