The Bill represents the government’s first step to fulfil its election commitment to bring sentencing practices and sentencing law into line with community expectations. Under a heading entitled ‘Increased Custodial Sentences’, the then Attorney-General explained that the Bill provided ‘for two categories of offenders who will receive increased custodial sentences’ – ‘serious sexual offenders’ and ‘serious violent offenders’. The Bill made two mechanisms available to the courts ‘to ensure those offenders receive the sentences expected by the community’: removing both categories of offender from the ambit of the provision requiring the court to take into account the abolition of remissions in sentencing in order to ‘have the effect of consistently and uniformly increasing the custodial sentences for serious sexual and violent offenders by 33 per cent’; and directing the court, once it has decided that a custodial sentence is warranted, ‘in determining the appropriate length of the custodial sentence, to the protection of the community as the primary sentencing consideration’. In service of this second mechanism, the Bill gave ‘a clearly expressed statutory authority to courts when determining the appropriate sentence that they need not be constrained by the common law principle of proportionality which effectively prevents a court from imposing a sentence beyond what is proportionate to the crime’. Separately, and significantly, under a different head of explanation in the Second Reading Speech, the Bill ‘also addresses the community’s concern that multiple offenders generally serve their sentences concurrently’ by ‘direct[ing] the court that in sentencing serious sexual offenders the presumption is that, unless there are exceptional circumstances, sentences will not be concurrent’. In conclusion, the then Attorney-General stated: The government recognises that parts of the community believe that current sentencing law and practices for violent crime, especially sexual assault, reflect an attitude that such offences are taken lightly. If this were true, it also sends out a dangerous message about how this society values its citizens, particularly women and children. The Bill is clear evidence of the government’s abhorrence of such an attitude. The message of the
considerations, such as the need for general deterrence and protection of the community, require emphasis. Prior good character is of less significance in child sexual assault cases, particularly in cases involving repeated offending. Freiberg notes: Character can be an aggravating factor if victims, their families and others have been led to trust the defendant because of the person’s impeccable background, or where the person’s ostensible good character has assisted in the commission of the offence. This is often the case in sexual offences against young victims. In New South Wales, when an offender is sentenced for a child sexual assault offence, a lack of prior record may need to be considered in light of section 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which prevents a court from taking into account an offender’s prior good character or lack of previous convictions if that fact assisted the offender to commit the offence. Though Victoria lacks a similar provision, the point is salient in this state under general sentencing principles. Good character will be of reduced significance for offences that are commonly committed by offenders of otherwise good character, or who exploit their respectability to further their offending. In R v T, Allen J stated: In the case of a pattern of sexual abuse of a child commencing at a tender age, good character in other respects and the disgrace and humiliation which ensue upon the criminality coming to light are less persuasive as indications that the appropriate sentence is not within the ordinary range than they would be in respect of most other crimes. Partly that is because it lamentably is all too common for the perpetrators of these offences to be men who in other respects have led exemplary lives and have commanded the respect of others. Partly, also, it is because the very veneer of respectability affords in crimes of this type the cover which conceals them. Indeed on occasions, of which the present case is an example, the offender uses the public disgrace and humiliation which would follow from an exposure of his wrongdoing as a weapon to deter the victim from making that disclosure. The leading authority on the relevance of character to sentence is Ryan, in which the appellant was a Catholic priest sentenced in New South Wales for a large number of sexual offences against children committed over a 20-year period. The High Court majority held that the failure to accord the appellant some leniency because of his
