Criminal division – sentencing

11.17.1 Sexual abuse

In R v PFG [2006] VSCA 130 at [61] the Court of Appeal said:

“Children must be protected from sexual abuse by adults who are entrusted with their care. Incest often permanently scars its victims emotionally and psychologically. The offence also corrodes human relations. It is an attack upon the family and thus upon a singularly important social institution.”
In DPP v HRA [2012] VSCA 88 at [23] Maxwell P said:

“Questions of general deterrence and denunciation are overwhelmingly important, as this Court has so often said, where child sex offending is concerned. Such is the continuing frequency of serious child sex offending by persons, like this applicant, who hold positions of trust that there is a continuing need for stern sentences.”

However in R v RGG [2008] VSCA 94 at [3] Ashley JA sounded a note of caution in sentencing for child sexual offences:

“There is an ever-present danger, I think, when a person is to be sentenced for child sexual offences, that lip service and nothing more will be paid to matters going in mitigation. In this case, there were substantial mitigatory circumstances.

And in R v CLP [2008] VSCA 113 at [24] Neave JA noted:

“Weight should also be given to an admission of sexual offences because it may help the victims to recover from the harm caused to them, particularly where, as in this case, the abuse occurred within a family and was kept secret by each of the daughters for many years.”

In R v Dibbs [2012] VSCA 224 at [2] Harper JA said:

“The fair, even-handed and compassionate administration of criminal justice according to law is as difficult as any aspect of civilised governance. And, of all the myriad forms of wrongdoing of which humankind is capable, sexual misconduct presents difficulties in its detection, punishment and restorative aspects which are as problematic as any that confront the criminal courts. This case, although by no means as complicated as some, illustrates the point.”

In his joint judgment with Beach AJA in PG v The Queen [2013] VSCA 9 at [3]-[5]& [8]-[9], Harper JA expanded on this theme:

[3] “Allegations of sexual misconduct, especially if the accused is a close family member, are…in a class of their own. They not only often contain at least the seeds of tragedy, but also commonly pose problems of almost impossible difficulty. Frequent among these are multiple allegations of serious offending over many years – offending which is often said to have occurred not only long ago, but also when the victim was too young or too traumatised to remember specifics such as dates and places. Even where neither youth, nor a mind affected by trauma, nor any like factor, adversely affects the memory, details may be hard to recall. The more frequently offending occurred, the more will one episode tend in the mind of the victim to blur into another; but this circumstance could also be exploited by theunscrupulously mendacious complainant to serve as a smokescreen for an inability to provide detail which, because (on this hypothesis) the allegations are false, does not exist. And not only do delays in disclosure cause problems in themselves for both prosecution and defence (and therefore also for the courts), but the victims not unusually have difficulty in explaining not so much the initial failure to report offending shortly after it is alleged to have occurred, but why allegations are made when they are made.

[4] It is facile and quite wrong, but all too easy, to approach these allegations with preconceptions, such as (for example) that embodied in the nostrum that accusations of sexual misconduct are easy to make but difficult to defend. On the contrary, their making must frequently involve an extraordinary resolve born of considerable courage, or desperation, or both. Sometimes, on the other hand, false allegations spring from malicious dishonesty.

[5] When the allegations are true, the sexual assaults which gave rise to them will be likely to have caused severe, perhaps irreparable, damage to the life of the victim. Where they are untrue, an innocent accused may suffer the unimaginable distress of being convicted of a crime or crimes the mere thought of which the particular accused may find abhorrent. And there is often no easy means for the impartial fact-finder to distinguish between the two possibilities, even though (or sometimes because) guilt must be proved beyond reasonable doubt…

[8] Regardless of the result of the legal process, the allegations once made have necessarily had a profound effect on all involved. When sentencing the appellant following his conviction, the trial judge described, with undoubted accuracy, the effect on the appellant’s family (of which, of course, the appellant himself was once an integral part). It was, as her Honour said, ‘devastating’. For the appellant, this manifested itself in the severance of former family bonds and the prospect of many years in prison. For his daughters and wife, if their victim impact statements be accepted, the consequence has been and will doubtless continue to be years if not a lifetime of anguish. Some of the damage is irreparable, no matter what the ultimate result of the proceedings in court.

[9] The fundamental importance of the courts doing everything possible to reach the correct result nevertheless remains. When the positions taken by the protagonists are diametrically opposed, however, the certain identification of the truth is sometimes unattainable. In the circumstances presented by cases of this kind, it is beyond the capacity of any human institution to get it right every time.

