Director of Public Prosecutions v Allen (a pseudonym)
[2023] VCC 2363
•13 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BORIS ALLEN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1st August 2023, 8 November 2023 | |
DATE OF SENTENCE: | 13 December 2023 | |
CASE MAY BE CITED AS: | DPP v Allen (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2363 | |
REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW
Catchwords: Sexual offences
Legislation Cited: Sex Offender Registration Act 2004
Cases Cited:R v Verdins [2007] VSCA 62
Sentence: Total effective sentence of four years imprisonment with a non-parole period of 2 years and nine months imprisonment; I reckon 21 days of pre-sentence detention as already served.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr P.A. Chadwick KC | TBJ Law |
HER HONOUR:
Introduction
1Boris Allen[1], you have pleaded guilty to an Indictment containing:
· Six charges of indecent act with a child under 16, each of which carries a maximum penalty of 10 years' imprisonment;
· Three charges of sexual assault of a child under 16, each of which carries a maximum penalty of 10 years' imprisonment; and
· Two charges of sexual activity in the presence of a child under the age of 16, each of which carry a maximum penalty of 10 years' imprisonment.
[1] A pseudonym.
2The circumstances in which you came to commit those offences are set out in the summary of prosecution opening dated 4 July 2023 (Exhibit A). The prosecution also relied on:
· Prosecution Submissions on Sentence Indication Hearing (Exhibit B);
· Victim Impact Statement of Isabelle Allen[2] dated 26 July 2023 (Exhibit C);
· Victim Impact Statement of Simon Allen[3] dated 27 July 2023 (Exhibit D);
· Victim Impact Statement of Angelica Theodore[4] dated 26 July 2023 (Exhibit E);
· Victim Impact Statement of Kiera Allen[5] dated 13 July 2023 (Exhibit F);
· Victim Impact Statement of Evelyn Allen[6] dated 13 July 2023 (Exhibit G);
· Victim Impact Statement of Leila Voit[7] dated 26 July 2023 (Exhibit H);
· Victim Impact Statement of Molly Allen[8] dated 24 July 2023 (Exhibit I);
· Victim Impact Statement of Sharon Theodore[9] dated 26 July 2023 (Exhibit J);
· And prosecution Submissions on Applicable Sentencing Provisions dated 13 November 2023 (Exhibit K).
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
[9] A pseudonym.
3In addition to the matters developed in oral argument, your counsel relied on:
· Defence Outline of Submissions on Plea dated 24 July 2023 (Exhibit 1);
· Letter From Treating GP Mark Demian dated 08 February 2023 (Exhibit 2);
· Psychological Reports of Ms Carla Lechner dated 7 December 2022 and 6 April 2021 (Exhibit 3);
· Letter from Treating Psychologist Mr Ian Woodhouse dated 7 July 2021 (Exhibit 4);
· Feedback Session Summaries and Appointment Letter from Treating OT Marina Shubova of Cognitive Decline and Memory Services dated 8 March 2023, 16 September 2020 and 26 April 2023 (Exhibit 5);
· Letter from treating GP Dr Mark Demian and email of Associate Professor Dion Stub confirming surgery 7 August dated 26 July 2023 (Exhibit 6);
· Medical report of Professor Dion Stub dated 5 September 2023; Medical Report of Dr Raphael Luber dated 17 October 2023, Report of GP Dr Mark Demian dated 27 October 2023 (Exhibit 7);
· Defence Sentencing Submissions dated 19 November 2023 (Exhibit 8);
· And medical Report from Cabrini Hospital dated10 November 2023 (Exhibit 9).
4I have had careful regard to all exhibited documents, as well as to the matters addressed in the oral plea in mitigation of penalty.
Circumstances of your offending
5At the time of your offending you were aged between 63 and 74 years. You have long been married to Sonya Allen[10], and you share three sons. Two of your sons, Ryan[11] and Michael Allen[12], are parents of complainants.
[10] A pseudonym.
[11] A pseudonym.
[12] A pseudonym.
6Your son, Ryan, has two daughters, Isabelle Allen, who is the complainant of your Charges 1-5, and Francesca Allen[13], who is the complainant in respect of Charge 8. They are your granddaughters.
[13] A pseudonym.
