Director of Public Prosecutions v Alchin
[2024] VCC 944
•21 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01870
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY PHILLIP ALCHIN |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2024 | |
DATE OF SENTENCE: | 21 June 2024 | |
CASE MAY BE CITED AS: | DPP v Alchin | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 944 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Failing to comply with reporting obligations; Supply of drug of dependence to a child; Sexual assault of a child under the age of 16
Legislation Cited: Sentencing Act (Vic) 1991; Sex Offenders Registration Act (Vic) 2004
Cases Cited:R v AWF [2000] VSCA 172; Verdins v The Queen (2007) 16 VR 269; Gordon (a pseudonym) v The Queen [2013] VSCA 343; DPP v Reynolds (2002) 71 VR 336;
Sentence: Convicted and sentenced to a total effective sentence of 4 years, with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr A. Paull | Adrian Paull Criminal Lawyers |
HER HONOUR:
1Gary Alchin, you have pleaded guilty to nine charges of failing to comply with the reporting conditions of the Sex Offenders Registration Act, three charges of sexual assault of a child under the age of 16, two charges of supplying a drug of dependence to a child, and one charge of being a sexual offender loitering near a school.
Summary of Offending
2On 17 December 2010 you had been sentenced to a total term of imprisonment of seven and a half years, with a non-parole period of five years. These sentences were for 10 charges of sexual offending against children. As a result of these convictions and sentences you were required, pursuant to the Sex Offenders Registration Act, to comply with the reporting conditions under that Act, for life.
3You were aware of these requirements, having reported annually since your release from custody in 2018. You had received a notice of your reporting obligations each time you reported annually. Part of the requirements were that you report any changes in the details as to the names, ages, addresses and telephone numbers of any children with whom you have had contact. The definition of 'contact' is broad. A child, for the purposes of that Act, is a person under the age of 18.
4There are nine children complainants in this case, between the age of 12 and 16 years.
Charges 1 – 7
5In April 2021 you moved into a unit in a complex for people over the age of 55, in Wendouree. You reported this change of address as required. To get to your local shops you had to take public transport, as you did not have a car. Complainants 1, 2, 3, and 5 would regularly catch a bus on the same route. You encountered each of them at the bus stop and engaged them in conversation. Complainants 1 and 2 were girls, aged 16 and 14 respectively. Complainants 3 and 5 were brothers, who were both 15 at the time.
6You told these children where you lived. You said you had a collection of military items, and cats. You invited the boys to your flat to look at the military memorabilia and asked them to ask their mothers for permission to visit your flat.
7You failed to report these contacts with the children.
8Charge 4 relates to contact with a 14-year-old boy who was the great-nephew of another person who lived in the same apartment complex as you. Complainant 4 would visit his great-aunt and stay overnight sometimes during the school holidays. You would visit that apartment when he was there, and you also invited him to visit your flat to look at the memorabilia. He did so and was at your flat for around 30 minutes. It is not alleged that anything untoward happened whilst he was visiting you. You also attended the flat of your neighbour to say goodbye when it was time for Complainant 4 to go home. The charge is that you failed to report this contact.
9In mid-December 2022 you met and spoke with Complainant 6, who was a 14 year old boy. He was a vulnerable youth who was reported missing from his home at one point during this offence. You spoke to Complainant 6 for around an hour to an hour and a half on this occasion. You failed to report this contact, which gives rise to Charge 6.
10In mid-January 2023, Complainant 6 and 7 were filming scooter tricks around your address. You went outside and told them to quiet down. Complainant 6 asked for a drink and both boys went into your unit for a drink of cordial. They boys stayed inside your unit for around two hours. Complainant 7 was a 15-year-old boy. You failed to report contact with him, giving rise to Charge 7.
Charges 9, 10 and 11
11On 31 January 2023, Complainant 6 visited your home in the evening. He was reported as missing at 6.30 pm that day. That evening you, Complainant 6 and another man who was given the name 'Geoff' went and played basketball together on the grounds of a school. This gives rise to Charge 9, being a sex offender loitering near a school.