11.17.1.1 Sexual abuse in a family setting

In R v MKG [2006] VSCA 131 Chernov JA said at [10]:

“The crime of incest is abhorred by the community. As Batt JA said in R v VZ [1998] 7 VR 693 at 699, it is a repugnant offence that strikes at the core of the family relationship and involves the breach of trust and the dereliction of protective duties. Furthermore, in this case, the young complainant had to endure the appellant's unnatural conduct towards her for almost 15 months. And the fact that the three counts were representative counts constitutes an aggravating factor, as was recognised in R. v. SBL [1999] 1 VR 706. That the appellant abused his parental position of moral superiority and trust in relation to the complainant cannot be sufficiently emphasised. Instead of protecting his young daughter, he did her serious harm. Moreover, the sentencing principles of general deterrence, denunciation and just punishment assumed considerable importance in this case.”
In R v GMT [2006] VSCA 13 the offender had maintained a sexual relationship with his daughter which commenced in 1989 when the daughter was 3 years old. In holding that a sentence of 9 years with a non-parole period of 6 years was not manifestly excessive, Charles JA, with whom Vincent JA & Mandie AJA agreed, said at [20]:

“The appellant's offending occurred over a lengthy period, the count alleging almost seven years. It was submitted by Ms Cannon for the Crown, quite rightly, that the appellant's acts were persistent, repulsive and unnatural; that he exploited the victim, who was his natural daughter; that he subordinated her, both physically and psychologically, to his demands and acts; and that she suffered, and continues to suffer, from the consequences of his offending. By his actions the appellant breached the trust placed in him as the father of a young girl, and his offending was very serious and merited condign punishment. In this case, factors of particular importance in sentencing included general deterrence, denunciation, and punishment and retribution. As Hedigan AJA said in R v Ware [1997] 1 VR 647 at 653 with the agreement of Winneke P and Hayne JA:

‘The courts have had occasion more often than they would care to remember, particularly in the last decade, to consider matters raised by these cases involving both the interests of young persons and societal interests in protecting them by the detection and punishment of this type of crime, which strikes at the familial roots of civilised society.’ “
In DPP v EB [2008] VSCA 127 the victim was the respondent’s natural daughter who was aged between five and seven at the time of the offences. The Court of Appeal replaced a sentence of 9½y on 8 counts of incest with a sentence of 11y but did not alter the non-parole period of 7y. Nettle JA (with whom Buchanan & Redlich JJA agreed) said at [16]:

“The risk of re-offending was, therefore, not insignificant, and, as McHugh J put it in R v Ryan (2001) 206 CLR 267, 304 [126]–[128] {in diss but not on this point}, the persistently punitive attitude of the community towards sexually deviant crimes mandates that, even if long sentences do not deter paraphilic offenders or others with similar inclinations, they may at least have the effect of putting them in a place where they cannot harm others for the time being.”

In DPP v CPD (2009) 22 VR 533; [2009] VSCA 114 the accused had pleaded guilty to two counts of sexual penetration of a 3 year old girl and two counts of sexual penetration of a 1 year old girl. One of each of the counts was a representative count. He also pleaded guilty to a representative count of committing an indecent act with a 6 year old girl (making her touch his penis) and a representative count of committing an indecent act with the 3 year old girl (touching her vagina). He was 38 at the time of the offending, 42 at the time of sentence. He had met the girls’ parents at parenting classes in 1996 and they had become good fiends. On occasions, CPD would baby-sit the children of the family. He had been sentenced to IMP2y6m/15m. On DPP appeal this was held to be manifestly inadequate and he was sentenced to IMP6y/4y. At [18] Maxwell P, Redlich JA & Robson AJA said:

“It is indeed deeply disturbing that children so young should have already had to endure such suffering and should have had their emotional development so seriously compromised. The effect on the victim, particularly in offences of this kind, is recognised as a significant sentencing consideration. In DPP v DJK [2003] VSCA 109 [17]–[18], which concerned sexual offences against a child, Vincent JA spoke of the important part played by victim impact statements in achieving

‘what might be termed social and individual rehabilitation … of those persons who have sustained loss and damage by reason of the commission of an offence. …

The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.’

Eames JA agreed at [30] that, in sentencing, the interests of the victims and the consequences to them of the criminal conduct were matters of particular importance.”

Table C to the judgment in DPP v CPD summarises 26 appeals against sentence for sexual penetration of a child under 10. The highest sentence for a single count is 8y: R v SSG [1998] VSCA 94. Table D summarises 9 appeals against sentence for incest. It was the view of the Court of Appeal that “the offence of incest may be viewed for present purposes as being cognate with the offence of sexual penetration of a child under 16, at least where the offender holds a position of trust and has responsibility for looking after the victim(s).”