7Your younger son, Michael, has a daughter named Evelyn Allen, who is the complainant in respect of your Charges 9 and 10. She is also your granddaughter.
8Your wife, Sonya, has two nieces, Sharon Theodore and Angelica Theodore. Sharon Theodore has a daughter, Ella Theodore[14], who is the complainant in respect of your Charge 6. She is your grand-niece. Angelica Theodore has a daughter, Ava Gray[15], who is the complainant in respect of your Charge 7. She is also your great-niece.
[14] A pseudonym.
[15] A pseudonym.
Charges 1-5 – complainant Isabelle Allen
9Ms Isabelle Allen was born in January 2003, and was aged between five and 11 years at the time that you offended against her – she is now 20 years of age. She lived at an address in Caulfield with her father, stepmother and older brother, whilst you lived in another unit at the same address. Isabelle often attended your house to be cared for by your wife with her brother.
10In 2009, when she was aged six, Isabelle attended your home after school. On one occasion, she was in the study of your home playing games on the computer seated in a red desk chair on wheels. You came into that study to watch her play games. You wheeled another desk chair over and sat next to her. You reached over with your right hand and put your hand up the back of her shirt. You rubbed her back, torso and chest underneath her clothing. This is an uncharged act, which provides context to the following offences.
11Two to four months later, in 2009, Isabelle again attended your home. She was sitting on a desk chair playing video games in the study and you were seated next to her. She was wearing her school uniform pants and a navy school top. You touched her back and torso under her shirt and moved your hand into the front of her pants towards her genital area. You rubbed underneath her pants, over the top of her underwear. You rubbed her vagina and legs with your hand.
12Shortly afterwards, you put your hand up the back of her shirt and rubbed her back and torso again. You tried to put your hand into her pants again and she said 'No, papi, stop'. You did not say anything but stopped. Your action of rubbing her vagina over her underwear is the offending referable to your Charge 1 of indecent act with a child under 16 years.
13In 2010, when Isabelle was seven, you and your wife cared for her at her home. You put her to bed and said 'Will you give papi a kiss?' while pointing to her lips. She said 'I've never kissed anyone on the lips before', and you replied 'Here, it feels nice' and kissed her on the lips for approximately 30 seconds whilst you grabbed the back of her head really hard so that she was unable to push you away. This is an uncharged act relied upon by the prosecution for context to the charged acts.
14In 2011, when she was in Year 3, she was at your home. It was wintertime and she was wearing school pants, a shirt and a hoodie. She was playing computer games seated on one of your legs. You put your hands on her legs and moved her up and down over your crotch. This is another uncharged act relied on by the prosecution as context for the charged acts.
15In 2012, when Isabelle was in Year 4, she was at your house playing computer games in the study. You were seated next to her, to her left. It was winter and Isabelle was wearing her school uniform pants, a shirt and a hoodie. You grabbed Isabelle’s left hand and moved it up and down over your crotch, over the top of your pants. You were wearing black track pants and a red striped shirt. You rubbed Isabelle’s hand over your crotch for three to five minutes. This is the offending referable to your Charge 2, indecent act with a child under 16 years. Isabelle pulled her hand away because she had to use it for the computer game she was playing and told you, 'Papi, I need my hand for the game'.
16In 2013, when Isabelle was in Year 5, she was at your house after school. She was wearing her school uniform, which included tights and a school shirt. She was wearing a training bra under her shirt. She was in the study playing computer games when you came in and sat on the chair to the left of her. You put your hand up the back of her shirt and rubbed her back, chest and her breasts underneath her training bra, continuing for 10 minutes. This is the offending referable to your Charge 3, indecent act with a child under 16.
17On the same occasion, you then put your right hand inside her pants, underneath her underwear, and rubbed your hand over the outside of her vagina, lasting for about half an hour. She submitted to this occurring because she had said 'stop' to you on other occasions, and you always tried again later. This is the offending referable to your Charge 4, indecent act with a child under 16 years.
18In 2014, when she was in Year 6, she attended your house after school. She was playing computer games in the study and you were seated next to her. You placed your right hand into her underwear. She pulled your hand out and said 'stop'. You tried to put your hand into her pants again and she again said 'stop'. She reports that your hand got to within the waistband of her underwear before she pulled your hand out, and she told you to stop each time you tried. This is the offending referable to your Charge 5, indecent act with a child under 16 years.
