Director of Public Prosecutions v Argyle (a pseudonym)
[2021] VCC 555
•12 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| DOUGLAS ARGYLE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D A SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 April 2021 | |
DATE OF SENTENCE: | 12 May 2021 | |
CASE MAY BE CITED AS: | DPP v Argyle (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 555 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – two charges of incest
Legislation Cited: Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s44(2); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004
Cases Cited:DPP v Walsh (a pseudonym) [2018] VSCA 172 Director of Public Prosecutions v Shearer (a pseudonym) [2019] VSCA 47; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2016] VSCA 148; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; Director of Public Prosecutions v Tewksbury (a pseudonym) [2018] A Crim R 205; Grantley (a pseudonym) v The Queen [2018] 272 A Crim R 340; R v Verdins & Ors (2007) 16 VR 269; Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170; Reid (a pseudonym) v The Queen [2014] 42 VR 295; Director of Public Prosecutions v Hardin
(a pseudonym) [2018] VCC 1834; Director of Public Prosecutions (Vic) v Wilson (a pseudonym) [2018] VSCA 263Sentence: Total effective sentence of ____’ imprisonment. Section 6AAA declaration: _____
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Saville (Plea) Ms I. Barry (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Taaffe | Doogue + George Pty Ltd |
HIS HONOUR:
Introduction
1Douglas Argyle[1], you have pleaded guilty to two charges of incest, an offence which carries a maximum penalty of 25 years' imprisonment.
[1] A pseudonym.
Circumstances of your Offending
2The circumstances of your offending were set out in the Summary of Prosecution Opening for plea dated 19 April 2021, Exhibit 1 at your plea hearing on 28 April 2021.
3By way of brief summary, at the time of your offending you were 38 years old and in a de facto relationship with your victim's mother, Margaret Milne[2]. She is now deceased. Your victim, Rachel Milne[3], was 17 years old at the time of your offending. She began living with her mother and you when she was 16 years of age, following a significant period of years where she had no contact with her mother. She lived with her mother and you at your home. Both you and Ms Milne’s mother were heavy drinkers at the time. On Friday nights the two of you would get drunk together, with Ms Milne’s mother usually going to bed first, and you following later in the night.
[2] A pseudonym.
[3] A pseudonym.
4Charge 1 on the indictment, incest, relates to offending which took place on the Friday evening of 1 May 2015. Ms Milne had turned 17 in November of the previous year. At about 10.00 pm or 11.00 pm that night, Ms Milne’s mother went to her room, and Ms Milne was in the lounge room. She was playing a computer game. You walked into the lounge room, knelt next to her, and Ms Milne showed you the game she was playing. At this time, you had your hand on Ms Milne’s right thigh, and then moved your hand onto her groin over her clothing and began rubbing her groin. You then moved your hand into the shorts of Ms Milne and started to rub her groin again. You then pulled her shorts down to her ankles, moved her towards the front of her chair, and knelt in front of her. You then leant into Ms Milne’s and began to lick her clitoris and vagina, inserting your tongue into her vagina. Ms Milne tried to push you away, and you stopped and asked her if she "Came". She replied "No", and got up, pulled her pants up, and went to her room.
5Charge 2 on the indictment, incest, relates to offending which took place on the following Friday evening, 8 May 2015. You and Ms Milne’s mother were drinking at home. Ms Milne had gone to bed at approximately 9.00 pm or 10.00 pm in her room with her door closed. She was woken by her door opening and you entering the room. You removed the doona, which was over Ms Milne, who was then lying on her stomach. You pulled her shorts down to her knees and leant into her and began to lick the clitoris and vagina of Ms Milne, inserting your tongue into her vagina. Ms Milne pretended to be asleep and did not say anything. You eventually stopped and left the room.
6After this second incident, Ms Milne reported the incidents to her mother, who confronted you. You admitted the incidents. Afterwards, Ms Milne apparently went to live with her maternal grandparents.