12Complainant 6 and Geoff played that game, and you watched and waited nearby. At around 10 pm, you and Complainant 6 went to a local Woolworths where you purchased non-alcoholic beer. The two of you went back to his unit where you drank the beer. You also gave Complainant 6 a bong with cannabis in it, which he smoked. He reported no effect from the beer, which he thought had alcohol in it, or from the cannabis. This conduct gives rise to Charge 10, supplying a child with a drug of dependence.
13Complainant 6 fell asleep on your couch. He was wearing his pants, underpants and a T-shirt. At some point during the night, he woke up to find you leaning over him touching his penis. You had pulled his pants and underpants down to his knees. You rubbed and masturbated Complainant 6's penis – Charge 11 sexual assault of a child under 16 relates to this conduct.
14Complainant 6 fell asleep again, and then left at around 9 am the next day. He disclosed the offending some weeks later to his sister, and then in the middle of 2023 to the police.
Charges 12 & 13
15Near the start of February 2023, Complainant 5 (who was a 15-year-old boy) and 9 (a 13 year old boy) visited your home to look at your military memorabilia. You had met Complainant 5 at the bus stop, to which I referred earlier. These boys visited again later and invited Complainant 8 (who was a 12 year old boy) to come with them, which he did. The first time Complainant 8 visited your unit the boys were there for around half an hour. There were later visits which became shorter in time. Charge 12 concerns your failure to report your contact with Complainant 8, and Charge 13 is your failure to report your contact with Complainant 9.
Charge 8
16On an occasion when Complainants 5, 8 and 9 were visiting your unit, you gave Complainant 5 a bong to smoke. You put a small amount of Cannabis in the bong but told the boy it was just tobacco. When he pointed to some green matter in the bong-pipe you admitted that there was some 'green', meaning Cannabis, in it. That is Charge 8, supplying a drug of dependence to a child, namely Complainant 5, who was 15 years old.
Charge 14
17Charge 14 is a charge of sexual assault of Complainant 8 when he was visiting your flat. On the second occasion that Complainant 8 visited you, he was with Complainant 5 and 9. You asked Complainant 8 and Complainant 5 into your bedroom, to look at some army items there. Complainant 5 left the room, leaving you and Complainant 8 in the bedroom. You were standing behind Complainant 8 and put your hand between his legs, grabbing his penis and testicles. He pushed your arm away and left the room.
18You stayed in the bedroom. Complainant 8 told his friends what had happened, and said that they should leave.
19On another occasion Complainant 8 went to your home, by himself, to get a pump for a tyre. You told the boy he could have it but that he would owe you. As he went to leave you grabbed him and hugged him, and then reached down and grabbed and squeezed and pulled at the boy's penis.
20A week later Complainants 8, 9 and 5 and another boy went to your unit. At one point you told Complainant 8 he owed you something, and then you tried to grab him on the bottom. Complainant 8 twisted himself away from you and left. This event is put in for context and is not a charged act.
21Charge 14 is a rolled up charge covering both sexual assaults of Complainant 8.
Charge 15
22Also in February 2023, there was an incident when Complainants 5, 8 and 9 were in your unit. You and the boys were mucking around. You pushed Complainant 5, and reached down and grabbed his penis and twisted it, causing him pain. He pushed you away.
23On a separate occasion, Complainants 5 and 8 were at your unit. Complainant 8 was in the kitchen pouring a drink. Complainant 5 went into the kitchen, also for a drink, and Complainant 8 called out to you that there was a cat inside. You went into the kitchen and went to grab the cat. In doing so you touched Complainant 5 on the upper thigh. You said sorry, you had not meant to hit him there. You then moved you hand up and briefly touched him on the testicles.
24Charge 15 is a rolled up charge covering both sexual assaults of Complainant 5.
25When interviewed by the police you admitted to having contact with children, but you denied the other offending.
Victim Impact
26Victim Impact Statements have been provided by Complainant 5 and his mother.