Complainant – Ella Theodore
19Ella is now 13 years of age. On a date between 8 October 2016 and 7 October 2018, when Ella was aged between six and seven years old, she went to your home with her grandmother, her brother and her mother for lunch. You and she went into the computer room and she watched shows on the computer whilst seated on your lap. While you were watching the computer you squeezed and hugged her tight and kissed her hand, and then you touched her vagina over her clothing for five to 10 seconds. This is the offending referable to your Charge 6, indecent act with a child under 16.
20She said 'Papi, like why are you doing that?', and you laughed. She left the computer room and stayed away from you. She has stated that you squeezed her and kissed her hand every time she attended your house, but you did not touch her on the vagina every time.
Complainant – Ava Gray
21Ava is now 13 years of age. On a date between 24 July 2017 and 23 July 2018, when Ava was aged seven, she attended your home for lunch with her mother, her father and her brother. After she said hello to your wife, she went into the computer room with you. She sat on your lap and you told her the password to your computer. You showed her around the computer and put a YouTube video on. You stroked Ava’s leg and tried to put your hand inside her shirt through the armhole, and got half your hand inside her shirt before she stopped you by saying 'Papi, no touchy' and pushed your hand away. You responded 'But papi love touch you'. This is one of the particulars referable to your Charge 7, a course of conduct of sexual assault of a child under the age of 16.
22She left the computer room to have lunch in the kitchen before later returning to the computer room, and you sat on a chair next to her and put another video on. You stroked her arms from behind her and she said 'No touchy', and you said 'But papi like touchy' and 'yes touchy'. You tried to put your hand inside her shirt through the armhole with your fingers pointing towards her chest, but she took your hand away. Her brother entered the room and told her the family was leaving. This is the second particular referable to your Charge 7, a course of conduct of sexual assault of a child under the age of 16.
23On another occasion, Ava was in the computer room with you at your house, and you put your hand up her top from the bottom of her top near her stomach and got to the top of her stomach before she stopped you going further up her top. This is the final particular referable to your Charge 7, a course of conduct of sexual assault of a child under the age of 16.
Complainant – Francesca Allen
24Francesca is now 11 years of age. In September 2018, when Francesca was six years old, her mother and father (your son, Ryan) took a trip to Israel for approximately 10 to 14 days. During this time, Francesca and her brother stayed at your house to be cared for by you and your wife. One morning during this time, Francesca went into your bedroom and was sitting on the end of your bed playing, which woke you up. She saw you take your genitals out of your pants and squeeze your penis, and described that you then 'peed' and you said 'oops' and left the room to go to the toilet. This is the offending referable to your Charge 8, sexual activity in the presence of a child under the age of 16.
25Between July 2015 and January 2020, she describes you repeatedly sexually assaulting her without specificity. I have been told of other events, including that you tickled her vagina over her clothing, that you rubbed your penis on her vagina whilst you were both fully clothed, and that you kissed her on the lips. Each of these acts is uncharged and is relied on as context to the charged act.
Complainant – Evelyn Allen
26Evelyn is now 11 years of age. On a date between 1 January 2018 and 9 September 2020, when Evelyn was six years old and in Prep, she was staying the night at your home. You took her into your office and told her to lay down on the bed for a massage, and you put your hands underneath her top and massaged her back, before moving your hands inside her pants and under her underwear and rubbed her bottom. You then touched her vagina with your hand under her underwear and rubbed in circular motions. This is one of the particulars referable to your Charge 9, a course of conduct of sexual assault of a child under the age of 16.
27On another occasion when she was six years old and in Grade 1, she was in the office at your house getting changed. She went to leave the room but you came in and said 'Do you want to see my penis?', to which she replied 'No', but you came into the room and removed your penis from your pants and touched yourself in front of her, with Evelyn describing this action of touching as 'flicking' your penis. This is the offending referable to your Charge 10, sexual activity in the presence of a child under 16.