In R v OAA [2010] VSCA 155 the applicant had pleaded guilty to five counts of incest. He was sentenced to IMP9y6m/7y on the basis that certain counts were representative in nature. The Crown conceded that one of the counts was not truly representative. The applicant was re-sentenced to IMP9y/6y6m. Maxwell P & Weinberg JA said at [37]:

“Insofar as current sentencing practices for offences of this kind are concerned, these are usefully dealt with in Sentencing Snapshot Number 43 [produced by the] Sentencing Advisory Council. The median total effective term of imprisonment for the offence of incest during the period 2002-3 to 2006-7 seems to have been of the order of six years, with a non-parole period of four years. Individual counts of incest have tended to draw sentences of about four years. The single heaviest total effective sentence for incest recorded in this Snapshot was 15 years’ imprisonment, with a non-parole period of 11 years.”

Their Honours said at [42]:

“The principles which govern sentencing for crimes of this nature committed against a child are well established. Such offending is viewed most seriously. The reason for that approach was explained by Hedigan AJA in R v Ware [1997] 1 VR 647 at 653, where his Honour said {in a passage cited with approval in R v Bellerby [2009] VSCA 59 at [41]}:

‘A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable damage to the victim.’”
In R v PDA [2010] VSCA 94 the Court of Appeal found no error in a sentence of 7y3m with a non-parole period of 3y10m on six ‘rolled-up’ counts of sexual acts against a 15 year old girl which occurred during one or more of seven episodes in the period October 2006 to April 2007. At [19]-[20] Maxwell P (with whom Buchanan JA agreed) said:

“As this Court said in DPP v DDJ [2009] VSCA 115, [51], it is a very serious matter when an older man takes advantage, as this appellant did, of a vulnerable younger girl who is crying out for help. It is close to unthinkable, in my view, that a man of 37 with daughters of his own could convince himself that the right way to respond to a plea for help from a girl threatening suicide was to have sex with her. The repetition of sexual abuse only made it worse. This was a man who, by his own admission, knew that what he was doing was wrong. Yet he kept going back for more sexual encounters. When interviewed, he seemed wholly unable to acknowledge that it was his own sexual interest which made him keep returning.”

In R v FD [2011] VSCA 8 the appellant had pleaded guilty to eight counts of incest, one count of attempted incest and two counts of false imprisonment involving biological daughters. He was sentenced as a serious sexual offender to IMP16y/13y. The Court of Appeal agreed with the sentencing judge that the abuse was “appalling”. At [5] Redlich & Weinberg JJA continued:

“It was aggravated by the breach of trust involved, the age of the complainants, and the fact that the offending took place in the presence of both of them. The impact upon the victims had been profound, and was potentially immeasurable. The children had each filed victim impact statements accompanied by assessments by specialist sexual assault counsellors. In A’s case, she was demonstrating behavioural problems described as withdrawal, anxiety and sleep disturbance. In B’s case, there were indications of similar unsettled behaviour, including sleep disturbance, fear and aggression.”

However the Court of Appeal held that the individual sentences and the total effective sentence were “significantly out of kilter with current sentencing practice in this State”. Hence the sentence was manifestly excessive. The appeal was allowed and the appellant was re-sentenced to IMP12y/9y.
Annexure B to the judgment in R v DJ [2011] VSCA 250 contains a table of 36 cases heard by the Court of Appeal between 1983 & 2011 that involved sentences for incest. Table B includes for each case the individual sentences, the total effective sentence and non-parole period, the age of the offender, the duration of the offending and a summary of mitigating and aggravating factors. Annexure C includes a table of 17 cases heard by the Court of Appeal between 2002 & 2011 that involved sentences for incest where force, violence or threats were involved or where there was pain or lack of consent but no violence. In R v DJ at [5]-[6] Maxwell P (with whom Weinberg & Harper JJA agreed) said:

“[T]he judge spoke in the strongest terms about the gravity of this offending… I respectfully agree. This Court has repeatedly emphasised the seriousness of the crime of incest: see DPP v CPD (2009) 22 VR 533, 546–7 [54]–[56] and the cases there cited. This case was undoubtedly made the more serious by the respondent’s use of force in the ‘primary incident’ under count 2, and by his having acted ‘in spite’, that is, to punish his daughter for what he judged to be her refusal to participate in family events.”