27Complainant 5 writes that he had not realised what was happening on the night he fell asleep on your couch, until a few days later. When he did realise what had happened, he was shocked, surprised, angry and concerned. He says he smashed up his room and hurt himself. He found it difficult to speak to his family or a counsellor about this, and he distracted himself from what had happened. He would get angry and into physical fights with his father, damaging that relationship and he also felt he could not spend time with his best friend.
28Complainant 5's mother writes of her increased concern about the safety of her children. Her sleep is disturbed, and she is untrusting of people with her children. She goes out less, as she finds it difficult to be in public or socialise.
Personal Circumstances
29You are now 59 years old. You are the middle of three children, and you have had a good relationship with your younger sister. Your parents are now in their 90s and continue to support you. You describe, for the most part, a fairly normal childhood with your parents working and your family being financially stable, though not well off. You were the middle child and felt that your older and younger siblings got more attention than you.
30You were an average student at school, and you report some learning and behavioural issues. You finished Year 8 and then worked in various jobs until you were 29. You then ceased work and went onto the Disability Support Pension. You have reported that you went onto the DSP because you were suffering from Post Traumatic Stress Disorder following a home invasion, and also because you had suffered a back injury.
31You were violently sexually assaulted when you were serving a term of imprisonment in New South Wales when you were 21 years old, that term of imprisonment was for two charges of burglary.
32You report that you became aware that you were bi-sexual when you were still a child. This was confronting for you. You were sexually abused by a much older cousin over the course of several years when you were visiting that family interstate, commencing from when you were around 11 years old.. You report that at the time you were not hurt and you felt loved by the attention that your cousin gave you.
33You have had several relationships with others, but the last of these was around 20 years ago.
34You tried Cannabis at age 15, and then you moved onto significant use of speed in your 20s, contracting Hepatitis C. Closer in time to this offending, you report, you had been introduced to methylamphetamine by a neighbour, and you liked its effect. You say that you used that drug around four times. Alcohol is not, apparently, problematic for you.
35Mr Candlish, a psychologist who assessed you for the purposes of the plea, reported regarding your drug use:
Mr Alchin described consistent cannabis use. … He described how he was smoking 7gms per week for several years. He stated that he ceased cannabis use in 2012, however, he relapsed to cannabis use in 2020, describing how he would 'have a drag here or there' and started to smoke more frequently from 2022.[1]
[1]Candlish [51]
36Mr Simmons reported that you told him that you had had the occasional joint in the last one to two years[2] but you told Dr Treeby that you were using cannabis more regularly since 2020, and that around the time of the offending you were using that drug most days. You told Mr Simmons that whilst you relapsed into use of amphetamines in your 30s, this was no longer a problem.
[2]Simmons [16]-[18]
37I was told that in the lead up to this offending you had suffered a downturn in your mental health due to some issues with your neighbours. This, it was submitted, led to you self-medicating by smoking more cannabis. You also commenced using methylamphetamine, as I have already referred to.
38You are a keen collector of army memorabilia and are proud of the collection you have accumulated.[3] You also enjoy gardening. Whilst on remand you have been involved in gardening and recycling tasks.
[3]Treeby [20]
39Your criminal history includes a range of offences including dishonesty, a low-level charge regarding cultivation of cannabis, possession of firearms offences, and significantly the sentences for sexual offending against children, for which you were sentenced in 2010. You were released in 2018.
Physical Health
40You suffered a badly broken leg when you were 18 and never had a full recovery from that injury. You also suffer from scoliosis and a spur in the vertebra of your neck. I was told that you reported having been diagnosed with Chronic Obstructive Pulmonary Disease (COPD), Gastro-oesophageal reflux disease (GORD), anxiety, depression, restless leg syndrome and neuropathic pain.[4] You are prescribed a range of medications for these conditions.
[4]Simmons [21]
41Whilst in custody on this occasion you have had orthodontic surgery related to getting new dentures. Mr Simmons thought that your time in custody would be more difficult due to physical ailments, and lack of access to opiate medication.[5]
[5]Simmons [34]
Mental State
42Three psychological reports were tendered on the plea. In summary the following diagnoses and opinions were given:
(a) You reported to Mr Simmons that you were having trouble sleeping, your appetite was reduced, and you sometimes felt suicidal and hopeless but you had no intention of acting on those feelings[6]
(b) The diagnoses given by Mr Candlish were that you met the criteria for:
§moderate personality impairment,
§depressive disorder,
§generalised anxiety disorder,
§somatic symptom disorder,
§delusional disorder, and
§Paraphilic disorder including paedophilia, hebephilia, connected to male children.