7Five years later, on 9 May 2020, Ms Milne having reported this matter to the police in the previous year, you attended a Police Station where you were interviewed in relation to these allegations. You admitted the first incident on 1 May 2015, but denied the incident which occurred on 8 May 2015, telling police that you only remembered the earlier incident.
Impact on your Victim
8Your victim, Ms Milne, completed a Victim Impact Statement on 19 April 2021 (Exhibit 2). That statement, which was tendered by the Prosecution, was read out at your plea hearing. In that statement, Ms Milne refers to feeling traumatised and voiceless as a result of your offending. She refers to having had regular panic attacks following the incidents. As a result of your offending, she has had vivid nightmares, depressive thoughts, and anxiety. Her work has been affected. She has struggled to interact with other people, and her general relationships have been adversely impacted. Her understanding of a healthy physical relationship has been distorted. Clearly, your offending has had a significant adverse impact upon your victim.
9Victim impact statements are an important means through which victims of crime can meaningfully participate in the sentencing process. In formulating an appropriate sentence in your case, I have taken into consideration, as one of the applicable sentencing factors, the impact of your offending on your victim.
Offence Gravity and Your level of Responsibility/Culpability
10Incest is an appalling crime. It is by definition, an offence of very high culpability, 'Since it is so obviously contrary to every tenet of parental care for children, and since every parent (or parental figure, as is the case here) is taken to understand that sexual activity is absolutely prohibited'[4]. It is inherently a crime of violence. As a category of offending it represents egregious conduct, and any sentence imposed must reflect this. It is clear, however, that this crime, like all offences, can carry with it differing levels of seriousness. As has been stated in previous authorities,[5] in assessing the relative seriousness of an offence of incest, it is necessary to consider the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurs, the culpability of the offender and the impact on any victim.
[4] DPP v Walsh (a pseudonym) [2018] VSCA 172 at [33]
[5]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2016] VSCA 148; Director of Public Prosecutions v Tewksbury (a pseudonym) [2018] A Crim R 205 and11Here, on two separate occasions separated by a week, you put your tongue inside the vagina of the 17 and a half year old daughter of your then de facto partner. The upper age limit for this offence is "Under the age of 18" and I accept therefore that the age of your victim was towards the upper end of the age range in which the offence could be committed. Your victim, Ms Milne, had only lived with you and her mother for approximately one year from the age of 16. I accept that the degree of influence which you likely had over Ms Milne, and the depth of personal involvement between the two of you was likely more limited than it might be in other cases where an offender exercises more parental control and role modelling over a sustained period of time. Nevertheless, you were in a relationship of loco parentis with your victim. You knew this – in your police interview, you said you considered her "Just like a daughter" (Answer 139). I do not agree with your Counsel's written submission[6] (paragraph 54) that you did not consider yourself at the time to be a father figure to Ms Milne – the interview answer relied upon by your Counsel in this regard, Answer 367, relates to whether you thought Ms Milne regarded you as a father figure, not to your own perception, which, in my view, is clear from your earlier answer that you regarded her like a daughter. She was the teenage daughter of your partner, a child in the eyes of the law. Your offending represents a fundamental breach of that relationship, and, accordingly, represents a breach of trust, a significant factor in assessing the objective gravity of your offending, and your level of culpability for it.
[6] Joshua Taaffe, Defence Outline of Plea Submissions (22 April 2021) paragraph 54
12Your offending took place over a period of approximately one week and in comparison to many other incest cases was therefore of a relatively short duration. However, you offended twice within that period, and as conceded by your Counsel, your conduct in repeating your behaviour on the second occasion accentuates the gravity of your offending overall. Both instances took place in the home in which your young victim was living, a place where she was entitled to feel safe. In particular, on the second occasion, your offending occurred in her bedroom, on her bed, a location of particular vulnerability, which further accentuates the gravity of your offending.