And at [26] the Court of Appeal concluded:

“Although this appeal by the Director failed, it does provide this Court with the opportunity to restate – emphatically – that in a case of incest (or other sexual offending against a child), the use of threats or coercion or actual force, and any punitive feature of the offender’s motivation, should be regarded as very significantly increasing the offender’s culpability for what is in any case a very serious crime. Such aggravating factors should be clearly reflected in the sentence imposed.”

In R v PDI [2011] VSCA 446 at [83]-[84] the Crown conceded that a sentence of IMP 18y6m/15y ordered on a number of counts of incest and other sexual offences committed against the applicant’s eldest daughter from the age of 8 or 9 to 17 was “quite inconsistent with current sentencing practice for multiple offences of incest, even allowing for the fact that the matter was contested and the appalling features of the applicant’s wrongdoing”. The Court of Appeal said: “This case fell within the worst category of offending for the offence of incest.” Nevertheless, having regard to FD v The Queen [2011] VSCA 8, [19]–[29], DPP v HPW [2011] VSCA 88, MP v The Queen [2011] VSCA 78, DPP v OJA & Ors (2007) 172 A Crim R 181, 195 [29] (Nettle JA), DPP v BJD [2009] VSCA 298, NJD v DPP [2010] VSCA 84, OAA v The Queen [2010] VSCA 155 & DPP v CPD (2009) 22 VR 533, the Court of Appeal reduced the applicant’s sentence to 15y/10y6m.
In R v ED [2011] VSCA 397 Robson AJA (with whom Redlich & Harper JJA agreed) said at [86]:

“This Court has consistently held that sexual offending against children is a matter of utmost seriousness: DPP v DDJ [2009] VSCA 115, [36] (Maxwell P, Vincent and Neave JJA); DPP v DJ [2011] VSCA 250. The maximum penalty of 25 years for the offence of maintaining a sexual relationship with a child under the age of 16 years reflects the gravity with which the community views sexual crimes against children: R v Macfie [2000] VSCA 173, [49] (Winneke P and Chernov JA with whom Brooking JA agreed); DPP v DDJ [2009] VSCA 115, [36] (Maxwell P, Vincent and Neave JJA).”

After quoting from DPP v DDJ at [37]-[38] Robson AJA continued at [88]: “In DPP v VH (2004) 10 VR 234, 237–238 {see also DPP v DAK [2004] VSCA 175, [33]–[35]} Callaway JA (with whom Buchanan and Eames JJA agreed) said that ‘the sexual abuse of children by persons in a position of trust is intolerable.’” See also DPP v Stalio [2012] VSCA 120 where the Court of Appeal upheld a sentence of IMP 5y4m/3y8m in respect of 10 charges of sexual assault involving five girls under the age of 16 between February 1974 and late 1983 by an accused described as “a trusted neighbour and, in some cases, a trusted work colleague of the father of the victim”.
In R v RSJ [2012] VSCA 148 the offences of incest were committed over a period of 28 years against the one complainant M who is the appellant’s eldest daughter. The offending commenced in 1977 when M was aged 13 and the appellant was 34 and concluded in 2005 when M was aged 40 and the appellant was 62. The offending was sustained, repeated, accompanied by violence and threats and occurred despite M’s ongoing disclosures and pleas to social workers and others. As a result, M bore four children to the appellant, in 1990, 1998, 2000 and 2001. The youngest child died in infancy. The eldest two children suffer from intellectual disabilities, while the third child receives ongoing speech therapy and has difficulty with social interaction. Although he was aged 69 at the time of sentence, thr trial judge imposed a sentence of IMP 22y5m/18y. Dismissing the appeal, the Court of Appeal said: “The facts and circumstances of the offending are of such a despicable and deplorable nature that the case falls in the worst category of such cases.”
In PG v The Queen [2013] VSCA 9 the accused had been found guilty of 9 counts of indecent assault and 4 counts of sexual penetration of a child under 10. The complainants were the two eldest of his 3 daughters who alleged that he had sexually molested them in their early childhood. In upholding a sentence of 8y/6y2m, Harper JA & Beach AJA (with whom Maxwell P agreed) said at [102]-[103]:

“There are many obligations of parenthood. Those persons who have relevant expertise will also have a greater claim than judges to give detailed consideration to these; but about one obligation there can be no doubt. Parents must refrain from the knowing infliction of unnecessary harm upon their children. The appellant was criminally in breach of this fundamental duty. The gravity of his offending is of particular importance in deciding upon the appropriate sentence.

