Criminal division – sentencing

11.17.4 Other sexual offending against children

In R v Richardson [2008] VSCA 7 the appellant had pleaded guilty to six counts of sexual penetration of a child under 16. The offences had been committed in one 24 hour period against two 14 year old school girls whom the 31 year old appellant had met at a railway station. The Court of Appeal held that a sentence of 6y6m/5y was manifestly excessive and substituted a sentence of 3y6m/27m.

In R v James & Witbeck [2010] VSCA 341 the 45 year old applicant had pleaded guilty to two counts of committing an indecent act with or in the presence of a 16 year old child. The Court of Appeal held that a sentence of 21m of which 12m was suspended was not manifestly excessive.
In R v Maurice [2011] VSCA 197 the 31 year old applicant – who lived 50 metres away from the victim’s house – had entered the bedroom of a sleeping 10 year old child with the intention to commit indecent assault. He pleaded guilty to one count of aggravated burglary and one count of sexual penetration of a child under 16. He was sentenced to 7y imprisonment on the first count and 5y imprisonment, of which 2y was cumulative, on the second count. A non-parole period of 7y was set. The Court of Appeal held that the 9y/7y sentence was not manifestly excessive.
In DPP v HRJ [2011] VSCA 217 the 74 year old accused – who was a next-door neighbour of the 3 to 4 year old victim – was found guilty of two counts of committing an indecent act with a child under 16 years. He had rubbed the inner thigh of the victim and licked her vagina. He received a total effective sentence of IMP 3y2m/18m. Leave to appeal was refused. The sentence was not manifestly excessive and there was no error in the sentencing judge’s refusal to suspend the sentence.
In R v Griffin [2011] VSCA 304 the 34 year old accused was found guilty of two counts of sexual penetration of a child under 16. The victim was a 14 year old girl in school uniform who attended at the accused’s home, was given both alcohol and a pill and then agreed to have oral sex in exchange for cannabis. After that incident she began playing with a gaming device in the lounge room. Her evidence was that at that stage her intoxication was such that she could not even stand up whereupon the applicant proceeded to have sexual intercourse with her. He received a total effective sentence of IMP 5y6m/3y6m. Leave to appeal was refused.
See also R v NJ [2012] VSCA 256; DPP v Macfie [2012] VSCA 314; R v Chatterton [2014] VSCA 1; McPherson v The Queen [2014] VSCA 59.

11.17.5 Relevance of consent in sentencing for unlawful sexual activity with a child

In R v Clarkson; R v EJA [2011] VSCA 157 a 5-member Court of Appeal (Maxwell ACJ, Nettle, Neave, Redlich & Harper JJA) discussed the relevance of consent in sentencing for the offences of:

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  sexual penetration of a child under the age of 16 [s.45 Crimes Act 1958];
  

• 
  committing an indecent act with or in the presence of a child under 16 [s.47].
  

For neither of these charges is consent a defence.

Their Honours approved a number of judgments of the English Court of Appeal and various Australian courts, especially the Western Australian Court of Criminal Appeal. They noted at [54]-[62] that their approach was consistent with the course of decisions in the Victorian Court of Appeal, including R v Nguyen (2001) 124 A Crim R 477 at 481-2; R v Magner [2004] VSCA 202 and R v Jongsma (2004) 150 A Crim R 386. They concluded at [8] that “to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.”

In reaching this conclusion, their Honours noted in their summary at [2]-[7]:

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  The absolute prohibition on sexual activity with a child is intended to protect children from the harm presumed to be caused by sexual activity before the age when a child can give meaningful consent and to that end protect them from their own immaturity: R v G [2009] 1 AC 92; R v Williams (1990) 53 SASR 253, 254; Marris v The Queen [2003] WASCA 171 at [12]; Simon v Western Australia [2009] WASCA 10 at [23].
  