[6]Simmons [22]
Mr Candlish thought that you presented with potentially some cognitive deficits.[7] He did not consider that you met the criteria for Post Traumatic Stress Disorder, but he did think that you had some behaviours related to your anxiety and personality impairment.[8]
(c) Because of the concerns raised by Mr Candlish about your cognitive capacity, you were also assessed by a Neuropsychologist, Dr Treeby. He assessed your general intellectual functioning as falling in the average range. Notably there was no issue with your executive function and your ability to learn new information was in the average to high-average range. He also considered that you met the criteria of a paedophilic disorder.
[7]Candlish [2]-[3], [107] – [119]
[8]Candlish [116]
Prior Sexual Abuse
43A matter that was raised on the plea was the prior sexual abuse. It was submitted that the link between the abuse that you suffered when you were a child and the offending reduced your culpability. I accept that there is a link between the sexual offending against you when you were 11 and in the years following, and your paraphilia. I accept that if you did not have those sexual interests, then the offending would not have occurred. I accept, as was said by Chernov JA in 2000:[9]
the fact that the [offender] was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender's personal circumstances and thus, goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct. Moreover, the weight that is to be given to it is another matter.
[9]R v AWF [2000] 172, [34]
44On the one hand, you told the various assessors that you know the sexual contact with children is wrong and you state that you are aware that it can be harmful to them. At the same time, you still perceive the relationship with your older cousin, who abused you when you were a child, as a positive relationship.
45To the extent that the sexual interest you have in children is a result of the abuse that you were subjected to at a formative time in your life, I accept that that is a factor in some mitigation, but this is limited in view of the fact that you well understood you should not act in this way, and had been able to not act on your deviant sexual interests for many years.
Verdins
46It was submitted on your behalf that you had been experiencing a decline in your mental health, with increased depression and anxiety. Mr Paull submitted that you increased your drug use in a misguided attempt to make yourself feel better, and that this reduced your ability to exercise good judgment. Thus, he submitted, your offending appears to have been caused by a combination of your paraphilia, personality issues, increased anxiety and depression and concomitant increased drug use. He argued that whilst there were multiple factors at play, because your mental health compromised your ability to exercise good judgment, this reduced your culpability to a degree.
47This submission rested on the opinions of Mr Candlish.
48Mr Candlish's opinion regarding the impact of your mental health and the offending was set out as follows:[10]
Is there any nexus between our client's mental health and the offending before the court?
155. Mr Alchin's complex clinical presentation impacts on his state of mind and clarity of thought. His characterological issues contribute to disorganisation and unusual ideas and behaviours. He is more likely to rely on dysfunctional coping such as cannabis use to manage his negative mood states. His cannabis use contributes to disinhibition of his general and sexual behaviours and disinhibits his distorted thinking. His trust issues (which are personality based) in the context of disinhibition, mean that he is more prone to having interactions with children compared to adults.
If so, what level if any can it be considered that our client's mental health is relevant to the offending before the court?
156. Mr Alchin's mental health is regarded as having significant relevance in understanding his index sexual offending. He is a complex individual. He has a paraphilic disorder and his capacity to manage this is undermined when his mental health is compromised. His management of his mental health is impacted by the nature of his characterological issues (personality impairment) whereby his distrust, paranoia and delusional ideas lead to a reduction in his interactions with others and difficulties forming emotionally close relationships. It reduces his capacity to meet his sexual need appropriately with adults. He has experienced anxiety and depression and it seems he had experienced increased emotional stressors prior to his offending.
[10]Candlish [155]-[156]
49As to the impact of drug use, Mr Candlish said:
It is the interaction between his impaired mental health, his characterological issues and his cannabis use that contributes to Mr Alchin's offending.[11]
[11]Candlish [157]
50Earlier in the report Mr Candlish had said:[12]
Mr Alchin's cannabis use, possible decline in his mental health, and increased emotional stressors might have contributed to his index sexual offending by causing disinhibition and reducing his capacity for consequential thinking and rational thinking.