28On another occasion when she was six years old and in Prep, she was staying the night at your home, and you took her into your office and told her to lay down on the bed for a massage. You put your hands inside her top and massaged her back, before moving your hands inside her pants and under her underwear, rubbing her bottom. You then touched her vagina with your hand under her underwear and rubbed in circular motions. This is the second particular referable to your Charge 10, a course of conduct of sexual assault of a child under the age of 16.
Investigation, arrest and interview
29In December 2019, your son, Ryan, received a phone call from his brother, Michael, and Ryan told Michael that his daughter, Evelyn, had disclosed to his wife that you had been assaulting her inappropriately. Ryan told his wife, which prompted her to have a conversation with Francesca.
30In February 2020, Ryan and his wife initiated a conversation with Isabelle, and Isabelle disclosed that she had also been assaulted by you. Francesca disclosed your offending.
31This led other family members to rethink events and circumstances that they had observed, including Angelica Theodore recalling an occasion after March 2016, when Ava had reacted to the news that you were coming to babysit by screaming and saying she did not want you to come and babysit her. Angelica also recollected that she saw you grab Ella from behind under her armpits to give you a hug, and at that time observed you touching both of Ella’s breasts.
32In February 2020, Angelica received a from call from Ryan in which he disclosed to her that it had become known that you sexually abused the female children in the family. Angelica had a conversation with Ava which led to disclosures.
33Sharon initiated a conversation with Ella, and Ella then made disclosures.
34Meanwhile, Kiera recalled that in December 2019, she was discussing holiday plans with Evelyn and, as a result, Evelyn became upset and began crying and stated 'Papi will touch my bum'. This then led Kiera to tell Michael about Evelyn’s disclosure and, in turn, they told Ryan and their wives.
35In October 2022, Kiera had a further conversation with Evelyn and she made further disclosures.
36The matters were first reported to police in 2020.
37On 24 February 2021, you were arrested at your home and were interviewed by police.
38In response to Isabelle’s allegations, you accepted that you played computer games with her and sometimes that you sat next to her, but denied the allegations.
39In relation to Francesca, you stated that she was your favourite granddaughter, and you told police 'I would cuddle and kiss her as many times as I could'. You denied any sexual offending.
40You told police that Ava was a compulsive liar and that you did not do anything sexual to her.
41In relation to Ella, you denied offending against her and you told police 'I wasn't doing anything that bad, I hope'.
Plea of guilty and timing
42You were charged following your arrest and the matter proceeded through the committal stream of the Magistrates' Court. You were committed for trial on a plea of not guilty to all charges in October 2022, without any witnesses experiencing the inconvenience and often stress of having to give evidence.
43Whilst the case was under management in this court, prior to the court having set the matter down for trial, you sought an indication as to the sentence that I would be likely to impose were you to plead guilty to the preceding offences. That indication was acceptable to you, and you were arraigned and pleaded guilty to these charges shortly thereafter.
44This is a plea of guilty that occurred at a mid-point in proceedings, but prior to the court listing, let alone accommodating, your trial on these charges. As a result of your pleas, you have saved the court, the witnesses and the community the time and expense of a trial on this indictment. The pleas are of significance in their own right, but at the time that they were entered they were also of special significance, where the effects of the COVID-19 pandemic continued to linger upon the listing of trials.
45I consider the pleas to have significant utilitarian benefit and have taken that into account in mitigation of sentence.
Effect on the victims
46I have a number of Victim Impact Statements from the direct victims of your offending and a number of Victim Impact Statements from the secondary victims of your offending. Each victim speaks eloquently and in a most moving way of the effects of your abuse of your granddaughters and grand-nieces, and that this effect is not just experienced by their anguish and trauma, but also through the trauma of those who care for your primary victims, who have lost faith and trust in the protective nature of your family structure as a result of your extensive and prolific offending.
47Isabelle told me that her life has been forever changed since the first time you sexually assaulted her. From a young age she felt sad all the time, and experienced feelings of depression. From a young age she was concerned that if she disclosed your abuse of her there would be 'disastrous consequences'. As a young person she felt that she needed to distract you to prevent you from touching her, and she would have to engage you in constant conversation to divert your attention away from your sinister intentions. Understandably, this left her mentally exhausted.
48Your abuse has left her scarred and, understandably, she has since received a mental health diagnosis. You have interfered with her capacity to experience loving and intimate relations as a young adult.
