Bavage v The Queen
[2012] VSCA 149
•29 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0644
S APCR 2009 0645
S APCR 2009 0646
S APCR 2009 0647
| JEFFREY PETER BAVAGE | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NEAVE and BONGIORNO JJA and BELL AJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 14 June 2012 |
DATE OF JUDGMENT: | 29 June 2012 |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 149 |
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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of sexual offences against five female victims – Offending occurred over period of almost 30 years – Applicant sentenced to total effective sentence of 27 years’ imprisonment with non-parole period of 20 years – Crown conceded on appeal that prosecutor had led trial judge into error – Prosecutor had submitted that trial judge could ‘step outside’ current sentencing practices in sentencing applicant – Applicant re-sentenced to total effective sentence of 21 years’ imprisonment with non-parole period of 17 years – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Boyce | Lewenberg & Lewenberg |
| For the Crown | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
BONGIORNO JA:
BELL AJA:
Between September 2008 and March 2009, the applicant, Jeffrey Peter Bavage, was convicted of a series of sexual assaults on five female victims. The convictions arose out of four trials, the first involving two victims and each of the other three involving a single victim. The offences occurred over a period of almost 30 years, commencing in April 1977 and ending in January 2007. Bavage’s victims were aged between about 7 and 17 at the time each of them was assaulted. Bavage was aged 15 at the time of the first offence and 45 at the time of the last.
Following a plea in mitigation on 24 April 2009, Bavage was sentenced on 13 May 2009 as follows:
Presentment C0705893A Complainants: A and B Count Offence Maximum Sentence Cumulation 1 Indecent assault on girl under 16 Five years’ imprisonment Three years’ imprisonment 2 Indecent assault on girl under 16 Five years’ imprisonment Three years’ imprisonment 3 Indecent assault on girl under 16 Five years’ imprisonment Three years’ imprisonment 4 Carnal knowledge of girl under 10 20 years’ imprisonment Seven years’ imprisonment Base sentence 6 Attempted indecent assault Five years’ imprisonment Four years’ imprisonment One year 7
Indecent assault on girl under 16
Five years’ imprisonment
Three years’ imprisonment
8
Indecent assault on girl under 16
Five years’ imprisonment
Three years’ imprisonment
9
Indecent assault on girl under 16
Five years’ imprisonment
Three years’ imprisonment
10 Sexual penetration of child under 16 10 years’ imprisonment Seven years’ imprisonment Four years Total effective sentence: 12 years’ imprisonment Presentment C0705893D.3 Complainant: C Count Offence Maximum Sentence Cumulation 1 Rape 25 years’ imprisonment 10 years’ imprisonment Total effective sentence: 10 years’ imprisonment Presentment C0705893E Complainant: D Count Offence Maximum Sentence Cumulation 1 Rape 25 years’ imprisonment 14 years’ imprisonment Base sentence 2 False imprisonment 10 years’ imprisonment Three years’ imprisonment One year Total effective sentence: 15 years’ imprisonment Presentment W00206941.1 Complainant: E Count
Offence
Maximum
Sentence
Cumulation
1 Aggravated burglary 25 years’ imprisonment Three years’ imprisonment One year 2 Indecent act with child under 16 10 years’ imprisonment Seven years’ imprisonment Base sentence Total Effective Sentence: Eight years’ imprisonment Cumulation between presentments
Presentment
Total effective sentence
Cumulation between presentments
Presentment C0705893A 12 years’ imprisonment Six years Presentment C0705893D.3 10 years’ imprisonment Three years Presentment C0705893E 15 years’ imprisonment Presentment W00206941.1 Eight years’ imprisonment Three years Total effective sentence and non-parole period Total effective sentence: 27 years’ imprisonment Non-parole period: 20 years
Following his being sentenced, Bavage lodged notices of application for leave to appeal in respect of both his convictions and his sentences. However, shortly before those applications were due to be heard, his solicitors gave notice of his intention to seek leave to discontinue his applications with respect to his convictions. He maintained his applications with respect to his sentences on two grounds ― manifest excess and a failure by the sentencing judge to properly apply the principle of totality.
Although the Crown initially opposed Bavage’s applications with respect to his sentences, by a comprehensive submission filed with the Court on the morning of the hearing it conceded that a number of the sentences imposed by the trial judge were in fact manifestly excessive and that, as a consequence, his total effective sentence and non‑parole period were, themselves, similarly excessive. On the hearing of the appeal, the Court granted Bavage leave to withdraw his applications for leave to appeal against his convictions and accepted the Crown’s concessions with respect to his sentences, thus confining this Court’s function to the task of re-sentencing him.
Essentially, the Crown’s concession was that before the trial judge the then prosecutor had submitted sentencing ranges in respect of various of the offences for which Bavage was to be sentenced which were not in conformity with current sentencing practices. He had contended that the trial judge should go beyond current sentencing practices and impose greater sentences than would have been warranted had her Honour taken current sentencing practices into account. As a result, the sentencing judge was led into error in imposing the sentences which she did.
Sentencing remarks
The trial judge published comprehensive reasons for imposing the sentences which she did on the applicant, which reasons were not criticised by either party. For ease of reference, those sentencing remarks are appended to this judgment. They more than adequately set out the cases against Bavage and all of the other facts and circumstances relevant to the imposition of appropriate sentences including the effects on victims and the applicant’s personal circumstances. It is upon that material that this Court should now engage in the re-sentencing process.
Before turning to the charges in respect of which the applicant is to be re-sentenced, it should be noted that, at the commencement of the hearing before this Court, his counsel stated that although his client had hitherto denied his guilt in respect of all of the charges upon which he was found guilty, he now accepted that he had been guilty of wrongdoing in respect of four of the five relevant victims. The exceptions were the offences he was found guilty of concerning victim D, namely, one count of rape and one count of false imprisonment in a remote location early in 2002. Counsel submitted that, in the circumstances, although the late acknowledgment of some responsibility by his client did not go to the issue of remorse or contrition, it did, at least, go to the question of his possible future rehabilitation. He argued that his client’s acceptance of responsibility, limited though it was, should suggest the possibility of his being able, at some time, to live in the community without re-offending.
In the course of his submissions as to sentence on behalf of the Crown, the prosecutor at trial said:
The ranges submitted on behalf of the Crown are viewed as being outside current sentencing practices for this kind of offending. It is submitted that a departure is warranted in the circumstances of this case and that the court should step outside those current sentencing practices and impose sentences of [as he then submitted].
The Crown now concedes that the prosecutor ought not to have made such a submission and that, by doing so, he led the trial judge into error in that she imposed sentences other than in accordance with the appropriate statutory provisions.
Correction of sentences
Presentment C0705893A
On the trial of this presentment, the applicant was convicted on five counts in respect of victim A and four counts in respect of victim B. The relevant offending occurred between July 1977 and July 1984 with respect to victim A and between April 1977 and March 1982 with respect to victim B. The victims ranged in age between about 7 and 14 and a half over the period of this offending. The applicant was between 15 and 22 years of age at the same time. The trial judge’s summary of the facts constituting those offences is at paragraphs [9]–[17] of the sentencing remarks.
As the table in paragraph [2] shows, the maximum penalty for each of the relevant indecent assaults was five years’ imprisonment, that for carnal knowledge was 20 years’ imprisonment and that for sexual penetration of a child under 16 was 10 years’ imprisonment. In this Court, the Crown conceded that the sentences imposed by the trial judge were, on each of these counts, excessive having regard to current sentencing practices.[1]
[1]This means the sentencing practices which now apply, having regard to the maximum sentence applicable to the offence when committed: see Stalio v The Queen [2012] VSCA 120.