13I accept that there is an absence in your case of any grooming behaviour, any force or coercion or additional violence or degradation which is sometimes associated with this offending. Likewise, there is an absence in this case of any behaviour on your part following your offending which would otherwise aggravate your conduct. There is an absence in this case of any efforts of concealment or cover-up, or any entreaties on your part to facilitate silence on the part of your victim.
14Your counsel Mr Taaffe, in a powerful and eloquent plea, submitted that your offending should be categorised as being at the lower end of seriousness of what is an inherently serious crime, elevated above the lowest end of the range only by virtue of the repetition of the offending. In contrast, the Prosecution submitted that due to the overall circumstances of the offending, particularly the repetitious nature of it, that your offending was not in the lower range, and was best categorised as mid-range. In my view, an analysis of the objective indicia of your offending is more helpful than simply labelling it. However, whilst your conduct is certainly not indicative of the lowest level of the crime of incest, for the reasons I have outlined, in my view, it sits somewhat below a mid-range example of the crime of incest.
15Turning now to an assessment of your moral culpability for this serious offending, I accept that there is no evidence before me that your offending was borne of any concerning sexual psychopathology or sexual deviance. I accept that your offending, albeit repeated, was essentially opportunistic and impulsive. Psychologist, Dr Charlotte Ho, in her report dated 17 October 2020 (Exhibit B)[7], opined that your offending occurred in the context of a relationship with your victim's mother that was plagued with mutual alcohol abuse, rejection, and a lack of emotional and sexual intimacy. Your ability to recognise and identify your emotions was poor, your ability to recognise high risk situations was also impeded, and further compromised by your cognitive functioning deficits, the details of which I will shortly outline. Dr Ho referred to limited coping and problem solving skills, limited interpersonal skills, and problematic decision-making with consequential thinking, combined with emotional and behavioural dysregulation which collectively formed the context of your offending against your victim.[8]
[7]Dr Charlotte Ho, Psychological Report (17 October 2020)
[8]Ibid p.9
16Your Counsel submitted that your answers to police in your interview indicated that at the time of your offending, you did not appreciate that your acts involving
Ms Milne were unlawful or would be harmful to her. Accordingly, it was submitted that your moral culpability was lower than that of someone who appreciated the criminality of their actions and proceeded with their actions. However, as I have already stated, earlier in your police interview, you acknowledged that you had considered Ms Milne to be 'Just like a daughter' (answer 139). Furthermore, there is nothing in the report of Dr Ho that supports the assertions that at the time, you did not appreciate that your actions were unlawful, as you stated to police in answers 306-319 of your police interview. In my view, based on your own admissions to police, at the time of your offending you regarded Ms Milne as like a daughter. Whilst I accept that your psychological fragilities, and cognitive limitations as identified by Dr Ho may well have clouded your level of insight and understanding regarding the impacts of your behaviour, your awareness of the parental nature of your relationship with Ms Milne means that your moral culpability remains significant.17Your counsel did not rely upon any reduction in your moral culpability due to the well-known Verdins’[9] mental impairment principles. Whilst the matters referred to by Dr Ho provide a context for your offending, in my view, your moral culpability for your offending remains high.
[9]R v Verdins & Ors (2007) 16 VR 269
Personal Circumstances
18You are now 44 years of age. Despite a childhood rife with abuse and trauma, you do not have any prior convictions, and your good character in this regard very much stands to your credit.
19You were born in Campbellfield in Victoria. Both of your parents apparently had substance abuse issues. Your father, now deceased, was a fitter and turner who suffered from alcoholism. Your mother, whose whereabouts are currently unknown to you, has apparently suffered with a thyroid condition, prescription medication addiction, and possibly alcoholism as well. You have one older brother with whom you do not have any contact.
20You have it seems had compromised physical health from a young age. As an infant, your mother apparently resorted on occasion to bottle feeding you with alcohol – she would put rum into your baby bottle when you cried. As an infant, you were hospitalised following being dropped on your head by your father. You had bowed legs for which you wore leg braces prior to commencing primary school and suffered from juvenile arthritis, for which you were hospitalised on multiple occasions when young.