This is not the occasion to attempt to allocate degrees of seriousness to the crimes a parent might commit against his or her child. It is enough to observe that the sexual penetration by the parent of that child is a total repudiation of not only the high obligation of trust which ought necessarily to adhere to the relationship between the two, but also of the respect which every person, but especially a parent, owes to the psychological integrity of everyone else, especially his or her children.”
In Ling Seng Soo v The Queen [2014] VSCA 304 the appellant had pleaded guilty to 2 counts of committing an indecent act with a child under 16 and 2 counts of producing child pornography. He was sentenced to IMP5y/3y. The appellant was aged 58 at the time of the offending, and 60 when sentenced. The complainant was a girl aged six when the offences occurred. The appellant and his wife knew the complainant and her parents through a local community group and for a period of about 18 months prior to the offending had looked after the complainant on Sundays while her parents worked. The appeal was dismissed. At [30]-[32] Santamaria JA (with whom Weinberg & Whelan JJA agreed) said:

“In an appendix to these reasons, there is an analysis of the cases which the appellant submitted are ‘comparable’ to the present case.

As will become evident, the fact that each of those cases may have involved an act which was physically similar to the act forming the basis of Charge 3 does not make those cases relevantly ‘comparable’ as explained in Hudson (2010) 30 VR 610.

There is a further consideration which must be taken into account. In some cases, a judge may have determined a separate sentence in respect of each count or charge before addressing questions of cumulation and totality: DPP (Vic) v Grabovac [1998] 1 VR 664, 680 (Ormiston JA with whom Winneke P and Hedigan AJA agreed). In other cases, where there has been sentencing for multiple offences, the ‘moderate and cumulate’ approach has been followed: R v Izzard (2003) 7 VR 480, 484–6 (Callaway JA with whom Winneke P and Vincent JA agreed). Neither approach is mandated: See the discussion in DHC v The Queen [2012] VSCA 52 (Weinberg JA with whom Maxwell P and Buchanan JA agreed). But, the possibility that one approach has been used rather than the other is a further reason for questioning whether two sentences for an indecent act with a child under 16 are truly comparable.”

The cases in the appendix to which Santamaria JA referred are: R v McDonald [2004] VSCA 196; IRJ v The Queen [2011] VSCA 376; HRJ v The Queen [2011] VSCA 217; Bavage v The Queen [2012] VSCA 149; JBM v The Queen [2013] VSCA 69; O'Brien (a pseudonym) v The Queen [2014] VSCA 94; SLJ v The Queen [2013] VSCA 193; CMG v The Queen [2013] VSCA 243; SD v The Queen (2013) 229 A Crim R 580.
Other cases involving child sexual abuse in a family setting include R v VN [2006] VSCA 111; R v Lewis [2006] VSCA 272; DPP v DL; DPP v CB [2006] VSCA 280; R v BGJ [2007] VSCA 64; R v DP [2007] VSCA 219; R v DD (No 2) [2008] VSCA 15 per Neave JA at [14]-[15] & [21]-[24]; R v Bowen [2008] VSCA 33; R v GLH [2008] VSCA 88; DPP v RAL [2008] VSCA 140 esp at [25]-[27]; R v JF [2008] VSCA 243; R v RLP [2008] VSC 381 at [22]-[26]; R v NJD [2010] VSCA 84; R v MG [2010] VSCA 97 at [93]; R v Barry Hall [2010] VSCA 349 with reference to Ibbs v The Queen (1987) 163 CLR 447; R v Davy [2011] VSCA 98; R v TC [2011] VSCA 190; R v RBN [2011] VSCA 261; R v LQ [2011] VSCA 135; PRW v The Queen [2011] VSCA 381; DLJ v The Queen [2011] VSCA 389; DPP v DPC [2011] VSCA 395; R v FC [2012] VSCA 22; R v CGT [2012] VSCA 23; R v AWP [2012] VSCA 41; R v MA [2012] VSCA 214; R v DM [2012] VSCA 227; DPP v SJ [2012] VSCA 237; DPP v DRS [2012] VSCA 276; R v ISJ [2012] VSCA 321; BM v R [2013] VSCA 3; DPP v CJA [2013] VSCA 18; Martin v The Queen [2013] VSCA 377 esp at [111]; Wallace Cummins (a pseudonym) v The Queen [2014] VSCA 352; McDonald v The Queen [2014] VSCA 80 at [81]-[83]; Christopher Avery (a pseudonym) v The Queen [2014] VSCA 86 at [118]-[120]; Morgan v The Queen [2014] VSCA 303; George Bussell (a pseudonym) v The Queen [2014] VSCA 310.