Appropriate sentences must not only be fixed by reference to current sentencing practices but also by reference to the statutory maximum sentence applicable at the time the offences were committed. Further, the fact that the applicant, over the relevant period covered by this presentment, was a young offender (and, in respect of some offences, possibly a child) also had to be given appropriate consideration ― as the trial prosecutor and the trial judge correctly acknowledged. The applicant’s offending in respect of the later offences should attract higher individual sentences than the earlier offences committed when he was younger.
With reference to published statistics, the Crown’s submissions pointed out that a sentence of three years’ imprisonment for the conduct charged as indecent assault on this presentment (each of counts 1, 2, 3, 7, 8 and 9) was equal to the highest sentence imposed for such conduct in the past five years[2] ― when the maximum sentence was double that applicable in this case. Although it did not specifically concede that the sentence imposed in respect of count 4 was manifestly excessive, when the age of the applicant at the time of that offending (15 or 16) is taken into account, it must be regarded as such. The Crown specifically conceded that the sentences imposed in respect of counts 6 and 10 and the total effective sentence were all manifestly excessive.
[2]Sentencing Advisory Council, ‘Indecent Assault ― Sentencing Trends in the Higher Courts of Victoria ― 2005–06 to 2009–10’ (Sentencing Snapshot No 115, November 2011).
The applicant should be given leave to appeal with respect to the sentences imposed, the appeal allowed, those sentences set aside and the applicant re‑sentenced as follows:
Count
Offence
Sentence
Cumulation
1
Indecent assault on girl under 16
18 months’ imprisonment
2
Indecent assault on girl under 16
18 months’ imprisonment
3
Indecent assault on girl under 16
18 months’ imprisonment
4
Carnal knowledge of girl under 10
Five years’ imprisonment
Three years
6
Attempted indecent assault
18 months’ imprisonment
7
Indecent assault on girl under 16
18 months’ imprisonment
8
Indecent assault on girl under 16
Two years’ imprisonment
Six months
9
Indecent assault on girl under 16
Two years’ imprisonment
Six months
10
Sexual penetration of child under 16
Six years’ imprisonment
Base sentence
Total effective sentence:
10 years’ imprisonment
Presentment C0705893D.3 (also referred to as C0705893D.2)
This single-count presentment alleged the digital penetration of a 13-year-old girl in 1993 whilst she was asleep. The circumstances are set out in the trial judge’s sentencing remarks at paragraphs [18]–[19].
Although the sentence imposed in this case, 10 years’ imprisonment, fell within the range submitted by the trial prosecutor, the Crown, in this Court, pointed out that it sits at the outer limit of sentences for such offences imposed in the past five years.[3]
[3]Sentencing Advisory Council, ‘Rape ― Sentencing Trends in the Higher Courts of Victoria ― 2005–06 to 2009–10’ (Sentencing Snapshot No 117, November 2011).
The Crown referred to R v Cardamone[4] and R v Alexander[5] where this Court confirmed sentences of four years’ imprisonment and three years’ imprisonment respectively for this offence where offenders had been found guilty by a jury verdict. In those cases, the victims were a 15-year-old girl and an elderly woman respectively.
[4](2007) 171 A Crim R 207.
[5][2008] VSCA 191.
The Crown conceded manifest excess in all the circumstances of this case. The applicant should be granted leave to appeal his sentence, the appeal allowed, the sentence set aside and in lieu thereof he should be sentenced to six years’ imprisonment.
Presentment C0705893E
On this presentment, the applicant was convicted of one count of rape and one count of false imprisonment. The circumstances of these offences are fully set out in the sentencing remarks at paragraphs [20]–[22].
At the time of this offending, the applicant was aged 40 and the victim was aged 17.
The Crown conceded that the sentence of 14 years’ imprisonment imposed by the trial judge again sits at the very outer limit of sentences imposed in the last five years for rape.[6] It conceded that the judge went beyond current sentencing practices in imposing the sentence which she did and that, in any event, having regard to the commonality between the offence of rape and the offence of false imprisonment, in the circumstances, there should have been no order for cumulation.
[6]Sentencing Advisory Council, above n 3.
The applicant should be given leave to appeal against the sentences imposed in respect of the offences on this presentment, the appeal should be allowed, the sentences set aside and he should be re-sentenced for the rape to a term of imprisonment of eight years and for the false imprisonment to a term of imprisonment of three years. There should be no order for cumulation, resulting in a total effective sentence of eight years’ imprisonment.
Presentment W00206941.1
These offences occurred in January 2007 when the applicant was aged 45 and the victim was 7 years old. The circumstances of the offending are set out in the sentencing remarks at paragraphs [23]–[29].
The Crown did not concede manifest excess in respect of either of the sentences imposed for the offences charged in this presentment. Although the sentence of seven years’ imprisonment with respect to the count of committing an indecent act with a child under the age of 16 is the highest sentence imposed for this offence in the past five years,[7] it could not be said, in the circumstances, to be manifestly excessive; nor could the sentence of three years’ imprisonment with respect to the aggravated burglary. The applicant should be refused leave to appeal with respect to these sentences. Thus, the total effective sentence of eight years’ imprisonment imposed by the trial judge should stand.
[7]Sentencing Advisory Council, ‘Indecent Act with a Child under 16 ― Sentencing Trends in the Higher Courts of Victoria ― 2005–06 to 2009–10’ (Sentencing Snapshot No 113, June 2011).
Totality
The applicant fell to be sentenced as a serious sexual offender in respect of all of the sexual offence counts upon which he stood trial. The offending occurred over a lengthy period. Whilst the principle of totality must be applied in a somewhat modified manner having regard to the statutory provisions relating to serious sexual offenders,[8] such principles still have some application. The Crown conceded both in this Court and in the Court below that there was no need to impose other than a proportionate sentence to meet the requirement imposed by s 6D(a) of the Sentencing Act 1991 that the Court regard the protection of the community as the principal purpose for which the sentence is imposed.
[8]See Sentencing Act 1991 s 6E.