21Your father was apparently both physically and verbally abusive towards your mother and left when you were six years old. You subsequently had minimal contact with your father until you were in your 30's and, unsurprisingly, you have felt abandoned and confused due to your father's relative absence in your life. He died in 2018.
22Growing up, your mother re-partnered, and you apparently felt close to her partner, Robert[10], until he died when you were in your early teens, a significant and traumatic event for you. You have apparently experienced unstable accommodation during your childhood. You lived in Victoria until the age of five before your family moved to Western Australia, shortly prior to your father leaving the family, leaving you, your brother and mother in government housing.
[10] A pseudonym.
23You have described a problematic relationship with your mother, who was apparently verbally psychologically and physically abusive towards you throughout your childhood.
24Your mother apparently blamed you as a child for her many medical problems, and when you displeased her, she would beat you with a wooden spoon until it broke, or a belt, or she would recruit a male neighbour to beat you. She forbade you from spending time with friends or from participating in sporting and recreational activities. She provided you with pornographic magazines to learn about sex. She expected you to tend to her personal needs, including personal grooming and massage, and if you resisted these requests you feared being beaten. You were ultimately expelled from your mother's house at the age of 15 upon you refusing to wash your mother's bare back in the shower, resulting in you sleeping at a local football field for several nights before being taken in by another family.
25You started smoking cigarettes from the young age of eight or nine. You started drinking alcohol at the age of 10 and, by the age of 18, you were regularly smoking cannabis.
26You struggled considerably with literacy in school but, unfortunately, were not tested for any learning disabilities or cognitive impairments as a child. Always having performed poorly in reading and writing, you had difficulty making friends and attempted to avoid the notice of other students and teachers. In Year 10 you began missing classes and, ultimately, you left school in Year 11.
27It is to your credit that, notwithstanding your personal difficulties and problems with your education, after leaving school you have maintained a largely consistent employment pattern throughout your life. You initially worked at McDonald's for some two years before working as a painter, a factory worker in the frozen food industry, and a fly-in/fly-out mining labourer. It seems that the only gap in employment occurred following a back injury and you being unable to work for two years.
28You have completed various vocational certificates – in basic rigging, as a track inspector, a safe working coordinator, and as a backhoe excavator and bobcat driver.
29In 2014, you commenced working with V/Line. You worked as a rail maintenance labourer until 2018, before being promoted to assistant ganger (foreman).
30Including your current relationship, you have participated in three longstanding and significant intimate relationships. Your first relationship lasted for some 13 or 14 years, during which time you were married. That relationship ended when you were 31 or 32 years of age.
31Your second relationship was with the mother of your victim, which commenced when you were 33. This relationship was fraught and marked by alcoholism. You were together for some 10 years before Ms Milne passed away from cirrhosis of the liver. Ms Milne was apparently the dominant personality in the relationship. Whilst in the early years you were getting along well and your sexual needs were being met, the relationship deteriorated significantly over time to the extent that there was, in your words, "No sex, no love". This caused you to feel a considerable degree of rejection, feeling that you were failing in the relationship. This, it seems, further exacerbated your impaired feelings of self-worth, which had dogged you since your youth. You apparently cared for Ms Milne in the late stages of her illness and hospitalisation and made arrangements for her funeral.
32Your third relationship is with your current partner, Debra Farley[11]. You met Ms Farley at the local gym some months after Ms Milne’s passing, and it is apparent that your relationship with Ms Farley is a loving, positive, and supportive one for you. Ms Farley, who has previously worked as a veterinarian nurse for some 15 years but is now on the Disability Support Pension for various issues, gave evidence at your plea hearing. Ms Farley impressed me considerably as an intelligent, thoughtful, and compassionate person. Ms Farley is fully aware of the nature of your offending, together with your personal history, and clearly, in my view, nevertheless holds you in very high regard. In the words of Ms Farley, you have changed her life and assisted her in many practical ways to function fully in the community.
