Szeto v The Queen [2012] VSCA 155

2 On 18 November 2011, the appellant pleaded guilty in the County Court to three charges of committing an indecent act with a child aged 16 or 17 under his care, supervision or authority[1] (Charges 1, 2 and 9) and nine charges of sexual penetration of a child aged 16 or 17 under his care, supervision or authority[2] (Charges 3-8 and 10-12).[3]

3 On 13 December 2011, the appellant was sentenced to six months' imprisonment for each of the charges alleging an indecent act with a child under his authority (Charges 1, 2 and 9), two years' imprisonment in respect of Charges 3, 5- 7, 11 and 12 and three years' imprisonment for Charges 4, 8 and 10. It was directed that one month on each of Charges 2, 3, 6 and 9, three months on each of Charges 5, 7 and 11 and six months on each of the Charges 8, 10 and 12 be served cumulatively upon the sentence imposed on Charge 4, resulting in a total effective sentence of five years and seven months' imprisonment. A non-parole period of three years was fixed.[4]

4 On 22 March 2012, Harper JA granted the appellant leave to appeal against sentence on the ground that the sentences of three years' imprisonment imposed on

Charges 4, 8 and 10 are inconsistent with those of two years' imprisonment imposed on Charges 3, 5-7, 11 and 12. The second proposed ground was that the sentences imposed on Charges 4, 8 and 10, the directions for cumulation, the resulting total effective sentence and non-parole period are manifestly excessive and in breach of the principle of totality. Harper JA, while refusing leave to appeal on this ground, granted leave to appeal on the ground that the sentencing judge erred in cumulating six months (rather than three months) of the sentence on Charge 12.

5 The facts giving rise to this appeal began on 21 April 2009 and ceased on or about 6 July 2009.[5] The appellant was 48 years old and the part owner of a restaurant. The complainant was an employee at the restaurant and was 16 when the offending commenced but had turned 17 by the time it ceased.

6 At various times on 21 April 2009, the appellant sexually assaulted his victim. He began that morning by kissing her, touching her breasts, neck and face, and - after exposing his erect penis - physically forcing the complainant to fondle it (Charge 1). He then rubbed the complainant's vagina, first outside and then inside her clothes (Charge 2). Early that afternoon, the appellant dragged the complainant into the female toilets and inserted his penis into her vagina, once when seated and once when standing. It seems that this intercourse was unprotected, because the applicant ejaculated onto (rather than into) the complainant (Charge 4). That evening, after the restaurant had been emptied of customers and other staff, the applicant used a condom to penetrate the complainant's vagina as she lay on her back on the floor (Charge 5).

7 Late in the evening on or about 27 April 2009, after the complainant had finished her shift, the appellant locked the door of the restaurant and turned off the lights. After removing all of her and his clothing, he inserted his penis into her vagina whilst she was on her back on the floor in the dining area (Charge 7). Whilst she was still on the ground he licked and penetrated her vagina for a period of three to four minutes (Charge 6). He again inserted his penis into her vagina, causing her pain (Charge 7).

8 On the way home from the evening shift on or about 8 June 2009, instead of driving the complainant directly home, the appellant parked somewhere near her house in the dark and, in the back seat of the car, removed her work pants and underwear and inserted his penis into her vagina causing her pain. The appellant continued penetrating her for approximately three to five minutes before ejaculating inside her vagina (Charge 8).

9 On 22 June 2009 when driving the complainant to work after picking her up at around 9:30 am the appellant grabbed her hand and made her rub his penis over his clothing. During the complainant's shift at about 11 am the appellant called her to the counter area, made her do the same thing for approximately one minute before she walked away (Charge 9). Late that evening, after the appellant and the complainant had returned from driving an employee home, the appellant again locked the doors and, after removing all of his and her clothes, lay on top of her on the floor in the dining area and inserted his penis into her vagina, moving up and down for about ten minutes before ejaculating inside her vagina (Charge 10).

10 On or about 6 July 2009 and whilst driving her home late at night, the appellant drove past her house and parked near some factories. After removing her work pants and underwear and his own, he guided her head towards his erect penis and penetrated her mouth with his penis for a few minutes, holding her head and pushing it up and down (Charge 11). The appellant then lay on top of her and inserted his penis into her vagina and moved up and down for about ten minutes. Afterwards he drove her home (Charge 12).

11 The prosecution accepted that the acts were consensual.[6] During the plea hearing, counsel for the prosecution proposed a total effective sentence of eight to ten years with a non-parole period between six to eight years. Counsel for the appellant submitted that the offending was mid-range and that the range proposed by the prosecution was too high.