Conclusion
The applicant should be re-sentenced as follows:
Presentment C0705893A
Complainants: A and B
Count
Offence
Maximum
Sentence
Cumulation
1
Indecent assault on girl under 16
Five years’ imprisonment
18 months’ imprisonment
2
Indecent assault on girl under 16
Five years’ imprisonment
18 months’ imprisonment
3
Indecent assault on girl under 16
Five years’ imprisonment
18 months’ imprisonment
4
Carnal knowledge of girl under 10
20 years’ imprisonment
Five years’ imprisonment
Three years
6
Attempted indecent assault
Five years’ imprisonment
18 months’ imprisonment
7
Indecent assault on girl under 16
Five years’ imprisonment
18 months’ imprisonment
8
Indecent assault on girl under 16
Five years’ imprisonment
Two years’ imprisonment
Six months
9
Indecent assault on girl under 16
Five years’ imprisonment
Two years’ imprisonment
Six months
10
Sexual penetration of child under 16
10 years’ imprisonment
Six years’ imprisonment
Base sentence
Total effective sentence:
10 years’ imprisonment
Presentment C0705893D.3
Complainant: C
Count
Offence
Maximum
Sentence
Cumulation
1
Rape
25 years’ imprisonment
Six years’ imprisonment
Total effective sentence:
Six years’ imprisonment
Presentment C0705893E
Complainant: D
Count
Offence
Maximum
Sentence
Cumulation
1
Rape
25 years’ imprisonment
Eight years’ imprisonment
Base sentence
2
False imprisonment
10 years’ imprisonment
Three years’ imprisonment
Total effective sentence:
Eight years’ imprisonment
Presentment W00206941.1
Complainant: E
Count
Offence
Maximum
Sentence
Cumulation
1
Aggravated burglary
25 years’ imprisonment
Three years’ imprisonment
One year
2
Indecent act with child under 16
10 years’ imprisonment
Seven years’ imprisonment
Base sentence
Total Effective Sentence:
Eight years’ imprisonment
Cumulation between presentments
Presentment
Total effective sentence
Cumulation between presentments
Presentment C0705893A
10 years’ imprisonment
Presentment C0705893D.3
Six years’ imprisonment
Three years
Presentment C0705893E
Eight years’ imprisonment
Four years
Presentment W00206941.1
Eight years’ imprisonment
Four years
Total effective sentence and non-parole period
Total effective sentence:
21 years’ imprisonment
Non-parole period:
17 years
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APPENDIX
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-07-01466, CR-08-02127, CR-08-00404, CR-08-00399
| THE QUEEN |
| v |
| JEFFREY PETER BAVAGE |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2009 | |
DATE OF SENTENCE: | 13 May 2009 | |
CASE MAY BE CITED AS: | R v Bavage | |
MEDIUM NEUTRAL CITATION: | [2019] VCC | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane, Mrs C Quin and Mr J Vandersteen | Office of Public Prosecutions |
| For the Accused | Mr N Papas | Lewenberg & Lewenberg |
HER HONOUR:
1 In the early hours of the morning of 2 January 2007, an intruder entered a campsite at the Torquay Foreshore Caravan park and sexually assaulted a 7 year old child as she lay sleeping in the annexe of the family’s holiday caravan. Her two brothers were asleep in bunks right beside her, her parents just a metre or so from them in the caravan. The assailant fled as she woke and called out in fear. Not surprisingly, considering the age of the child, the brazenness of the intrusion into the annexe where the three children were sleeping, and the fact that this occurred at peak Christmas holiday time, in a family caravan park in a popular and crowded coastal town, the assault attracted considerable publicity.
2 Within a matter of days, you, Jeffrey Bavage, were identified as a suspect. You were arrested and charged 23 days later on 25 January 2007. Again, there was considerable publicity surrounding your arrest, your charging and remand in custody. In the weeks following your arrest, a number of people made complaints to the police that they had been sexually assaulted by you in the past. As a result, other charges were laid.
3 Eventually, you were presented for trial on six separate presentments, alleging the commission of sexual offences against eight complainants, and one presentment alleging other offences.
4 Ultimately, you were convicted after trials of sexual offences against 5 victims:
·two sisters between 1977 and 1983 commencing when they were 9 and 7 years of age respectively and you were 16;
·the 13 year old sister of your then girlfriend in 1993, when you were about 31;
·a 17 year old girl at Pykes Creek in 2002, when you were about 42; and
·the 7 year old child at the Torquay Foreshore Caravan Park in January 2007, when you were 47.
5 I will not refer to any of the victims by name in my sentencing remarks. That is because they are protected by law from having any information which might identify them being published.
6 The Crown did not proceed with trials in respect of two other complainants, and in respect of the non-sexual offences. It did not proceed with the retrial of offences alleged to have been committed against another complainant, after the first jury empanelled to hear that matter disagreed, and after three further attempts to proceed with the retrial resulted in the discharge of those juries without verdict.
7 You come therefore to be sentenced for offences in respect of 5 victims, occurring over a 30 year period, from 1977 to 2007.
Circumstances
8 I will deal with the offences in the order in which they were committed.
Presentment No C0705893A
9 These offences concern the two sisters.
10 Your family lived near the family of these two victims. You became friendly with their family, and were welcome in their house.
11 The older sister gave evidence that when she was about 9, she woke one night to find you in her bedroom, naked, kneeling beside her as she lay in bed. You were touching her on the vagina. You continued to touch, then push your finger into her vagina. (count 1, indecent act with a child under 16). After that, you licked her vagina, inserting your tongue into her vagina (count 2, indecent act with a child under 16).
12 After some time, you got into the bed with her, and penetrated her vagina with your penis, withdrawing after you ejaculated (count 4, carnal knowledge of a child under 10). She said you did this on many occasions after that first occasion. She said that in addition to these three acts, you also put your penis in her mouth. That too was an act that occurred frequently after it commenced (count 3, indecent act with a child under 16). She gave evidence that each of these 4 acts occurred frequently over the next year or two. The presentment is framed to cover a 12 month period, from 1977 to 1978 in respect of these 4 counts.
13 Her younger sister gave evidence that when she was about 7, she, too woke one night to find you naked, kneeling beside her bed, touching her on the vagina and penetrating her vagina with your finger (count 7, indecent act with a child under 16). She said after you had done this on maybe 20 or 30 occasions, she then woke one night to find you licking her on and in her vagina (count 8, indecent act with a child under 16). She said that also occurred on many occasions, and that after you had finished, you would get into bed beside her and masturbate yourself to ejaculation. She said you also made her lick and suck your penis (count 9, indecent act with a child under 16). She said this particular act commenced some time after the other acts I have detailed, and again occurred on many occasions. The presentment in respect of these counts covers a 4 year period, from 1977 to 1981.
14 This victim also said you sexually penetrated her, putting your penis in her vagina on many occasions when you came into her bedroom at night. She remembered the last occasion particularly, describing your conduct as rough and the penetration painful. When you finished, she discovered she was bleeding. She places the final act of penetration as occurring in 1981, and the presentment is framed accordingly (count 10, sexual penetration of a child over 10 and under 16).
15 So far as counts 1 – 4 and 7 – 10 are concerned, I sentence you on the basis that each count refers to a single act. For counts 1- 4, and 7 – 9, the act, the subject of the count, is the first occasion you committed it. For count 10, the sexual penetration of the younger sister, the count relates to the last occasion. Although sentencing you in respect of these counts on the basis the counts allege a single act, I have regard to the context in which the offending occurred, that is that you engaged in these acts with each child over that extended period. I do not therefore treat any of the 4 acts in respect of each sister, that are the subject of the verdicts on counts 1 – 4 and 7 – 10 as isolated, or one-off acts.
16 That leaves, in respect of these victims, one last offence. Count 6 is a single instance of attempted indecent assault, occurring when the victim, the older of the sisters, was 14 or 15. The families had moved away, and contact with you had diminished. The victim awoke one night in the house the family had moved to, to find you naked, standing over her as she lay in bed. Her mother came into the bedroom, and saw you leaning over her, and the victim trying to fend you off. You ran away, and she then told her mother what you had done in the past.
17 Although her mother took steps to ensure that you were no longer permitted to visit the family, no further inquiry was made of this victim, or her sister, and no report was made to the police at the time.
Presentment No C0705893D.2
18 This relates to the 1993 rape of the 13 year old sister of your then boyfriend.
19 In 1993, you were 31. You commenced a relationship with a young woman, and came to know her family, including her 13 year old sister. On one occasion the 13 year old and her younger sister stayed overnight at the flat occupied by their older sister, your girlfriend. A bed was made for the victim on a mattress on the floor beside the futon that you and her sister were sleeping on. The child woke in the night to find you lying beside her, pushing your finger into her vagina. She felt a burning sensation, she froze, then blacked out (count 1, rape).