• 
  ‘Consent’ for this purpose has its statutory meaning of ‘free agreement’, but is broad enough to include instigation and encouragement, as well as willing participation or co-operation: R v Woods (2009) 195 A Crim R 173 at 185. References to ‘consent’ in the judgment should be understood as having the connotation of ‘apparent’ or ‘ostensible’ consent.
  
• 
  A child’s consent can never, of itself, be a mitigating factor. Proof that a child consented will not, of itself, differentiate the case for sentencing purposes from one where the child’s consent cannot be established. However, proven absence of consent significantly increases the seriousness of the offending and the culpability of the offender.
  
• 
  Proof that the child consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.
  
• 
  Typically, the giving of the consent will be a reflection of the relationship between the child and the offender: Riggall v Western Australia (2008) 37 WAR 211. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases – for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner – the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater. At the other end of the scale, there are exceptional cases – for example, in a relationship between a 15-year-old girl and an 18-year-old boy – where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.
  

The Court also noted at [52]-[53] that is open to an offender to seek to demonstrate, to the requisite standard of proof, as to which see R v Storey [1998] 1 VR 359, that the sexual activity in question did not have (or is unlikely to have) the harmful impact on the victim which the law presumes it to have. It added that independent expert evidence to that effect would ordinarily be essential and that rebuttal of the presumption is likely to succeed only in very limited circumstances.

Applying these principles, the Court of Appeal dismissed appeals against sentences of:

• 
  IMP 7y/4y on Clarkson (aged 41 at the time of the offences) who had pleaded guilty to 4 counts of sexual penetration of a child under 16 and one count of committing an indecent act with the same child, a 15 year old who was a friend of his 2 step-daughters; and
  
• 
  IMP 2y6m/1y6m on EJA (aged 31 at the time of the offences) who had been acquitted of 5 counts of incest but in respect of one incident had pleaded guilty to the statutory alternative of committing an indecent act in the presence of his 12 year old step-daughter.
  

In A D A v Bruce & Anor [2011] VSC 338 the 16 year old accused had pleaded guilty to three charges of sexual penetration of a 14 year old child. The prosecutor concluded the summary by stating that the accused says that he believed there was consent to the acts in issue but that was not accepted by the victim or the prosecution. Counsel for the defence submitted that applying the principles of R v De Simoni (1981) 147 CLR 383, the Court could not sentence on the basis of aggravating features which constituted evidence of the more serious offence of rape. Subsequently the prosecution filed two charges of rape in relation to the same incident. This occurred prior to the decision of the Court of Appeal in R v Clarkson. On the appeal, the accused and the informant accepted that the original sexual penetration charges provide an adequate vehicle for the resolution of the Crown case against the accused if the principles articulated in Clarkson are applied to it and they agreed that the rape charges should be struck out upon completion of sentencing on the sexual penetration charges. At [16] Osborne J summarized the relevant evidentiary principles deriving from R v Clarkson. At [17] his Honour said:

“It follows from these principles that in the present case the further resolution of the sentence hearing will require either: (a) further and better agreement of the facts; or (b) evidence of aggravating circumstances from the Crown; or (c) acceptance by the Crown that in the absence of further evidence it cannot rely on aggravating circumstances which are in issue and have not been proved beyond reasonable doubt.”

11.17.6 Physical abuse

In DPP v Ripper [2006] VSCA 282 the Court of Appeal allowed a DPP appeal against a sentence of 2 years imprisonment with a non-parole period of 1½ years on one count of recklessly causing serious injury and increased the sentence to 4½ years with a non-parole period of 2½ years. The victim was a 5 year old child who had suffered multiple injuries to many parts of his body. The respondent admitted 270 prior convictions and 27 prior findings of guilt from 32 previous court appearances between 1994 & 2004, including 7 counts of assault. At [22] King AJA, with whom Vincent & Nettle JJA agreed, said-

“The courts have an obligation to protect children from harm, be it physical sexual or psychological. Accordingly, sentences in cases of this kind should send a message which is clear and unequivocal. As Tadgell JA put it in R v Thompson [unreported, Court of Appeal, 21/04/1998, pp.7-8]: ‘The courts must do what they can to send to the community a message of crystal clarity that conduct of this kind is intolerable in a civilised society.’ Save for the most unusual circumstances, the infliction of serious injury on young defenceless children will be visited with condign punishment.”