12 The appellant contended that the sentences of three years' imprisonment imposed upon him on Charges 4, 8 and 10 are inconsistent with each other and with those of two years' imprisonment imposed on Charges 3, 5, 6, 7, 11 and 12. The appellant submitted that the only difference in the circumstances of Charge 3 from that of Charge 4 was that the latter involved ejaculation (albeit on rather than in the complainant) whereas that in the former did not. Ejaculation was an aggravating feature of Charges 8 and 10 but that was ejaculation which occurred while the penis of the applicant remained within the complainant's vagina.

13 The appellant submitted that 'it cannot be that the judge attributed [the difference between the charges attracting a three year sentence and those attracting a two year sentence] to the use of a condom because 'no such protection was used in the instances of penile-vaginal or penile-oral penetration in Charges 3, 7, 11 or 12'.

14 The respondent submitted that the sentencing judge was entitled to regard the appellant's ejaculation on the complainant and inside her vagina, and his failure to use a condom, as aggravating the offending in Charges 4, 8 and 10. The respondent argued that the appellant's conduct demonstrated a disregard for the complainant's welfare and exposed her to the risk of a sexually transmitted disease or the prospect of pregnancy. In addition, the respondent submitted that even if the Court considered that too much weight was given to the fact of ejaculation, the individual sentences imposed on Charges 4, 8 and 10 were nonetheless within the range in all of the circumstances.

15 At the plea hearing, defence counsel agreed that the lack of use of a condom and ejaculation into the vagina of the complainant was an aggravating feature for some charges:[7]

HER HONOUR: And we have got a lack of a condom used, too, on a number of occasions and ejaculation, penis to vagina.

[DEFENCE COUNSEL]: Yes, all of those things and I said those facts are agreed and not disputed.

...

[COUNSEL FOR THE CROWN]: Your Honour has already highlighted - and I can provide an authority that Your Honour is aware of in relation to this - the failure to use a condom. It is the matter of R v. Khem [2008] VSCA 136; 186 A.Crim.R 465 at para.18 which briefly provides: "It is clear that an offender's failure to use a condom can be treated as an aggravated circumstance in cases where penile vaginal penetration occurs".

HER HONOUR: I think that is conceded; is that right, Mr Dunn?

[DEFENCE COUNSEL]: It is.

16 In her reasons for sentence, the sentencing judge stated that she considered the lack of use of a condom as aggravating:

The offending is aggravated by the fact that you ejaculated inside her without using a condom and took no precautions against the risk of pregnancy or sexually transmitted diseases, demonstrating a disregard for her welfare.[8]

17 Contrary to the appellant's submissions, no evidence was led (nor did the appellant admit) that no condom was used in the instances of penile-vaginal or penile-oral penetration in Charges 3, 7, 11 or 12. Thus, even though the sentencing judge did not explain how she arrived at each individual sentence, she might rightly have assumed in favour of the appellant that protection was used in these instances. On the other hand, in relation to the instances of penile-vaginal penetration in Charges 4, 8 and 10 (the charges which attracted three-year prison terms), it can be concluded that no condom was used, given the evidence that the appellant either ejaculated on the complainant (Charge 4) or inside her vagina.

18 The appellant submitted that 'there was no risk of pregnancy and less chance of sexually transmitted disease in the offence in Charge 4 (because there was no internal ejaculation)' and that therefore, the sentence of three years on Charge 4 was inconsistent with the sentences on the other charges of sexual penetration. However, this Court has held that even where no internal ejaculation occurs, sexual intercourse without use of protection shows a disregard for the complainant's welfare and exposes the complainant to a risk of sexually transmissible diseases. In R v Cleary, Bongiorno JA found that penetration without a condom was an aggravating factor:[9]

... This finding [that the applicant had ejaculated inside the complainant on one occasion during penile vaginal penetration] clearly exacerbated the moral culpability of the applicant in the mind of the sentencing judge. Although not enunciated in his Honour's reasons, it might be inferred that he took the view that the ejaculation inside the victim demonstrated a disregard for her welfare over and above that necessarily implied from the commission of the offence itself. It demonstrates a disregard for the risk of pregnancy and perhaps other adverse consequences for her health and wellbeing. On this basis the heavier sentence imposed by the sentencing judge can be readily understood. The undisputed fact that the applicant had unprotected intercourse with [the complainant] should perhaps have been expressed by his Honour as bearing upon the applicant's moral culpability.