49Since disclosing your abuse to police, she has needed to defer her university studies to prioritise her mental wellbeing. You have also interfered with her capacity to work. Your abuse has created conflict within the family. She experiences recurring nightmares and foreshadows that her battle with depression will persist throughout her life.
50Her brother has told me that your offending has irreversibly damaged your once tightknit and loving bonds. The shock of disclosure has torn the family apart, leaving that generation feeling estranged and disconnected. As the eldest child in the family, he feels that he held the responsibility of safeguarding his loved ones, and he feels an overwhelming sense of guilt that he was unable to protect his sisters and little cousins from the evil. He questions whether there was more he could have done to prevent the tragedy.
51Evelyn told me that after you abused her, she was not able to go to sleepovers because she was scared and frightened that it would happen again. Fortunately, she is now able to enjoy these activities because she has built up her confidence and is more aware of the situation. She told me that you mentally hurt her because she knew it did not happen to other kids and it was really different to everything in her life. You have left her with trust issues because she now does not trust people, because when she went to your house she would trust you to actually be good and you failed.
52When she walks home from school and sees old men, understandably, she gets scared and tries to move away from them without them noticing. She still cries a lot about what has happened, and feels uncomfortable talking about it.
53Ava’s mother, your niece, Angelica, told me that Ava will not go to friends' houses where there are men in the home, and she has been medically treated many times for panic attacks. Angelica has told me she feels that her trust has been betrayed as a result of your offending, but she also feels a profound sense of loss that she is no longer supported by your wife.
54Ella’s mother, Sharon, has told me that your offending has caused her to be completely devastated and emotionally distraught, that she felt betrayed, violated, like someone had just ripped her heart out. She had believed that the relationship that she had with you and your family was one that she trusted, and your crimes have been the epitome of betrayal.
55She has told me that Ella has experienced distress and anger since you offended against her, and further that you have caused Sharon headaches, sleepless nights and anxiety.
56Isabelle’s mother, Leila, has told me of her emotional pain, her anger, her anxiety and fear for her daughters. She has also observed her precious child experienced long-term consequences as a result of your abuse.
57Evelyn’s mother, Kiera, has told me that Evelyn’s disclosure of your abuse of her has caused conflict within her relationship with Michael, which was a very lonely and isolating time for each of them. She hates seeing her daughter with the weight of the world on her shoulders, and has told me that Evelyn feels responsible for everything that has happened because she was the first person to speak up.
58Ava’s mother, Angelica, has told me that you have driven a massive wedge between your wife and her children, grandchildren and the extended family. Angelica is furious at herself for not appreciating what you were doing at the time that it was happening.
59Like the other authors, she tells me that the stress of the whole situation has been hard for them. She has become very protective of her children, and has told me that Ava has been treated many times for panic attacks, and has to live with uncomfortable symptoms of anxiety and panic.
60Francesca’s mother, and Isabelle’s stepmother, Molly, has told me of the trauma that she has experienced as a result of your sexual abuse of the children. She also tells me that the revelations of your abuse of the children have torn the family apart. She tells me that Francesca has experienced a significant loss of trust in men and people in general, and now has a diagnosis of Post-Traumatic Stress Disorder caused by your sexual abuse, and experiences OCD with compulsive tendencies.
61She has also told me of Simon’s overwhelming sense of suffering and self-blame for not protecting his sisters.
Personal circumstances
62You are currently 78 years of age and, as I have mentioned, you were aged between 63 and 74 at the time of your offending.
63You were born in Santiago, Chile, the second eldest of eight siblings. Unfortunately, your father died when you were aged nine, your older sister died from Leukemia when you were aged 13, and your mother died when you were 19.
64You finished secondary schooling in Chile when you were aged 15 and then ran a small plastering factory within a family business, your involvement starting at the young age of 13, and you worked there until the age of 25. You also acted as a volunteer fire fighter in Chile for five years.
65In November 1970, when aged 25, you migrated to Melbourne, Australia on an alien visa and, in September 1976, you gained your Australian citizenship. You observe the Jewish faith.
66In December 1969, you married your current wife and you have maintained a loving and stable relationship for in excess of 53 years.