[11] A pseudonym.
33Likewise, it seems that Ms Farley has been of great assistance to you in terms of exploring your previously undiagnosed issues. She has assisted you in obtaining appropriate specialist interventions and treatments and, according to Ms Farley, you have become more positive and emotionally expressive since these interventions.
34In April this year, the two of you moved into the property of Ms Farley’s parents and you have been working on renovations to the property to enable Ms Farley to comfortably reside there during your period of imprisonment.
35While your counsel did not submit that the hardship to Ms Farley constituted exceptional circumstances from the perspective of the relevant sentencing principles, I accept that your incarceration will adversely impact Ms Farley. I also accept that your relationship with Ms Farley has had considerable positive impact upon you, and the sentence of imprisonment will no doubt constitute a significant challenge to that relationship. This will, in my view, accentuate your anxiety resulting from the sentence of imprisonment.
36Notwithstanding your personal difficulties over many years, until 2019 it seems that you have not previously availed yourself of any mental health supports, turning instead, it seems, to substance abuse. In 2019, in the context of the development of your relationship with Ms Farley, you developed a positive therapeutic relationship with your general practitioner, Dr Joe Spencer. In early 2020, Dr Spencer referred you to your current treating clinical psychologist, Dr Tania de Jong. I have read and considered the report[12] from Dr de Jong dated 23 April 2021, Exhibit E at your plea hearing.
[12] Dr Tania de Jong, Confidential Psychological Report (23 April 2021)
37
In that report, Dr de Jong refers to you having seen her for 26 sessions since
19 March 2020, presenting initially for assessment and treatment of acute suicidal ideation, mixed anxiety, and depression in the context of the death of your former partner, and the earlier death of your father in 2018. Dr de Jong diagnosed you with complex trauma/post-traumatic stress disorder, suspected expressive language disorder, suspected neurobiological condition, severe dyslexia, mixed anxiety and depression, and possible prior traumatic brain injury.
38Dr de Jong has utilised various psychological tools in relation to treatment, in addition to antidepressant medication. According to Dr de Jong, your response to treatment has been excellent and your prognosis is considered very good to excellent.
39
I have also read and considered the report[13] from November 2020 from
Spark Speech Pathology, Exhibit D at your plea hearing, which refers to a comprehensive speech pathology assessment, and also refers to your previous diagnoses of severe dyslexia and dysgraphia in 2020, complex post-traumatic stress disorder in 2020, and depression from December 2019.
[13] Spark Speech Pathology report (November 2020)
40
A report[14] from neuropsychologist, Associate Professor Warrick Brewer, dated
31 March 2021 was also tendered at your plea hearing, Exhibit C. I have read and considered the contents of that detailed neuropsychological assessment. Professor Brewer assessed you personally on 3 March 2021 and considered the various reports and documents to which I have referred.
[14] Warrick Brewer, Confidential Neuropsychological Report (31 March 2021)
41According to Professor Brewer, there are numerous markers or indicators supporting the existence of a mild acquired brain injury, including early alcohol use during infancy, being dropped on your head, functional learning problems and significant emotional distress from infancy. Professor Brewer recommends further investigations, including an MRI scan.
42Professor Brewer also refers to diagnoses of Language Disorder, Post-Traumatic Stress Disorder, alcohol dependence currently in remission, and Generalised Anxiety Disorder, and Major Depressive Disorder. He makes a number of recommendations with regard to future treatment
43Finally, as I have earlier mentioned, a comprehensive and helpful forensic psychological report was tendered from Dr Charlotte Ho dated 17 October 2020, Exhibit B at your plea hearing. Dr Ho referred to your cognitive functioning difficulties in the areas of attention, language, and in grasping abstract ideas.[15]
[15]Dr Charlotte Ho, Psychological Report (17 October 2020) p.2
44As I have earlier mentioned, having considered the relevant aspects of your personal history and aspects of your functioning, Dr Ho expressed her opinions in relation to the underlying triggers to your offending.[16] According to Dr Ho, while you present with a number of factors which could be described as risk factors – poor coping mechanisms, emotional and behavioural dysregulation, poor consequential thinking and interpersonal difficulties – you also have several protective factors to help lower your risk of re-offending. These include your supportive partner, your stable employment and accommodation, and the existence of a team of medical and allied health professionals.