Presentment No C0705893E
20 This relates to the 2002 rape of a 17 year old girl at Pykes Creek.
21 In 2002 you met a couple who lived in a town near Ballarat. You were then living in Lara. A friendship developed between you and your then partner, and this couple and you exchanged visits to each other’s homes. The 17 year old daughter of the woman of the other couple was present on some of those occasions, so you came to know her, and she to know you as a friend of the family. Early one morning as she was walking to the railway station near her home to catch the train to Bacchus Marsh where she worked, you were waiting in your car at the end of the street. You offered to drive her to work. She initially refused, but you insisted. On the way to Bacchus Marsh, you turned off at Pykes Creek and drove down to the boat ramp. It was deserted at that time. You pushed her into the back of the car, held her down and penetrated her vagina with your penis. During the rape, and after you had finished, you held her by the throat and threatened her, saying “what will I do with you now”. She was, understandably, terrified. You did not release your hold on her throat, or let her out of the back of the car until satisfied with her promises that she would not tell anyone. You then drove her on to Bacchus Marsh, adding to your earlier threats a warning that you would do the same to her younger sister if she told anyone (count 1 rape, count 2 false imprisonment).
22 In all of these cases, you were known to the victims, and friendly with the adults in their families. In each case, there was evidence connecting you with the victims, and the places and times where the acts occurred. Whilst at times giving an account seeking to minimise the contact you had with the victims, you accepted the evidence placing you in proximity to the victims, but flatly denied any sexual contact between you and them. By contrast, in the last matter, to which I am about to refer, the victim and her family were unknown to you. Your defence in that matter was that you were not the assailant.
Presentment No W00206941.1
23 This relates to the sexual assault of the 7 year old girl in the family campsite at the Torquay Foreshore Caravan Park.
24 In the early hours of the morning on the second of January 2007, the victim was sleeping in the annexe of the caravan in which her family was staying at the Torquay foreshore caravan park for the summer holidays. The victim woke at about 5:30 in the morning, to find somebody kneeling at the foot of her bed, licking her on the vagina. The man ran away as she stirred, and called out for her mother.
25 Despite your denials you were the assailant, there was considerable evidence which identified you. DNA matching yours was found on the zip to the annexe, on the child’s nightie and bedding, and on toilet paper she used to wipe herself some hours later. There was evidence you were at the caravan park at the time, having been driven there by your accomplice in earlier burglaries and thefts at the caravan park. You said things to him that only the assailant could have known. Mobile telephone records put you at the scene and confirmed the accomplice’s account.
26 You were arrested 3 weeks later, and took part in a recorded interview. You denied being at the caravan park at the time, saying you had slept the night of 1 – 2 January at Rosebud. You said your accomplice had taken your car, and your telephone that night. The telephone records showed your phone being used at times, and in locations inconsistent with that account. At trial, you maintained the denial of being at the caravan park, but admitted you had lied when saying you had slept the night at Rosebud, and that your accomplice had taken your car and phone. Although your trial account accommodated the calls to and from your telephone which other evidence identified you as participating in, it was clearly open to the jury to reject, as it did, your account of your whereabouts.
27 Your explanations for the DNA (ultimately conceded to be yours) found at the scene, namely that you could have deposited it in and around the campsite on the morning of 1 January when looking for things to steal, and that it could have found its way to the zip, bedding, nightie and toilet paper by secondary tertiary, quaternary or subsequent transfer was rejected by the jury as a reasonable possibility. That is not surprising. It was, on the scientific evidence alone, implausible. It was even less plausible when the other circumstantial evidence was taken into account.
28 There was other evidence led at that trial of a person acting suspiciously in the caravan park, both on the morning of new year’s day, and in the hours preceding the sexual assault on the child. In your evidence, as in your recorded interview, you admitted having spent time in the caravan park on the morning of 1 January, looking for things to steal. Whether you were the person seen going into the women’s toilets in the morning of 1 January, or looking into tents where women and young girls lay sleeping, in the hours preceding the sexual assault on the victim, I am unable to say. I do not consider the evidence such as to satisfy me beyond reasonable doubt that it was you and do not take it into account for sentencing purposes.
29 The verdict on Count 1 in this trial, that of aggravated burglary, I treat as a finding of satisfaction by the jury that you entered the annexe intending to steal anything of value to you, in circumstances where you knew it was at least probable there were people inside. Count 2 is the indecent act you committed on the child.
Effect on victims
30 Each of the victims gave evidence at trial or in respect of the child, at a special hearing, pre-recorded before the trial. So did the mothers of all victims, the siblings of some victims, and the father of the most recent victim. The victims who were adults by the time of trial, and the adult family members were also cross examined at committal. Some victims and family members had to give evidence on more than one occasion due to a variety of circumstances which led to a number of juries being discharged without verdict. Some were required to come to court and give evidence on a number of occasions and sent away when, as a result of illness, accident, or other mishaps the trial could not proceed as scheduled. In the trials concerning the two sisters, and the 1993 and 2002 rapes, the cross examination of the victims was conducted on the basis the events did not occur, and that they had made up, invented, fantasised, dreamt, or just lied about what they said occurred. In some trials it was suggested the victim gave a false account because she believed you were a man of means, a line suggestive of a motive to gain financially from falsely accusing you. This no doubt added to the suffering and distress of the victims.
31 Victim impact statements were provided by the two sisters, the victim of the 1992 rape and her mother, the victim of the 2002 rape and the parents of the child the victim of the 2007 Torquay Caravan Park assault. Extracts from a number of them were read out in open court in the course of the sentencing hearing. They are powerful and very distressing accounts, both to hear those parts that were read out, and to read them in their entirety as I have done. The effect on your victims has been profound, and for those who were offended against in the past, long lasting. Those who have grown to adulthood all speak of the effect on their relationships with others, on their capacity to form and maintain intimate and loving relationships. The parents of your most recent victim voice their fear about the long term consequences for her.
32 I do not, in the interests of protecting the privacy of the victims, propose to refer in detail to what they said in their statements. As you do not admit your guilt, it seems to me there is no purpose served by telling you of the effect of your behaviour on them and I do not want to add to their distress by revealing to you and the public at large the intimate details or the precise manner in which each had been affected. I have however, read carefully, and more than once what each has written and I am fully mindful of how devastating your behaviour has been for each of them.
33 One of the most distressing refrains from the victims who are now adults is the guilt each of them feels about the fact you continued to offend. They must understand that they bear no guilt and no responsibility for your actions, to themselves, or to your other victims. They each should understand they are to be commended for their courage in coming forward and in giving their accounts. Each has shown extraordinary strength in doing so and deciding to come forward and to see the matter through by giving evidence, however often they were required to do so. Similar considerations apply to the parents of the most recent victim. They too, must understand they are not guilty, or responsible for what happened to their daughter. It is to be hoped that the course these proceedings have taken so soon (in court terms at least) after the assault on the child will mean that they and their daughter can move more rapidly through the cycle of grief, fear and recovery than the other victims. It is to be hoped too that the older victims will be able to proceed on their voyage to recovery.
34 Before leaving the effect on the victims, I want to say something about the significance of parents and others responsible for the welfare of children acting on the discovery or suspicion their children have been sexually abused, or of heeding their complaints, no matter how vague, about sexual misconduct. What I am about to say in no way aggravates the seriousness of your offending for sentencing purposes, but is something that I consider is of such importance to the victims and potential importance to others, that it should be said. Nor should what I say be seen as a criticism of either of the parents whose responses I am about to refer to. Times were different then, and I speak with the knowledge of 2009, about matters which were not so well known in the 70’s, 80’s or even the 90’s.