67There are three adult sons to the relationship, who are now aged 50, 44 and 42. As I have mentioned, two of your sons are parents of complainants.
68You and your wife share nine grandchildren, including four of the complainants.
69Upon your arrival in Australia, you worked for John Danks (now Mitre 10) in a warehouse, and then in 1973 you purchased and worked in a milk bar in Chapel Street, St Kilda. This business continued until 1976.
70In or around 1974, you and your wife purchased and worked within a franchise licensed grocery store in Carnegie, and then in 1983 you purchased and worked in a further franchise business known as 'Cookie Man'.
71In 1989, you qualified as a registered building practitioner and then worked in this capacity, building units and properties in the Carnegie and Caulfield areas. I understand that you developed a substantial practice as an employer.
72Between 1991 and 2005, you and your wife opened a childcare business, and I understand that your wife ran and maintained the childcare facility with you as owner.
73You retired in 2011, and in the chronology of offending, this is after your commission of the first offence, but prior to your commission of the rest.
74You have no prior criminal history, and prior to the commission of your first offence, you were a person of very good character, which I take into account in mitigation of sentence.
75I understand that you have a complex medical history and I have the benefit of a detailed summary of your afflictions, as provided by your learned senior counsel, supplemented by medical reports.
76I was told that you suffer from an array of medical issues and conditions, including:
· a mild cognitive impairment, to which I will return;
· ischaemic heart disease;
· stent in coronary artery;
· your aortic valve was recently replaced;
· trochanteric bursitis;
· gout;
· carotid endarterectomy (bilateral);
· cerebrovascular accident;
· obstructive sleep apnoea;
· morbid obesity;
· diabetes mellitus (Type 2);
· anaemia;
· and you are recovering from a recent colposcopy at which time some polyps were removed, and a rectal prolapse was noted.
77In or around June or July 2010, you suffered a transient ischaemic attack, which I am told is a stroke-like attack, while travelling to Chile, and you were treated at the military hospital in Santiago.
78There were also concerns relating to your cognitive deterioration, and you have a previous diagnosis of a mild cognitive impairment.
79Ms Carla Lechner, clinical psychologist, undertook a psychological assessment and has provided me with two reports.
80In April 2021, Ms Lechner expressed the view that you were reporting symptoms of a 'moderate' level of psychological distress and depression and fulfilled the criteria of a diagnosis of major depressive disorder pursuant to DSM-V. In December 2022, Ms Lechner again expressed the view that you were reporting symptoms of 'a moderate' level of psychological distress and 'mild' levels of depression, and at that time you continued to meet the criteria for a major depressive disorder.
81You have received psychological counselling to assist with your anxiety and depression in 2021 and continuing in 2022.
82In short, you suffer from a wide range of ailments, relating to your mental health and physical health, including but not limited to your obesity, your diabetes, your low iron and your difficulties with your heart and bowel, and I am prepared to infer and take into account in mitigation that these complications of health substantially moderate your life expectancy as well as quality of life. I have accepted your counsel's submission that Verdins factors 5 and 6 are operative, and I take those factors into account in mitigation of sentence. In my view, there is insufficient evidentiary basis for a conclusion that your cognitive and mental health activate other Verdins factors.
83I indicate here that I have allowed for mitigation of sentence on the basis of physical and mental conditions, your concerns about the suitability of treatment whilst in custody, which weigh upon your mind, and your advanced age and compromised health.
Objective gravity of your offending, moral culpability
84In relation to your offending against your granddaughter, Isabelle, you engaged in a spree of offending comprising charged and uncharged acts (the latter which I take into account to contextualise the charged acts and demonstrate that those acts did not occur in isolation) that spanned a period exceeding four years.
85Your offending against her started when she was aged only six years. You took advantage of her isolation in your company, and you touched her in a most intimate way. She remonstrated with you, and told you 'no' and 'stop', and this was not successful in quelling your need to abuse her.
86In the ensuing years, your behaviour escalated and you required her to masturbate you for an extended period, you touched her breasts under her training bra, and you touched her for an extended period on the vagina underneath her underwear.
87On another occasion, she told you to stop and again this was unsuccessful in persuading you not to abuse her on that occasion.