[12]Candlish [152]
51I also note the opinion of Dr Treeby, who considered that whilst you suffer from low mood and anxiety at the moment, or when he assessed you, and you have also had past difficulties with depression. He said however in respect to the depression 'there is no conceivable link between this and Mr Alchin's alleged sexual offending behaviour'.[13] Of course, the focus of Dr Treeby's report was the cognitive assessment, but he did take a detailed history from you. He also said:[14]
Mr Alchin has an intact ability to engage in consequential thinking, he does not have an impulse control disorder, and he does not have any other cognitive impairment which can help explain his alleged sexual offending. Non-cognitive factors (i.e., Mr Alchin's deviant sexual interests, his use of maladaptive coping strategies, and interpersonal functioning issues) would all appear to be more relevant in terms of explaining his most recent contact with the criminal justice system.
[13]Treeby [70]
[14]Treeby [67]
52Mr Simmons did not express an opinion on this issue, but I note that both the other reports were more thorough and detailed in respect to background information and opinions.
53You report increased drug use from 2022. To the extent that your ability to exercise appropriate judgment and self-control was impacted by your drug use, this does not reduce your culpability.
54Whilst the evidence that you had experienced a decline in your mental health, which you attempted to deal with by taking drugs is limited, I will accept that there was some decline in your mental health over 2022 into 2023. Even accepting that, however, it appears to me that the principal factor which lowered your inhibitions and thus impacted your judgment, was your consumption of cannabis and possibly methylamphetamine, not the lowered mood or other mental health issues.
55Your decision to increase your use of cannabis and to use methylamphetamine may have been a maladaptive coping strategy, but it was a decision made by an adult with significant cognitive capacity to understand the risks, particularly in view of the fact that your earlier offending had also been in the context of substance abuse (in that case being alcohol and cannabis).[15]
[15]Candlish [23], [150]
56I do not accept that general deterrence is to be moderated by reason of your mental conditions. In Verdins the Court said:[16]
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends on 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.
[16]Verdins v The Queen (2007) 16 VR 269, [32]
57Your mental capacity, personality disorder and other conditions, are not of such a severity or nature that you are not an appropriate vehicle for the full weight of general deterrence. To the extent that they are present and impact your life, any moderation of general deterrence is slight.
Other Verdins Issues
58I accept that the combination of your personality traits and persistent low mood will make your time in custody more difficult, and that there is a risk that if you face a long term of imprisonment, your mental health would decline. I will moderate your sentence to a degree on this basis.
Prospects of Rehabilitation
59As I have noted already, in 2010 you were sentenced to seven and a half years' imprisonment for sexual offending against children. You were released in mid-‑2018. Whilst serving that sentence you did the Sex Offenders Program at Langi Kal Kal prison.
60You report that you felt tempted by the boys in this case, but you could not explain why you acted as you did. You state that you did not enjoy your previous prison term of imprisonment and had not wanted to return to custody. You told the psychologists who assessed you that you were well aware that these offences were not something you should have done, and that they would have negative consequences for the victims.
61The offending for which you were sentenced in 2010 occurred in 1995 through to 1996, when you were in your late 20s and early 30s. The victims of that offending were brothers who were aged between 10-15 and seven to 16 years old. It involved touching and oral penetrative activity.
62Your counsel noted that there was no other offending after that, until these offences. You are involved in the GROW program, meeting with a counsellor approximately once a week for one hour. You also attend church.
63Mr Simmons thought that you would benefit from further treatment to help you understand and deal with your motivation for this type of offending. He considered you have a strong paedophilic interest. Your interest in boys of this age may be a reflection of your early sexual experience. You said you had difficulty understanding why you would be offending after so long.[17] This indicates that you have work to do to understand the risk factors associated with your offending behaviour.