35 The evidence in these trials revealed one child told her mother what you had been doing to her, and to her sister, after you were discovered in her bedroom. As she described it in her statement, she and her mother discussed what to do, and decided not to report it, or take it further, because they feared the discovery would adversely affect the health of her father. As a result, although steps were taken to keep you out of the house, no report was made to the police, and no consideration given to obtaining assistance for the children affected by the abuse. These were different times, and people did not know then what we know now about the long term impact of unaddressed child sexual abuse. But no child should be made to feel they bear the responsibility for putting up with what had happened to them in order to avoid causing distress to someone else, or for fear the revelation will affect their health of some other person.
36 Another child complained to her mother, who did not take the complaint seriously, that she was uncomfortable in your presence, and did not like the way you tried to kiss her. As a result, that child did not disclose the rape when it occurred, because she feared she would not be heeded or believed. We now know that children who are sexually abused are often fearful, fear they are somehow to blame and of course feel powerless. They often make staged disclosures and will only reveal more detail if they feel the adult in whom they have confided believed them and has acted to protect them. An adult can reason that there is a difference between a vague complaint about feeling uncomfortable and rape. A child may not be able to do so. It is essential that responsible adults ensure that a child who makes a vague disclosure or complaint is listened to respectfully, not dismissed, and encouraged to give voice to any greater concerns than those they first articulate.
Relevance of offending over a 30 year period
37 The 30 year period over which these offences occurred is relevant for a number of reasons.
38 You were only 16 when the offending commenced, and you are entitled to have your youth taken into account in your favour, in respect of those early offences.
39 However, that is tempered by the fact that you now come to be sentenced in respect of the later offences, those committed in 1993, 2002 and 2007, as a mature adult who continued to commit offences of a similar nature to those committed at 16.
40 Sexual offences against children are regarded as more serious today than they were in the late 1970’s. More is known about the effect on victims, in the short and long term. Community attitudes to such offences have hardened, and sentences have increased, in part in recognition of these matters. You must be sentenced, in respect of each individual offence, having regard to the maximum penalty then applicable, but having regard to the seriousness with which courts today regard such offending.
41 The task is made even more complicated in this case, as in addition to these matters, the maximum sentence for some offences has increased, some offences previously regarded as indecent assault now fall within the definition of rape or sexual penetration and in some cases, vastly different penalties apply to similar conduct committed on children close in age.
42 So, indecent assault of a girl under 10 carried a maximum penalty of 5 years imprisonment in the 1970’s. Indecent act on a child under 16 carries a maximum penalty of double that, 10 years, and did so by the time you performed the indecent act with the child in the Torquay Caravan Park in 2007. Acts involving oral sex, and digital penetration were, in the 1970’s characterised as indecent assault. They are now defined as sexual penetration. So, the digital penetrations of the two sisters resulted in findings of guilt of indecent assault, carrying a maximum of 5 years imprisonment, while the digital penetration of the 13 year old girl in 1993 resulted in a conviction for rape, which carries a maximum penalty of 25 years imprisonment. The penetration of the vaginas of the two sisters with your tongue, and the penetration of their mouths with your penis would also today be in law a rape, carrying a maximum penalty of 25 years, or depending on the age of the child, a sexual penetration of a child under 10, carrying a maximum of 20 years, or of a child between 10 and 16, carrying a maximum penalty of 10 years. They were treated as indecent assaults in the 1970’s and carried a maximum of 5 years imprisonment.
43 Relevantly here, for the offences involving sexual penetration of the vagina of a victim with your penis, you face a maximum of 20 years imprisonment in respect of the older of the two sisters (that was on a charge of carnal knowledge of a girl under 10), 10 years imprisonment in respect of the younger of the two sisters on a charge, not of rape or carnal knowledge, but of sexual penetration of a child between 10 and 16, and 25 years imprisonment in respect of the 17 year old girl on a charge of rape.
44 These differences clearly have the capacity to produce what appear to be anomalous results, when such vastly different sentences are available for like conduct.
Your other convictions
45 By 2007, that is, by the time of the commission of the last of these offences, you had been convicted of 95 other offences, in 28 separate court appearances between 1980 and 2006.
46 Approximately one quarter of those were for sexual offences, offences involving violence, often violence against police, or were for offences punished by a suspended sentence which was in operation at the time of the commission of the last offence at Torquay Caravan Park.
47 You were twice convicted for what was then charged as offensive behaviour in 1984, when you were 23. You were convicted for offensive behaviour in 1991, and indecent exposure in 2001. The circumstances of one of those offences are unknown. The others all involve exposing yourself and masturbating. At least one involved doing so in front of a child, an offence now likely to be charged as indecent act in the presence of a child. In January 2003 and again in 2006 you were convicted of 5 offences of exposing yourself to a child and masturbating in their presence. Although you were dealt with in 2003 and 2006, all of them occurred in 2001. You have also been convicted in 2003 of loitering and indecent behaviour, in circumstances similar to the lead up behaviour which resulted in the 2003 indecent act convictions.
48 In addition, by 2007 you had by then amassed a large number of dishonesty, serious driving, firearms and violent offences, as well as lesser driving and summary or street offences. You had been sentenced to terms of imprisonment requiring immediate incarceration on 6 occasions, and had sentences fully suspended on 4 other occasions (two of them operative at the time of the commission of the 2007 offences). In addition, after the commission of the Torquay offences, but before you were charged, you had appealed a further term of imprisonment imposed upon you in a Magistrate's Court, for which a 6 month sentence to be served by Intensive Correction Order was substituted. That has since been cancelled following your remand in custody in respect of the Torquay and other offences.
49 At the time of the commencement of the offending in respect of the two sisters, you had no convictions. By the time the offending against them had ceased, you had amassed convictions for 6 dishonesty offences, and 2 serious driving offences (driving in a manner dangerous and driving whilst disqualified) from 3 separate court appearances. This in effect sets the pattern for your subsequent offending.
50 The significance of your criminal history is this: it demonstrates a pattern of widespread, comprehensive offending, of doing what you want when you want without regard for the personal or property rights of others (the violent offending and property offending), for the rights of other road users or for road rules (the dangerous driving and other traffic offences) or for authority (resist arrest, drive whilst disqualified offences).
51 However, when considered in the context of the sexual offences, your other criminal history is relevant only to this extent. You are clearly not entitled to be treated as a person otherwise of good character, and the widespread nature of the convictions, and the period they span has some, but very limited bearing on the weight to be given to your prospects for rehabilitation.
52 I am also conscious of the fact that I must, when sentencing you for the offences against the two sisters, for the rape of the 13 year old sister of your previous girlfriend and for the rape of the 17 year old girl, to take into account, to the extent I have indicated I will, the more limited prior convictions you had at each of those times.
53 What is significant for sentencing purposes are your previous convictions for sexual offences. You have no prior convictions for sexual offences in respect of the two sisters. You had been convicted of 3 separate exposure offences, one involving masturbating in the presence of a child by the time you raped the 13 year old sister of your girlfriend, and had been convicted of one more by the time of the commission of the rape of the 17 year old at Pykes Creek.