assessment and treatment, mental health assessment and treatment, 150 hours unpaid community work over 12 months, two-year participation in services specified in justice plan Offender, victim, and half-sister all cognitively impaired Plea Significant level of intellectual disability SP case 20 Guilty 3 x sexual penetration with a child under 12 2 x indecent act with a under 16 16 months – wholly suspended Offender aged 13–14 years at time of offending, victim was his eight year old cousin Includes representative charges ‘Offender is now 24 years and a PhD student’ ‘I accept as accurate, given the age of [offender] at the time, that he did not think it was such a serious thing to be committing (see his answer to Question 389 in the record of interview), and that such was more a sexual exploratory activity rather than a sexual thing’ SP case 21 Guilty 1 x sexual penetration with a child under 12 CCO – 2 years – supervision, unpaid work (50 hours over six months), assessment for a sex offenders treatment program Adult offended against nine year old in his neighbour’s care Diagnosis of high functioning autism Verdins: his disability would place him in a vulnerable situation in prison, likely to suffer hardship that others without the disability would not, specific deterrence can be achieved through terms of a CCO SP case 22 Not guilty 1 x sexual penetration with a under 12 YJC detention – 2 years Offender had just turned 18 victim was his seven year old cousin Previous uncharged acts committed by the offender when he was under 18 years Offender was aged 19 at sentence The guilty verdict will have ‘significant’ impact on his employment and future career hopes As a young offender, emphasis is on rehabilitation SP case 26 Guilty 3 x indecent act with a child under 16 7 months – wholly suspended Offender aged 14–16 victim was his cousin aged nine to eleven years Offender was aged 33 at sentence
Appendix 2: Details of in the rape sample that received non-imprisonment sentences Table A2: Cases in the rape sample that received non-imprisonment sentences Case name Plea Charge/s Sentence RP case 5 Guilty 1 x rape ICO – 12 months Offender aged 18 years at time of offending, victim was 16 Maximising good prospects given his age Plea No prior offences RP case 10 Not guilty 1 x rape RTO – 5 years 20 year old offender Victim was nine year old son of his cousin Extreme violence inflicted Aboriginal offender First sexual offence conviction/prior criminal history of escalating violence Long history of depression, self-harm, suicide attempts – would be vulnerable in custody Intellectual disability Need for community protection – need for sustained, focused treatment RP case 22 Guilty 2 x rape, 2 x indecent assault CCO – 2 years – supervision, sexual offender program, continue to participate in psychological treatment and comply with pre-existing justice plan Both offender and victim were intellectually disabled residents at the same facility Verdins principles Lack of available at the appropriate long term facility: ‘The imposition of a Community-based Order, at face value, seems extremely lenient and out of kilter with sentences usually imposed for your type of offending, particularly the rape charges. However, I propose to convict you and release you on all charges on a community-based order for 2 years’ RP case 30 Not guilty 2 x rape YJC detention – 3 Offender aged 19 years at time of offending, victim was his 17 year old aunt Offender was aged 20 at sentence Good prospects of rehabilitation – primacy of rehabilitation given his age and community interest RP case 38 Not guilty 1 x rape RTO (length unspecified in remarks) Offender aged 18 years at time of offending, victim was aged 17 years Offender was aged 19 years at sentence Intellectual impairment Previous offending Rehabilitation to be given substantial weight RP case 41 Guilty 1 x rape IRTP – 3 years Offender aged 39 years, victim was 32 year old sister