[17]Simmons [32]
64Mr Candlish set out a detailed summary of your disclosures to him about your sexual history, including with underage boys.[18] It is apparent from that summary that you have delusional beliefs about the willingness of boys to engage in sexual activity with you. You are apparently motivated to engage in treatment.[19]
[18]Candlish [74]-[90]
[19]Candlish [100]
65Both Mr Simmons and Mr Candlish carried out an assessment of your risk of further sexual offending:
(a) Mr Simmons used the Static-99R on which you were scored at 4, indicating an above average risk category of committing further sexual offences upon release. Mr Simmons recommended referral to a sex offender's treatment program.
(b) Mr Candlish utilised both the Static-99R and structured professional judgment approaches. He assessed you as falling into the moderate-high risk category for further sexual offending in respect to touching the genitals of boys between the ages of 12-16 and the moderate-low risk category for oral-‑penetrative type of offending.[20]
[20]Candlish [144]
66Dr Treeby did not carry out a formal risk assessment, but considered that you have the cognitive ability to benefit from traditional cognitive behavioural therapy.[21]
[21]Treeby [70], [72]
67Whilst on remand you have completed two courses – a six hour Alcohol and other Drug and Depression course, and also a course in respect to improving your self-esteem. It is to your credit that you have done this, but unless you make further progress at understanding and learning to control your paedophilic interest, then you remain a real risk of re-offending.
68Having regard to your history, and the circumstances leading up to this offending, as well as the number of children against whom you offended in this case, I accept the assessments of Mr Simmons and Mr Candlish. You present an ongoing risk of re-offending, and whilst you do have some prospects for rehabilitation, you have work to do to prevent yourself coming before the courts again.
Matters raised in Mitigation
69I accept that you entered pleas of guilty at an early stage and that you are thus entitled to a real discount in your sentence for the utilitarian benefit of the resolution. The witnesses, in particular the children, have not had to give evidence. Furthermore, there is the saving of time and resources for the justice system.
70I accept that your plea of guilty is also an indication that you understand that what you did was wrong and you regret it. You told Dr Treeby 'I could have avoided it. I knew it was wrong. I'm upset about what's happened. I feel pretty worthless and I'm sorry for everything. I can't change it. I shouldn't have left my guard down.'[22]
[22]Treeby [37]
71I have regard to your mental and physical health making your time in custody more difficult than it would be for a person without those conditions, and both of these factors lead to a degree of mitigation of your sentences.
Other Sentencing Factors and Principles
Gravity of Offending
72The charges of failing to comply with a reporting condition are each a breach of your obligation to report contact with children. Whilst the gravamen of the offence is the failure to report, I consider the fact that the failure related to contact with children makes these offences more serious than, for example, failing to report a change of job or phone number.
73There were two offences which involved Complainant 6. At the time he was 14. He was a vulnerable youth. On 31 January 2023, in the evening, he visited your flat. You, he and another man went to a school to play basketball sometime between 6 and 10 pm. Your attendance at that school gave rise to Charge 9, which given the hour of day was a low-level instance of that offence. The more serious conduct was that you provided him with cannabis (Charge 10), when he was staying in your flat overnight. When he fell asleep on your couch you pulled his lower clothes down and touched his penis (Charge 11). In light of those facts, I consider both Charges 10 and 11 were moderately serious instances of these offences.
74Charge 14 is a rolled up charge covering two separate instances of your touching Complainant 8 on the genitals. He was a 12-year-old boy. The first instance happened after the boy had visited, with friends, to look at your army memorabilia. You found yourself alone in your bedroom with him and you deliberately touched him on the penis and testicles. On the second occasion you took advantage of the boy attending your flat to borrow a pump, and you grabbed and squeezed and pulled his penis.
75Charge 8 and Charge 15 both relate to Complainant 5, who was 15 years old. Charge 15 is also a rolled up charge. The first assault in Charge 15 occurred when you took advantage of some rough housing with the boys to touch Complainant 5 on the penis, over his clothes. This touching hurt him, as you twisted his penis. The second incident again occurred when a number of boys were visiting you. You again quickly touched his genitals, over his clothes. On one occasion when several of the boys were visiting you, you gave this same boy a bong with cannabis in it.