Your background and personal circumstances
54 You are now 47 years of age. Three reports prepared by Dr Lester Walton, a forensic and clinical psychiatrist, dated 23 October 2001, 13 December 2006 and 3 February 2009, were tendered on the plea. Most of the history I recount comes from his reports. You told him that your childhood was marked by regular exposure to violence. You often saw your father, whilst drunk, assault your mother, and were then assaulted yourself when intervening to try to protect her. Your parents separated when you were 12, and your mother died, of a drug overdose, soon after. You have always suspected your father was involved in her death, although he has never been charged. You have no contact, or very little with family members. You are estranged from your father, your older brother has lived in the United Kingdom for many years, your younger brother, the sibling to whom you were closest, died in a car accident when you were 24, and you have had a falling out with your only sister. You have been married at least once, and have had a number of long term relationships. You have fathered a number of children. You have no contact with your former partners or your children, save for your last partner. At the time of the Torquay offences, you had recently split up with a long term partner. By the time of your arrest, you were spending time with her again, and according to Dr Walton’s most recent report, you appear to have maintained some form of continuing relationship with her since your remand in custody in January 2007.
55 Your education was limited. You stopped going to school after your mother’s death, taking on responsibility for the care of your younger brother. Dr Walton describes you as barely literate. You began working, in manual jobs requiring strength and stamina. You worked at meatworks, loading meat, as a rouseabout during shearing season, and in other farm labouring jobs. You worked as a butcher at various abattoirs until an accident in which you severed your finger brought such work to an end. You also worked as an owner-driver for some years, before becoming a diver. After hypoxic brain injury stopped you diving, you continued to work in other fields, most consistently as a mechanic or panel beater. It was clear you took great pride in your capacity for hard, physical work and in your capacity to earn and provide well for yourself. You have demonstrated a capacity for hard work, and are not work shy. All this work history was interspersed with offending, some of it dishonesty and property offence related, and interrupted by terms of imprisonment. The material also indicates you have had a long history of drug, particularly amphetamine, abuse.
56 According to Dr Walton you present a complex profile. Although CT scans and ECG tests reveal no abnormalities, neuropsychological testing has revealed definite abnormalities with information processing and memory. In addition to the hypoxia, you have also sustained head injuries on at least two occasions, in a motor vehicle accident, and in the course of an arrest. The injuries you sustained in the arrest were of sufficient severity to require your admission to St Augustine’s Ward at St Vincent’s and to lead to neurological evaluation. Your memory deficits were not as marked when Dr Walton assessed you for the purposes of his 2006 and 2009 reports, as they were when he assessed you in 2001, but he remains of the opinion that you exhibit a persisting pattern of cognitive deficit, albeit of relatively mild proportions. In his opinion the brain injury makes a contribution to your long standing emotional instability and likely compromises your capacity for consistent and proper judgment.
57 In his opinion you are an emotionally labile man, which given the intensity of the phenomenon, would seem to be likely to be organically based, but contributed to by the exigencies of your life otherwise. By that I understand him to mean your long term amphetamine abuse, and the adverse life experiences you have encountered. In his opinion those experiences, particularly your father’s violence, the death of your mother and brother, the breakdown of your earlier relationships and loss of contact with your children, would have contributed to a general stunting of your personality development and to your emotional disturbance. Dr Walton allows for the possibility of lapses into amphetamine induced psychosis, although he notes he has never seen any clear cut psychotic phenomena.
58 In his most recent report, Dr Walton says “it has been my repeated advice in the past, and I have attempted to address the issue directly myself with Mr Bavage, but at no stage has he undergone a satisfactory trial of mood stabilising medication, which remains strongly indicated. Neither has he completed drug rehabilitation.”
59 In his 2001 report, prepared in respect of pending exposure charges, Dr Walton described you as a far from typical exposer. That was based, not only on the conduct itself, and your explanations for it, but on the variety of other convictions. He noted that exhibitionists usually attracted sexual charges fairly exclusively. In his 2006 report, prepared in respect of other offences, not sexual offences, he again described you as “a most atypical exhibitionist” given the particular circumstances in which your offending occurred, the lack of background of any particular sexual problems otherwise, and the fact you were reasonably socially competent.
60 In his most recent report, prepared after the convictions in respect of all matters I am dealing with but for the rape of the 13 year old in 1993, he concluded “I was impressed previously that Mr Bavage was a quite atypical exhibitionist and that continued in the sense that it is well recognised that men given to genital exposure usually do not progress to physical contact with victims but there are exceptions and Mr Bavage would appear to be one, which, in a sense, is consistent with his inconsistent psychiatric profile.”
61 Dr Walton rules out any mental illness which could explain the fact you do not acknowledge any wrongdoing in respect of any of the victims, and any mental state defence which may have been available.
62 At its highest, Dr Walton’s opinion amounts to this. You have no mental illness or impairment. You have an unusual pattern of sexual offending, as your initial convictions were for exhibitionism, and it is rare for exhibitionists to progress to physical contact with victims. You have a 30 year history of parallel offending: exhibitionism and serious sexual offences involving physical contact. You have a mild cognitive deficit, which contributes to your long standing emotional instability and likely compromises your capacity for consistent and proper judgment. Your adverse life experiences, combined with your long term amphetamine abuse, have contributed to a general stunting of your personality development and to emotional disturbance.
63 This is a thin basis for seeking to invoke any of the Verdins[9] principles. Although it is no longer necessary to identify a serious psychiatric illness not amounting to insanity, it is necessary to identify a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a serious mental illness.[10] I do not consider that emotional instability, compounded by a mild cognitive deficit, adverse life experiences and amphetamine abuse, and an atypical pattern of sexual offending constitutes “a mental disorder or abnormality or an impairment of mental function” as those terms were used in Verdins. Even if I were satisfied that you suffered from a mental disorder or abnormality or an impairment of mental function in the Verdins sense, I am not satisfied that it bears on any of the 6 factors identified in that case so as to reduce the sentence otherwise appropriate.
[9]Verdins; Buckley; Vo (2007) 16 VR 269 at [32]:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[10]Verdins at [5].
64 I am not satisfied there is any causal connection between your emotional instability, compounded as it is by your mild cognitive deficit, adverse life experiences and amphetamine abuse, and any of the offences. I do not consider that Dr Walton’s finding your brain damage contributes to your impulsive tendencies bears on the commission of the offences. Although there was an element of opportunism in much of the offending, the offending smacks more of control than lack of it. For these reasons it does not reduce your moral culpability in respect of any count and the weight to be given to denunciation is not reduced as a result.
65 Nor, having regard to the number and seriousness of the offences, is this a case where any sentence other than one of a substantial term of imprisonment is appropriate. This is not a case where your condition is such as to justify a sentence other than a substantial term of imprisonment, immediately served. The condition does not in my view, warrant the moderation of general or specific deterrence. As I have found, there is no causal connection between the condition and the offending. Nor, in my view, is the condition one which makes you less able to control your sexual offending, and so to make you an inappropriate vehicle for general or specific deterrence. Although you have some cognitive deficits, which could make you a slower learner, it is not suggested they are such as to make you incapable of learning. Finally, the evidence does not suggest that imprisonment would be more onerous as a result of your condition, or that imprisonment will likely adversely affect it, and therefore have a more deleterious impact on your mental health than it would on a person without your condition.