88Some years later, you started offending against Ella Theodore and Ava Gray, your great-nieces. Each was aged six to seven years, that is a similar age to the point at which your sexual attraction to Isabelle had also manifested. You touched Ella in an intimate way, on her vagina over her clothing for five to 10 seconds whilst she was also in the same circumstance of isolation in the computer room, as Isabelle had been.
89By the time you abused Ava in that same room, your modus operandi was well established. You engaged in a course of conduct of sexual assault against her. She also asked you not to touch her, and you replied in as many words that it was going to happen.
90The following year, or thereabouts, in 2018, your granddaughter, Francesca, turned six years old, that is the age at which you had commenced sexually abusing her relatives, and you exposed yourself to her and squeezed your penis. This abuse of Francesca did not occur in isolation and I note that other uncharged acts occurred in the same period.
91You then offended against your fifth complainant, Evelyn, also aged six, again taking her into your office and touching her on the vagina under her underwear twice, and you removed your penis from your pants and touched yourself in front of her.
92Your offending was extensive and prolific, and it was motivated by your need for sexual gratification at the expense of the vulnerability of your very young family members, on occasion over their protest. On each occasion, it occurred in an environment where each was entitled to feel absolutely safe.
93Your offending occurred over this protracted period and involved a serious breach of trust.
94I accept and take into account that some aggravating features that may be observed in other similar cases are absent in this case, such as the fact that there were no threats of violence or infliction of acts of violence, and no inducements made to the victims.
95Nonetheless, your offending is inherently serious and has caused not only your primary victims terror and enduring trauma but has devastated other members of your extended and previously closeknit family.
Purposes of sentencing, sentencing submissions and relevant sentencing principles
96In cases of this nature, the need for general deterrence is high. In other words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I must give significant emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and punish you for your offending.
97I also consider that a decent measure of specific deterrence is needed in your case, having regard to the prolific nature of your offending.
98In rather compressed reasoning, Ms Lechner assessed you using the STATIC-99 and the risk of sexual violence protocol in April 2021 and December 2022. At the time even of the more recent assessment, you were pleading not guilty, but she undertook the risk assessment on the basis that you were to plead guilty or were found guilty at trial. She concluded that you were in a low risk category relative to other male sex offenders.
99In relation to the risk of sexual violence protocol, she noted that you would fulfil the criteria of a diagnosis of paedophilic disorder, which is a reasonable conclusion, but to her you did not appear to have a generalised preferential sexual interest in children per se.
100I am concerned as to your risk of re-offending given the number of your victims and an established and entrenched modus operandi involving a clear and overt sexual attraction to young female victims manifesting in sexual offending when they are approximately six years of age.
101There are protective factors in your case which have been emphasised in your counsel’s thorough plea in mitigation, including your lack of prior criminal history, the support of your wife, and the situational factors which will mean that it is unlikely that you will have opportunity for unsupervised access to young children. I have allowed a generous period of parole eligibility as was urged upon me by your counsel, having regard in particular to your personal circumstances including vulnerable health, and to continue to allow for supervised rehabilitation.
102I must also have regard to the fact that you will enjoy rehabilitative programs whilst in custody. On balance, I am prepared to infer that your prospects for rehabilitation are fair to good, particularly having regard to what I hope and infer will be your limited opportunity for re-offending.
103Your Charge 10, of sexual activity in the presence of a child under 16, is a standard sentence offence, and the standard sentence for this offence is four years’ imprisonment.
104The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. In sentencing for a standard sentence offence I must take the standard sentence into account as one of the factors relevant to sentencing, as effectively a legislative guidepost, having the same function as the maximum penalty. I do not consider the standard sentence as a starting point, the standard sentence does not affect the established instinctive synthesis approach to sentencing nor does it require or permit two-stage sentencing, and it does not otherwise affect the matters which I must take into account in sentencing.
105I can only pay regard to sentences previously imposed where this offence was the subject of a standard sentencing scheme, when I come to have regard to current sentencing standards in relation to that offence. Here, I note that I am of course familiar with sentencing standards in relation to each of the offences, including this limitation in respect of that charge.
106After careful reflection, I will indicate that whilst I agree with the prosecution contention as to the characterisation of the seriousness of this example of that offence, the sentence that I will impose in respect of Charge 10 is less than the standard sentence.