76Whilst each touching was of these two boys was over their clothes, the sentences on Charges 14 and 15 must reflect that the charge covers two separate sexual assaults.
Serious Offender Provisions
77Charges 11, 14 and 15 are sexual offences for the purposes of the serious offender provisions of the Sentencing Act. You have previously been sentenced to terms of imprisonment for more than two sexual offences and so you fall to be sentenced as a serious sexual offender on each of Charges 11, 14 and 15. This means that protection of the community is the principal purpose for which the sentence ought to be imposed. The prosecution did not seek that a disproportionate sentence be imposed on those charges.
Totality
78The combined sentences must reflect the totality of the offending, including that there were three victims within a two-month period. The total effective sentence should not be more than is warranted when taking a step back and considering the whole of the offending.
79I must also have regard to the fact that you fall to be sentenced as a serious sexual offender on Charges 11, 14 and 15. The Serious Offender provisions in the Sentencing Act provide that the presumption is that the sentences on relevant charges be served cumulatively. The principle of totality still applies but it does so in a manner which will not undermine the intention of the legislative provision.[23]
[23]Gordon (a pseudonym) v The Queen [2013] VSCA 343, [74]; DPP v Reynolds (2002) 71 VR 336, [123]
Standard Sentence – Charges 11, 14, 15
80Charges 11, 14 and 15 each carry a standard sentence. The standard sentence which applies to those charges is four years' imprisonment. I must have regard to the standard sentence in determining what sentences I will impose on those charges. The standard sentence is not a starting point from which to work up, or down. Rather, it is a legislative guidepost, as is the maximum penalty, and it is one of the many factors which I must take into account in arriving at the sentence for any charge.[24]
[24]McPherson v The Queen [2021] VSCA 53, [31].
Sentences
81In addition to the matters which I have already covered, general deterrence is a significant factor in sentencing for sexual offending against children. Just punishment and denunciation of your conduct also are significant factors in sentencing. Because of your history as a sexual offender, and because of the circumstances in which you offended in this case, specific deterrence is an important sentencing factor also.
82Sexual offending against children can have long-term impacts upon them. It can undermine their confidence, it can undermine their development as people, and as can be seen in you it can have long-term impacts on their own sexuality and their future behaviour. Sexual offending against children is to be condemned.
83The sentences are as follows.
84On Charges 1, 2, 3, 4, 5, 6, 7, 12 and 13, which are the charges failing to comply with the reporting conditions, I sentence you to an aggregate sentence of nine months' imprisonment.
85On Charge 8, supplying a drug of dependence to a child, I sentence you to six months' imprisonment.
86On Charge 9, loitering near a school as a sexual offender, three months' imprisonment.
87Charge 10, supplying a drug of dependence to a child, 12 months' imprisonment.
88Charge 11, sexual assault, the sentence is two years and three months' imprisonment.
89Charge 14, the charge of sexual assault, two years and six months' imprisonment.
90Charge 15, sexual assault, two years' imprisonment.
91The sentence on Charge 14 is the base, that was two and a half years. I direct that six months of the sentence on Charge 15, six months of the sentence on Charge 11, one month of the sentence on Charge 10, one month of the sentence on Charge 9, and one month of the sentence on Charge 8, and then three months of the sentence from the aggregate sentence be served cumulatively upon each other and on the sentence on Charge 14.
92By my calculations that leads to a total effective sentence of four years' imprisonment and I impose a non-parole period of three years.
6AAA
93But for your pleas of guilty I would have sentenced you to six years imprisonment with a non-parole period of four years (and 6 months?).
94I state that you are sentenced as a serious sexual offender on Charges 11, 14 and 15, and I direct that this be entered into the records of court, pursuant to s6F of the Sentencing Act.
SORA
95Whilst you are already on the Sex Offenders Register, Charges 11, 14 and 15 are registrable offences, and you are thus further subject to the reporting conditions of the Sex Offenders Registration Act for life, by reason of the conviction on these offences.
96You have already served 476 days of pre-sentence detention and I direct that that declaration be entered into the records of the court.
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