Denunciation, punishment, general and specific deterrence
66 Your offending is clearly at the high end of seriousness. Considerations of denunciation, punishment, general and specific deterrence, and of protection of the community are of great significance. The offences were committed over a period of 30 years. In all cases but the last, there was a breach of trust. The offences were committed on the children of families into whose homes you had been welcomed. In all cases but that of the 17 year old, the offences were perpetrated on the children as they lay sleeping in their beds. The offences were all brazen. You took advantage of children sleeping in the family home or campsite, within earshot of family members, or in the case of the 17 year old, raping her in your car in broad daylight in a public place. As well as brazen, they were, except for the case of the 17 year old, also stealthy. You entered bedrooms or campsites and managed to start before the children woke, and to continue without alerting anyone else nearby to what was happening. Infliction of pain was also feature of your offending. You forced yourself on a number of your victims, in the case of the 17 year old, in a forceful and brutal way. You inflicted physical pain on her, and the other victims of the penetrative offences. You made each child fearful, and those who knew you were too afraid to tell anyone what you had done. You threatened some victims to prevent them telling anyone what you had done. The threats were cruel. You told the two sisters they would get into trouble if they told anyone. This not only ensured their silence, it caused other harm, making them believe that what had happened was their fault, or that they had done wrong. Your threat to the 17 year old was particularly manipulative and cruel, threatening to do the same to her younger sister if she disclosed. None of the victims known to you complained at the time, or for a considerable time. Whether this means you deliberately chose victims you believed would not complain, whether you engaged in a course of conduct designed to make them afraid to complain, to fear being disbelieved or blamed if they said anything, whether you were able to exert power over them to such an extent that they felt powerless to complain, whether your relationship or their perception of your relationship with their parents or, in the case of the 13 year old, her older sister had any bearing on their sense of powerlessness, I cannot determine. Certainly each of those who knew you spoke of their sense of powerlessness, their fear, and of not knowing what to do.
67 Some offences may have been spontaneously opportunistic, such as the case of the 13 year old, and the last offence at the caravan park, where, on the crown case and consistently with the verdict of guilt in respect of the aggravated burglary indicates, you were prowling for the purposes of stealing. Others clearly relied on the child being available to you, as in the case of the two sisters, but required you to seek them out each time. In the case of the 17 year old, you lured her into your car, deceived her, and took her, when she was in your power to a secluded place where detection and escape were unlikely. Whether spontaneous, opportunistic or planned, the offending was all clearly predatory.
68 Whilst the evidence in relation to the two sisters suggests that, at least at that stage, or the early stage of your offending with them, you were obtaining sexual gratification from what you were doing, that does not always seem to be the case. The evidence in relation to the last incident with the younger of the two sisters, the 13 year old girl, and the 17 year old, suggest more brutal, pain inflicting sexual penetrations than the earlier conduct with the sisters.
69 The wide range in age of your victims is also of concern, as is the fact your offending is what Dr Walton describes as atypical. The victims range from pre pubescent children, through to adolescents and finally to a late teenager. Your denial of the offences is also a factor to take into account, not as punishment for doing so, but because it points to a high risk of reoffending. That you represent a high risk of reoffending is also demonstrated by the number and nature of your prior convictions for sexual offences and the extensive history of concurrent other offending.
70 Throughout all the offending, you displayed a cruel and callous disregard for the rights of these children. You used them, whether for your sexual gratification, or to exercise power over them. You robbed them of their innocence and childhood. You have caused great pain to each of them, but particularly to those who are now adults, great and lasting pain and harm. You have caused great harm too to the families of the victims, particularly the family of the youngest child, your most recent victim. What you did to these children represents everybody’s worst nightmare. It is conduct such as you engaged in which makes it necessary for parents to view their friends and neighbours with suspicion, to warn children not to trust adults, not only strangers, but also those who they have welcomed into their homes. It makes children suspicious and fearful. It makes parents and children alike afraid in their homes, in their beds and in their sleep. It tarnishes childhood memories and the dreams of carefree family holidays.
Totality
71 It is a fundamental feature of sentencing in this State that, when sentencing a person for multiple offences, that each individual offence receive a sentence reflecting the gravity of the particular offence, and that orders for partial cumulation, or partial concurrency between the individual sentences be made so that the total sentence for all offences is just and appropriate and reflects the overall gravity of the offending.
72 By reason of your previous convictions for sexual offences, you come to be sentenced for all offences except the false imprisonment count in respect of the 17 year old victim, and the aggravated burglary count in respect of the
seven year old victim, as a serious sexual offender. Although that creates a presumption in favour of cumulation in respect of all sexual offence sentences, that presumption must be, at least partially displaced in this case. A strict or literal application of the presumption would result in a meaningless sentence, as it would result in a the fixing of the term of years which is more than double the average male life expectancy. The Sentencing Act also provides, when sentencing a serious sexual offender, that protection of the community is the paramount consideration. It therefore permits the imposition of a disproportionate sentence if it is necessary to do so to reflect that. I accept the Crown submission that it is not necessary in this case to impose a disproportionate sentence in order to meet the needs of protection of the community.
73 Although therefore total cumulation is not called for, it is clear there must be partial cumulation of the sentences to reflect the number of victims, the number of offences and the totality of the offending. When looking at the partial cumulation orders, it is necessary to look at the individual sentences per offence and per victim, and to avoid using crude arithmetic measures in an attempt to apportion the total effective sentence on a per offence or per victim basis.
74 For all of these reasons, cumulation must be moderated. The total sentence must conform with the principle of totality, that is, reflect the overall wrongdoing. When looking at substantial terms of imprisonment, as is the case here, the authorities often refer to the need to impose a total sentence that is not crushing. Accepting that in one sense, any sentence of imprisonment could be regarded as crushing, or that any sentence over a certain length could be regarded as crushing, or any sentence on a person of mature years or in poor health could be regarded as crushing, that term has nonetheless come to have a particular meaning in sentencing law. It means the destruction of any reasonable expectation of useful life after release, or provoking a feeling of helplessness about the prospect of ever being released, or of life beyond release.[11]
[11]Yates [1985] VR 41 at 48; Beck [2005] VSCA 11 at [19].
Ancillary orders
75 I direct that it be recorded that you are sentenced as a serious sexual offender in respect of all sexual offence counts.
76 It is not necessary to make any order in relation to your registration on the sex offender register, although all the sexual offences are registrable offences. You are already, by reason of previous convictions, on that register for life.
Sentencing submissions
77 The Crown submitted the individual sentences, and the overall offending conduct were at the higher end of the scale of seriousness. Mr Papas did not dispute that. For the reasons I have given, I have come to that conclusion myself. The Crown, at my request, made submissions as to the sentencing range open to me. The range was fixed by reference to that assessment of seriousness. They submitted the range for the total effective sentence was between 23 and 26 years, and 20 to 23 years for the non-parole period.
78 Mr Papas took issue with the range on two bases. First, that the range for the total effective sentence was too high, having regard to the concession a disproportionate sentence was not necessary, and to the need to impose a sentence that complied with the principle of totality and was not crushing. He submitted the total effective sentence should fall in the range of 17 to 21 years. Secondly, he submitted that there should be a greater difference than three years between the total effective sentence and non-parole period than that submitted by the Crown. He submitted that although the evidence at present did not suggest great weight could be given to your prospects for rehabilitation, when looking at a head sentence of the order contemplated, your prospects for rehabilitation so far in the future could not be accurately predicted now. That is a sound submission, and I accept it. No matter how poor your prospects for rehabilitation may appear today, I should not lightly close off the prospects for reform, or seek to discourage them. He submitted, and I agree, that a considerable allowance should be made when fixing a
non-parole period for the prospects of future reform. He submitted, having regard to the total effective sentence, a gap between the total effective sentence and non-parole period in the order of five years was more appropriate.