14 Sexual penetration of a under the age of 16 25 years 90 months With charges 11 and 13 15 Procuring a minor for child pornography [Crimes Act 1958 (Vic) s 69(1)] 10 years [Crimes Act 1958 (Vic) s 69(1)] 18 months With charge 16 16 Producing child pornography [Crimes Act 1958 (Vic) s 68(1)] 10 years [Crimes Act 1958 (Vic) s 68(1)] 18 months With charge 15 17 Indecent act with a child under the age of 16 10 years 18 months With charges 10, 12, and 21 18 Sexual penetration of a under the age of 16 10 years 2 years With charges 19 and 20 19 Sexual penetration of a child under the age of 16 10 years 2 years With charges 18 and 20 20 Sexual penetration of a child under the age of 16 10 years 2 years With charges 18 and 19 21 Indecent act with a child under the age of 16 10 years 18 months With charges 10, 12, and 17 22 Possession of child pornography [Crimes Act 1958 (Vic) s 70(1)] 5 [Crimes Act 1958 (Vic) s 70(1)] 12 months With charge 35 23 Sexual penetration of a under the age of 16 10 years 3 With charges 26, 28, 31, and 34 24 Indecent act with a child under the age of 16 10 years 2 years With charges 25, 27, 29, 30, 32, and 33 25 Indecent act with a child under the age of 16 10 years 2 With charges 24, 27, 29, 30, 32, and 33 26 Sexual penetration of a child under the age of 16 10 years 3 years With charges 23, 28, 31, and 34 27 Indecent act with a child under the age of 16 10 years 2 years With charges 24, 25, 29, 30, 32, and 33 28 Sexual penetration of a child under the age of 16 10 years 3 years With charges 23, 26, 31, and 34 29 Indecent act with a under the age of 16 10 years 2 years With charges 24, 25, 27, 30, 32, and 33
30 Indecent act with a under the age of 16 10 years 2 years With charges 24, 25, 27, 29, 32, and 33 31 Sexual penetration of a child under the age of 16 10 years 3 years With charges 23, 26, 28, and 34 32 Indecent act with a child under the age of 16 10 years 2 years With charges 24, 25, 27, 29, 30, and 33 33 Indecent act with a child under the age of 16 10 years 2 years With charges 24, 25, 27, 29, 30, and 32 34 Sexual penetration of a under the age of 16 10 years 3 years With charges 23, 26, 28, and 31 35 Possession of child pornography 5 years 12 months With charge 22 36 Possession of a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)] 1 year or 30 penalty units [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(b)] 1 month – 37 Indecent act with a child under the age of 16 10 years 18 months – Commonwealth offences 38 Using a carriage service to make child pornography available [Criminal Code 1995 (Cth) s 474.19(1)(a)(i)] 15 years [Criminal Code 1995 (Cth) s 474.19(1)(a)(i)] 3 With charge 39 39 Using a carriage service to access child pornography [Criminal Code 1995 (Cth) s 474.19(1)(a)(iv)] 15 years [Criminal Code 1995 (Cth) s 474.19(1)(a)(i)] 3 years With charge 38 Orders for cumulation Indictment charges: state offences Cumulation 11, 13, and 14 Base sentence 1, 2, 3, 4, 5, 6, 7, 8, and 9 3 months 18, 19, and 20 3 months 23, 26, 28, 31, and 34 6 months 24, 25, 27, 29, 30, 32, and 33 3 months
37 3 months Indictment charges: Commonwealth offences Cumulation 38 and 39 36 months Total effective sentence: 12 Non-parole period: 9 years Pre-sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991: 271 days 6AAA statement: the learned sentencing judge stated that the sentence he would have imposed if the appellant had been convicted of these offences after a would have been 15 years’ imprisonment, with the appellant becoming eligible for parole after serving 12 years of that sentence Other relevant orders: The sentence on the offences was ordered to commence immediately following the conclusion of the sentence imposed on the Commonwealth offences The sentence on the Commonwealth offences was ordered to commence on 24 January 2011 Pursuant to section 6B of the Sentencing Act 1991 (Vic), the appellant was to be sentenced as a serious sexual offender on charges 11 and 13 Pursuant to section 6F of the Sentencing Act 1991 (Vic), it was to be recorded that the appellant was sentenced as a serious sexual offender on charges 11 and 13 Pursuant to section 34 of the Sex Offenders Registration Act 2004 (Vic), the appellant was declared a registrable offender and the length of reporting is life Forfeiture order pursuant to section 78(1) of the Confiscation Act 1997 (Vic) Forensic sample pursuant to section 464ZFB(2) of the Crimes Act 1958 (Vic) Table A4: Sentencing orders made for state offences in SJ v The Queen, when resentenced on appeal Charge on Indictment Offences Maximum Sentence Cumulation 1 Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1)] 10 [Crimes Act 1958 (Vic) s 47(1)] 18 months 1 month 2 Indecent act with a child under the age of 16 10 years 18 months 1 month 3 Indecent act with a child under the age of 16 10 years 18 months Wholly concurrent 4 Indecent act with a child under the age of 16 10 years 18 months 1 5 Indecent act with a child under the age of 16 10 years 18 months 1 month 6 Indecent act with a child under the age of 16 10 years 18 months Wholly concurrent 7 Indecent act with a child under the age of 16 10 years 18 months 1 month 8 Indecent act with a child under the age of 16 10 years 18 months Wholly concurrent