... the disregard for the wellbeing of [the complainant] inherent in the act of exposing her to a risk of pregnancy and/or disease must be weighed against any benefit to which he is entitled as a result of his expression of concern [that the complainant consented to the intercourse]. The applicant's having ejaculated on the bed, as is now accepted by this Court to have been the fact, must have somewhat reduced the risk to [the complainant] but it certainly did not eliminate it. The applicant's embarking upon a course of action involving, inter alia, premeditated sexual intercourse with a child under 16 was a serious offence. Doing so without taking any realistic precautions must put an even more serious complexion on his moral culpability for such an offence.

19 In R v Cleary, the sentencing judge had sentenced the appellant upon the erroneous basis that he had ejaculated inside the complainant's vagina whereas it later became clear that he ejaculated onto the bed.[10] Winneke P concluded that, given that the sentencing discretion was reopened (due to another sentencing error), the appellant should be sentenced to two rather than three years for said offence.

20 In R v Khem, Neave JA (with whom Pagone AJA agreed) held that even where no sexual penetration occurs, unprotected genital contact increases the risk of sexually contracted diseases and may be considered a 'significant aggravating feature':[11]

It is clear that an offender's failure to use a condom can be treated as an aggravating circumstance in cases where penile-vaginal penetration occurs. [12] In my opinion her Honour did not err in treating the failure to use a condom as an aggravating factor, in sentencing the appellant for attempted sexual penetration.

If necessary I would be prepared to take judicial notice of the fact that there is a risk that a number of sexually transmissible diseases, including genital herpes and genital warts, can be transmitted by genital contact falling short of penile penetration. There has been extensive community education on this issue.

21 Based on the above considerations, no inconsistency between the sentences imposed on Charges 8 and 10 (which involved internal ejaculation) can be perceived. Notwithstanding that ejaculation relating to Charge 4 occurred outside the complainant's vagina, the fact that intercourse occurred without protection (and that ejaculation occurred onto her body) showed disregard for the complainant's welfare and dignity, exposed the complainant to a significant risk and may be considered an aggravating feature justifying a higher sentence. Even assuming that the risk of pregnancy or sexually transmitted diseases is lower in case of external ejaculation and that this difference might be reflected in a lower sentence, the sentence on Charge 4 should still be higher than those imposed on Charges 3, 7, 11 or 12 where no ejaculation (internal or external) occurred and where it must be assumed that protection was used.

22 I do not consider that the failure to impose a lesser sentence on Charge 4 than those imposed on Charges 8 and 10 constitutes a sentencing error - no such fine delineation between those charges was required. However, as appears below, on a re-sentencing as a result of upholding ground 2, I would make an adjustment to the sentence imposed on Charge 4.

23 Leave to appeal was also granted on the ground that the sentencing judge erred in cumulating six months of the sentence on Charge 12.

24 In his reasons for granting leave to appeal on said ground, Harper JA held:[13]

I do not think that the principle of totality has been breached. The total effective sentence was, in my opinion, within range. The only point at which this ground might arguably succeed (although there is an argument that the ground does not cover the point) is that her Honour erred in cumulating six months of the sentence on Charge 12. The sentence on that charge was two years' imprisonment. In the other instances in which a two year sentence was pronounced, the period of cumulation was three months. Cumulation of six months was otherwise restricted to the two charges (apart from the fourth, the base sentence) for which a sentence of three years was imposed - those being Charges 8 and 10.

25 During the appeal hearing, counsel for the appellant also submitted that her Honour had erroneously proceeded on the assumption that the offences occurred on nine rather than five separate days,[14] which may have led her to order more cumulation than she otherwise would have imposed.

26 The respondent submitted that the orders for cumulation were within the range in the circumstances of this case, stating that 'while some cumulation was appropriate, having regard to the number of episodes of offending and the operation of the serious sexual offender provisions, the learned sentencing judge imposed moderate orders for cumulation.'

27 Her Honour correctly summarised the circumstances to which the appellant had pleaded guilty and which occurred over five days in April, June and July.[15] In her 'further sentencing considerations', however, the learned sentencing judge erroneously stated that 'the offences occurred over 3 days in April, 4 days in June and 2 days in July 2009'.[16] Her Honour then explained her orders for cumulation:[17]

... I have applied the principle of totality explained by the High Court as requiring a sentence that is a just and appropriate measure of the total criminality involved.[18] I have applied the method in sentencing for multiple offences guided by Mill v R[19] and also followed what Ormiston JA said in Grabovac[20] about fashioning an appropriate total effective head term in relation to a series of offences in order to avoid the imposition of a 'crushing' sentence. I have considered proportionality.