79 In the end, the sentences I have fixed on for the individual sentences fall within the limits proposed by the Crown. When cumulated, the total effective sentence falls just outside it. Although ultimately of course the sentencing discretion is mine, and not for the Crown or the defence, I found it of considerable assistance to hear the carefully considered submissions from both parties on the range.
80 When making the sentencing orders, I will express them for ease of calculation as partial cumulation not partial concurrency orders, although as my earlier reasons I hope make clear, I appreciate that for the sexual offences, the presumption is the other way. Could you now please stand, Mr Bavage.
Sentences
Presentment C0705893A
81 On all four presentments in respect of which the juries have found you guilty, you are convicted of each offence. You are sentenced as follows:
Count Description Sentence Cumulation 1 Indecent assault on a girl under 16 years
· digital penetration of the older sister (first instance, uncharged acts)
3 years 2 Indecent assault on a girl under 16 years
· licking the vagina of the older sister (first instance, uncharged acts)
3 years 3 Indecent assault on a girl under 16 years
· oral penetration penis/mouth of the older sister (first instance, uncharged acts)
3 years 4 Carnal knowledge of a girl under 10 years
· older sister (first instance, uncharged acts)
7 years
Base sentence 6 Attempted Indecent assault with a girl under 16 years
· of the older sister (single instance)
4 years 1 year 7 Indecent assault on a girl under 16 years
· digital penetration of the younger sister (first instance, uncharged acts)
3 years 8 Indecent assault on a girl under 16 years
· licking the vagina of the younger sister (first instance, uncharged acts)
3 years 9 Indecent assault on a girl under 16 years
· oral penetration penis/mouth of the younger sister (first instance, uncharged acts)
3 years 10 Sexual penetration of a child under 16 years
· younger sister (first instance, uncharged acts)
· different in age from older sister (different charge to count 4, maximum penalty of 10 years not 20 years)
7 years 4 years
82 That makes on that presentment a total effective sentence of 12 years. I note that in the schedule in respect of Count 10, that that says "Younger sister, first instance, uncharged acts" - it is of course, "Last instance" and uncharged acts.
Presentment C0705893D.3
83 In relation to the 1993 offence, you are convicted and sentenced as follows:
Count Description Sentence Cumulation 1 Rape
· digital penetration of the 13 year old sister of your girlfriend
10 years
84 That is a one count presentment and that makes a total effective sentence of 10 years on that presentment.
Presentment C0705893E
85 In relation to the 2002 offence in respect of the 17 year old girl, you are convicted and sentenced as follows:
Count Description Sentence Cumulation 1 Rape
· 17 year old girl at Pyke’s creek
14 years Base sentence 2 False imprisonment 3 years 1 year
86 That is a total effective sentence of 15 years on this presentment.
Presentment W00206941.1
87 You are convicted and sentenced as follows:
Count Description Sentence Cumulation 1 Aggravated Burglary 3 years 1 year 2 Indecent Act with a child under 16 years
· Licking the vagina of the 7 year old child in the caravan park
7 years Base sentence
88 That is a total effective sentence of 8 years on this presentment.
Cumulation between presentments
89 I should say that all sentences are concurrent unless I direct that they be served cumulatively or partially cumulatively on all presentments. Cumulating them between presentments, I direct that the total effective sentence be calculated by cumulations as follows:
Presentment Total effective sentence on single presentment Cumulation between presentments C0705893A 12 years 6 years C0705893D.3 10 years 3 years C0705893E 15 years W00206941.1 8 years 3 years
90 That is a total effective sentence of 24 years on the 4 presentments.
91 I direct that the minimum term to be served before being eligible for parole is 20 years imprisonment.
Pre-Sentence Detention
92 I declare that you have spent 839 days in pre-sentence detention, and direct that it be reckoned as part of the sentence already served. There are no ancillary orders, are there?
93 MRS QUIN: There is just one matter, Your Honour.
94 HER HONOUR: You can be seated, Mr Bavage.
95 MRS QUIN: In terms of the adding up, Your Honour, with the base sentence of 15 and cumulation of 6, 3 and 3, that adds up to 27, not 24.
96 HER HONOUR: That is what I said.
97 MRS QUIN: Your Honour indicated 24.
98 HER HONOUR: No, I said 27. I am sorry, I meant 27. It was 27 years on the four presentments, I beg your pardon.
99 MRS QUIN: The only other matter, Your Honour, is that there is a disposal order. I think that was handed up.
100 HER HONOUR: Yes, it was. I make the disposal order.
101 MRS QUIN: The application for compensation, I think, was made at the time of the last hearing.
102 HER HONOUR: Foreshadowed.
103 MRS QUIN: And adjourned to a date to be fixed. If Your Honour could provide a date, perhaps in September of this year, it is hoped by that stage those applications can be - I do not know whether Your Honour has to fix a date or whether the relevant parties could contact your associate when that was necessary.
104 HER HONOUR: I will not fix a date today but what I will do is fix a directions hearing or a mention in respect of that for some time in August.
105 MRS QUIN: Yes, Your Honour.
106 HER HONOUR: With a view to fixing a date for the hearing of the applications in September if that suits the convenience of the parties but I would rather have a directions hearing first so that any procedural matters in relation to finding the materials can be sorted out well in advance so if that the hearing date is set, it will be understood to be a hearing date.
107 MRS QUIN: Yes, Your Honour. The only other matter, Your Honour, in the course of Your Honour giving your reasons in respect of Counts 1, 2, 3, 7, 8 and 9 of the two sisters presentment, reference was made to an indecent act with a child under 16 and Your Honour would be aware that is reflected in the sentence in the end. It is in fact an indecent assault with a child under 16.
108 HER HONOUR: Thank you. I tend to use the words interchangeably. I hope that my reasons for sentence made it clear that I have distinguished between, in terms of penalty, indecent assault as it then was.
109 MRS QUIN: Yes.
110 HER HONOUR: With a five year maximum, an indecent act, as it now is with the 10 year maximum and I will place on record that the sentences that I have fixed in respect of that first presentment in relation to the two sisters was with an understanding that I was sentencing for indecent assault. That carrying the five year maximum sentence.
111 MRS QUIN: Yes Your Honour, thank you.
112 HER HONOUR: The other thing that I want to place on record is this, that there was an arithmetical error in my calculation of the cumulations or partial cumulations that was in the draft of the sentencing reasons that I provided to you before I started reading them. When I realised that, that was one of the reasons why I adjourned and corrected that. It had always been my intention, I want to put this on record, that the partial cumulations - that is in effect, three years cumulation per victim, on that base sentence, was the partial cumulation I intended and that it was to work then with the sentence of the 15 years in respect of the 2002 offence.
113 I appreciate that that can create uncertainty and difficulty where an arithmetical error occurs. But it was always my intention to work upwards from working out the sentences per each lot of presentments, the total effective sentence per presentment and the cumulations rather than arrive a total effective sentence and then work back to apportion the partial cumulations to reflect that. But because you did receive the draft with the mistake, I thought it was important to have on record what my intention had been and the approach so that there is no uncertainty left about it so that if it is to be taken up at another place at another time, which is Mr Bavage's right if he wishes to do so, that it is clarified now rather than later.
114 MR LEWENBERG: Thank you, Your Honour.
115 HER HONOUR: Anything you want to raise concerning that, Mr Lewenberg?
116 MR LEWENBERG: No Your Honour.
117 HER HONOUR: No further ancillary orders then?
118 MRS QUIN: No, Your Honour.
119 HER HONOUR: Could you remove Mr Bavage please.
(Prisoner removed)
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