107I am indebted to each counsel for drawing my attention to relevant and comparable cases, and have read each of those decisions to note the methodology and outcome of the court in those cases (including to the limitations in factual comparison).
108I have had regard to the application of s 11A of the Sentencing Act 1991, relating to the calculation of a minimum period of parole eligibility in respect of Charge 10.
109I note that each of the charges on your indictment is a relevant sexual offence and you fall to be sentenced as a serious sexual offender once convicted and sentenced to imprisonment on two charges, which I will take to be the first two in time, that is Charges 1 and 2.
110As I intend to convict you and impose sentences of imprisonment upon you on each of these charges, you fall to be sentenced as a serious sexual offender on remaining charges, and I will make that declaration in my order on your sentences of imprisonment on each of Charges 3 to 10.
111I therefore regard protection of the community from you as the principal purpose of imposing sentence on each of those charges, but I do not intend to impose disproportionate sentences. This characterisation of your offending also removes the presumption of concurrency in respect of sentencing for those offences, to which I have regard.
112As I have mentioned, your pleas of guilty were entered at a time when the court system in Victoria was still experiencing significant impediments as a result of the unfortunate effects of the COVID-19 pandemic. There was a significant utilitarian benefit in you entering pleas of guilty to the preceding charges. Here I cite Worboyes v R [2020] VSCA 169.
113Prosecution counsel has submitted that the only appropriate sentence in all of the circumstances of this case is an immediate custodial sentence involving a head sentence with a minimum period before parole eligibility.
114Your senior counsel firmly pressed that a combination sentence was available in the circumstances of this case, and urged me to note the versatility of such a disposition which could be tailored to the circumstances of your case and the purposes and principles of sentencing that I have summarised.
115I have reflected very carefully on these competing submissions, and the sentencing principle of parsimony. Ultimately, I consider that the only appropriate sentence is one involving a head sentence with a minimum term.
116I have had careful regard to the totality principle of sentencing, and have structured my orders for concurrency and cumulation to avoid a crushing sentence.
117By reason of your convictions for three or more Class 2 offences, pursuant to the Sex Offenders Registration Act 2004, you are a mandatory registrable offender, and the applicable period of compliance with the obligations under that Act is life.
Sentence
118I now pass the following sentences:
· On Charge 1, of indecent act with a child under 16, you are sentenced to 18 months’ imprisonment, to be served concurrently with other sentences;
· On Charge 2, of indecent act with a child under 16, you are sentenced to 21 months’ imprisonment, three months of which is to be served cumulatively upon the base and upon other sentences;
· On Charge 3, of indecent act with a child under 16, you are sentenced to 21 months’ imprisonment, to be served concurrently with other sentences;
· On Charge 4, of indecent act with a child under 16, you are sentenced to two years' imprisonment. This is the base;
· On Charge 5, of indecent act with a child under 16, you are sentenced to 21 months’ imprisonment, three months of which is to be served cumulatively upon the base and upon other sentences;
· On Charge 6, of indecent act with a child under 16, you are sentenced to 21 months’ imprisonment, three months of which is to be served cumulatively upon the base and upon other sentences;
· On Charge 7, of indecent act with a child under 16, you are sentenced to 18 months’ imprisonment, three months of which is to be served cumulatively upon the base and upon other sentences;
· On Charge 8, of sexual activity in the presence of a child under 16, you are sentenced to 21 months’ imprisonment, three months of which is to be served cumulatively upon the base and upon other sentences;
· On Charge 9, of indecent act with a child under 16, you are sentenced to two years’ imprisonment, six months of which is to be served cumulatively upon the base and upon other sentences; and
· On Charge 10, of sexual activity in the presence of a child under 16, you are sentenced to 21 months’ imprisonment, three months of which is to be served cumulatively upon the base and upon other sentences;
119This is a total effective sentence of four years’ imprisonment, and I order that you serve two years and nine months before parole eligibility. I will reckon 21 days' imprisonment reckoned as served.
120Were it not for your pleas of guilty in this case, had you pleaded not guilty to all charges but been found guilty following trial, I would have imposed a total effective sentence of five years and three months with parole eligibility.
121HER HONOUR: Thank you. Let's adjourn sine die.
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