However the 'serious offender' provisions, s.6E of the Sentencing Act 1991 provide for a presumption of cumulation and the High Court has observed that these provisions have the effect of moderating the principle of totality and that is in R H. McEl v. R.[21]

28 The three-year sentences (imposed on Charges 8 and 10) attracted six months' cumulation but not all of the sentences of two years (apart from the sentence for Charge 12) attracted three-months' cumulation. For Charges 3 and 6, the sentencing judge ordered one month's cumulation. Her Honour did not explain precisely how she calculated cumulation but it appears that one-month's cumulation for Charge 6 was justified given that it occurred during the same incident/course of conduct as Charge 7 (for which 3 months' cumulation was ordered). Similarly, Charge 3 occurred during the same incident/course of conduct as Charge 4 (in the restaurant's toilet) which may have led her Honour to order less cumulation.

29 It is not apparent why six months was cumulated in relation to the sentence imposed on Charge 12. One explanation may be the length of the penal penetration (this is the only occasion other than Charge 10 where penetration lasted for about ten minutes). However, that is speculation. I regard the six months' cumulation in relation to Charge 12, in the absence of explanation, to have been clearly erroneous. I would therefore uphold ground 2.

30 In light of the foregoing, I would re-sentence the appellant in the way he was sentenced by the sentencing judge but with the following principal variations. I would make the sentence on Charge 8 the base sentence, make the sentence on Charge 4 two and a half years' imprisonment and cumulate four months of that sentence, and I would cumulate a period of four months' imprisonment in relation to Charge 10 and three months' imprisonment in relation to Charge 12. That would result in a total effective sentence of five years and I would fix a non-parole period of two years and six months. The full details of the re-sentencing are set out in the following table:

[Crimes Act 1958 s 49(1)]

[Crimes Act 1958 s 48(1)]

Seven years' imprisonment, with a non-parole period of four years

[1] Section 49(1) of the Crimes Act 1958 (Vic) provides that '[a] person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority' (5 years maximum).

[2] Section 48(1) of the Crimes Act1958 (Vic) provides that '[a] person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority' (10 years maximum).

[3] In this case, the serious sexual offender provisions applied from the third conviction forward. Pursuant to s 6B(2) Sentencing Act 1991, the serious sexual offender provisions apply if a sentence of imprisonment is imposed on two qualifying offences and the offences with which the appellant was charged are all qualifying offences. The prosecution did not assert that a disproportionate sentence under s 6D Sentencing Act 1991 was required in these circumstances and the sentencing judge accepted that proposition: DPP v Szeto (Unreported, County Court of Victoria, Judge Thornton, 13 December 2011) ('Reasons for Sentence'), [4].

[4] The sentencing judge stated pursuant to s 6AAA of the Sentencing Act that, but for the plea of guilty, she would have imposed a total effective sentence of seven years and nine months' imprisonment, with a non-parole period of four years and six months years.

[5] This summary is based on Harper JA's Leave Reasons paras [1]-[7] and the Reasons for Sentence para [7].

[6] The sentencing judge noted that, while the prosecution accepted that all sexual acts were consensual, it alleged that after the first day on which the appellant sexually penetrated the complainant and she had trouble walking after he had driven her home, the fact that he told her that she should not demonstrate any difficulty walking and that if she disclosed any of the sexual activity that he would have her dismissed was part of the assessment of the circumstances in which consent came to be given for the future occasions. The judge concluded that 'the complainant's consent must be considered in the context of these circumstances in which it came to be given.' Reasons for Sentence, [33].

[7] Transcript of Plea Hearing, T 30 and 37.

[8] R v Cleary [2004] VSCA 14 , [17]; R v Khem [2008] VSCA 136; [2008] 186 A Crim R 465, [18].

[9] [2004] VSCA 14, [17]-[18] (emphasis added).

[10] [2004] VSCA 14, [10].

[11] [2008] VSCA 136; [2008] 186 A Crim R 465, [18]-[19] (emphasis added). Ashley JA, dissenting on this point, held that attempted penetration without a condom showed a disregard for the complainant but that the aggravating nature of such disregard, in the context of the particular offence, could not be other than small: [13]-[14].

[12] R v Magner [2004] VSCA 202, [63] (Gillard AJA); R v MMK [2005] NSWCCA 369, [117] (Grove J).

[14] Referring to Reasons for Sentence, [45].

[15] Reasons for Sentence, [5]-[12].

[17] Reasons for Sentence,[45]-[46].

[18] Postiglione v R[1997] HCA 26; (1997) 189 CLR 295,307-8 (McHugh J) See also 321 (Gummow J), and 340 (Kirby J).

[19] (1968) 166 CLR 59, 63.

[20] DPP v Grabovac [1998] 1 VR 664, 680.

[21] RH McL v R ([2000] HCA 46; 2000) 203 CLR 452, 476-477 [76].