11.17.7 Causing death

In DPP v Arney [2007] VSCA 126 the defendant had pleaded guilty to one count of recklessly causing serious injury and one count of manslaughter caused by his punching of his 5 month old daughter, not as an isolated incident arising from a momentary loss of self control, but one of a number to which the respondent admitted. The killing thus involved a degree of deliberation which is lacking in most cases of this kind, the defendant having admitted that he had deliberately punched his daughter in the abdomen so that the injury would not be detected by others. In allowing the appeal, the Court of Appeal accepted the DPP’s categorization that the case “was at the worst end of the spectrum of unintentional homicide by a parent of his or her child, and that accordingly it warrant ed a sentence of considerably more than the 7 years imprisonment which was imposed”. A nine year sentence was substituted on the manslaughter count. The total effective sentence was 11y with an 8y non-parole period.
At [15] Nettle JA said:

“In sentencing offenders in cases of the kind with which we are concerned, it has been common for courts to refer to the gross breach of trust which is involved in the offence and to speak in terms of the need for a sentence which is adequate to express society's abhorrence and denunciation of homicidal offences against defenceless children, and which will provide a level of just punishment and specific and general deterrence sufficient to guard against re-offending and similar offending by others.”

At [20] Vincent JA said:

“I agree, and specifically wish to associate myself with the views expressed by Nettle JA concerning not only the abhorrence with which the conduct of the respondent is to be considered, but also the importance of vindicating the values of this community and the rights of a dead child. It is deeply saddening to have to accept that any human being could engage in the kind of abuse that led to the death of a five-month-old infant in this case.”

In R v McMaster [2007] VSC 133 the defendant pleaded guilty to manslaughter of his partner’s 5 year old son by inflicting severe abdominal injuries. In sentencing him to 12y6m imprisonment with a 10y non-parole period, Harper J said at [33]-[34]:

“This was a killing the nature and gravity of which can hardly be over-emphasised. You were in a position of trust, and of power. You abused both, at the cost of a young child’s life. The act of standing over a five year old child who is seated on the ground, and then partially standing on his abdomen or pushing your feet into his stomach, with such force as to do fatal damage to his abdominal cavity, is one that - even when seen outside the brutal context in which it took place - is of itself utterly abhorrent.

All life must be protected. Because of their vulnerability, young lives demand special measures to ensure their safety. The death of a child as the result of an assault by a mature adult in the context of a sustained period of abuse is an affront to any civilised community. One measure open to the courts is to impose sentences that will act as a general deterrence to those who might be tempted to abuse the young and powerless. The systematic cruelty to which you subjected Cody is absolutely and unequivocally intolerable. In my opinion, the appropriate sentence on the count of manslaughter is twelve years and six months’ imprisonment.”

On appeal in DPP v McMaster [2008] VSCA 102, describing the reasons of Harper J as “exemplary” and in the course of detailing 12 reasons why an appeal by the DPP should be dismissed, Ashley JA (with whom Lasry AJA agreed and Neave JA grudgingly agreed) said at [5]:

“[I]n R v AB (No.2) [2008] VSCA 39 this Court upheld a sentence for a provocation manslaughter of 15 years imprisonment…[G]iving AB full weight and recognising the awful crime which McMaster committed, I find it difficult to see how the learned judge could have imposed a sentence in excess, or at least significantly in excess, of that which he in fact imposed. Counsel for the Director, faced with the obligation of showing that the sentence was inadequate to the extent necessary to enable the appeal to succeed, submitted that his Honour ought to have imposed a sentence of 15 years’ imprisonment or upwards. Having regard only to the mitigating circumstance constituted by the plea of guilty, counsel’s submission implied that if McMaster had been convicted of manslaughter after a trial at which he had pleaded not guilty, the sentence should have been something in the order of 17 – 18 years. Not even in a case of provocation manslaughter such as AB has such a sentence, it seems, been imposed.”
In R v D’Aloisio [2006] VSC 216 a father who was suffering from an obsessive compulsive disorder and an obsessive compulsive personality disorder pleaded guilty to manslaughter of his 6 week old son by assaulting him. Eames JA said at [5]:

“Your mental illness, however, is not the whole explanation for your conduct. By your plea, you admit that when you assaulted your son you knew the nature and quality of the acts you were performing, and that they were wrong. The expert evidence confirms that awareness on your part. As your counsel frankly acknowledged, the death of a defenceless child is among the most serious of the categories of the offence of manslaughter, and he accepted that a significant sentence of imprisonment was inevitable, notwithstanding your mental illness.”

In R v Farquharson [2010] VSC 462 Lasry J imposed a sentence of life imprisonment with a non-parole period of 32 years on a 41 year old man who had been found guilty – at a second trial – of murdering his three children aged 10, 7 & 2 by driving them into a dam in a staged motor vehicle accident. His Honour said at [3] that “the tragedy of this case almost defies imagination” and that “these were crimes committed against three vulnerable, helpless and wholly innocent children”. His Honour held at [15] that “the reason or reasons why you determined to murder your three children were connected with the separation between you and your wife in November 2004”.
In R v Acar [2011] VSC 310 Curtain J imposed a sentence of life imprisonment with a non-parole period of 33 years on a 24 year old offender who had pleaded guilty to one count of murdering his 3 year old daughter when acting out of spite and revenge directed at his child’s mother. An appeal against sentence was dismissed: [2012] VSCA 8.
In R v Freeman [2011] VSCA 214 Maxwell P affirmed a sentence of life imprisonment with a non-parole period of 32 years on a 37 year old man who had pleaded not guilty to one count of murdering his 4 year old daughter by throwing her off Westgate Bridge. In the course of sentencing [2011] VSC 139 Coghlan J had described the killing as involving “a most fundamental breach of trust and…an attack on the institution of the family which is so dear to the community” and had found that it was related to the accused’s “increasing anger towards [his] former wife over the Family Court proceedings”. See also R v Freeman [2011] VSCA 349.
In R v Ta Vuong [2014] VSC 574 after a 20 day trial the 29 year old accused was found guilty of the murder of his partner’s 12 month old infant. He had maintained that the infant’s death was accidental but the jury had accepted confessional evidence from two prison informers. The accused’s expression of remorse over the child’s “accidental death” was held by Emerson J to be irrelevant in the sentencing exercise for murder. In sentencing the accused to IMP 25y/20y her Honour said at [51]:

“The murder of Silas Leithhead was brutal. It took place while you were entrusted with his care and involved a gross breach of trust. You used this tiny, dependent and defenceless child to vent your anger towards his mother. Punishment and general deterrence are important in sentencing in this case, as is specific deterrence.”

11.18 Sentencing of adults for offence against protective worker
In R v Gibson [2006] VSCA 258 the Court of Appeal imposed a sentence of 9 months imprisonment in respect of a charge of threatening to inflict serious injury on a protective worker. The defendant’s children were in the custody of DOHS. The defendant had not had access to his children for 3 months as a consequence of the protective worker being on sick leave, causing the defendant to become increasingly resentful and distressed. When the worker ultimately returned to work she called the defendant to arrange access. During that phone conversation the defendant lost his temper and said: “I’m going to come down there and cut your head off.”

Produced by Reserve Magistrate Peter Power for the Children's Court of Victoria

Last updated 22 January 2015 11.