[16]Ibid p.9
Applicable Sentencing Factors
45In formulating an appropriate sentence in your case, the Sentencing Act 1991 requires me to have regard to various factors. I have already referred to the maximum penalties for the crime of incest, the gravity of your offending and your level of responsibility for it, and relevant aspects of your personal character.
46I have also taken into consideration your plea of guilty. Notwithstanding your inability to acknowledge the offending that forms the basis of Charge 2 on the Indictment when interviewed by police, your matter resolved to a plea of guilty to both charges at the committal mention stage. In written submissions, your Counsel indicated that you did so to avoid the distress that would have been caused to your victim otherwise. I am satisfied in the circumstances, that you entered your pleas of guilty at the earliest stage in proceedings. Your plea represents an acknowledgment of wrongdoing and in the circumstances, a willingness to facilitate the administration of justice. Your plea of guilty has spared Ms Milne the trauma of being cross-examined, and the costs and delays associated with a criminal trial. As the authorities have noted, particularly given the COVID-19 pandemic and its extraordinary impacts on the delays associated with the administration of criminal justice in Victoria, the utilitarian benefit to your plea of guilty is considerable, and a significant sentencing discount is therefore warranted.
47As the authorities have noted, in incest cases, an accused who pleads guilty is entitled to more than just the usual utilitarian benefits, as added benefits mitigating the sentence flow from avoiding the victim and other close family members from having to undergo the extreme stressors of a trial.[17]
[17]Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170 at paragraph [75]; Reid (a pseudonym) v The Queen [2014] 42 VR 295 at paragraph [111]
48I am satisfied that a further sentencing discount is warranted due to your genuine remorse for your offending. According to forensic psychologist, Dr Charlotte Ho, whilst you demonstrated limited understanding into your behaviour, possibly due to your cognitive functioning difficulties, and you struggled to articulate how the offending would have affected your victim, you did not attempt to justify your offending behaviour. According to Dr Ho, you "Accepted responsibilities and appeared remorseful".[18]
[18]Dr Charlotte Ho, Psychological Report (17 October 2020) p.2
49As realistically conceded by your Counsel, the issue of remorse is complicated in your case. Whilst as noted in the Prosecution Opening, when initially confronted by your then partner you 'Admitted the incidents', you only referred to one incident of offending with Dr Ho, and you informed Professor Brewer that the second incident did not occur. I agree with your Counsel that at times it is plain that you do not have fully developed insight into your offending, although this issue is complicated due to your background and cognitive issues. Clearly, your remorse is clearer in relation to Charge 1 on the Indictment.
50Having considered the matter, I also agree with your Counsel that you have gained a greater understanding into your offending behaviour, and therefore greater remorse, over time, through your discussions with others, including your partner, Ms Farley.
51Significantly, in the recent report from your treating psychologist, Dr de Jong, she indicated that "Significant remorse was strongly, repeatedly, and voluntarily expressed during treatment".[19] Likewise, the impressive character references tendered on your behalf, including heartfelt references from Ms Farley’s parents, all speak of the remorse that you have indicated for your offending. However, most significantly, you gave evidence before me at your plea hearing, an uncommon course for an offender to adopt at a plea hearing, where you articulated an apology to your victim, essentially in the terms set out in the document tendered at your plea hearing and marked Exhibit F. I accept that your apology was sincere and honest, and that notwithstanding your cognitive difficulties, over time you have grown to appreciate the gravity of your conduct. In all of the circumstances, I am prepared to allow a significant sentencing discount due to your remorse. The existence of genuine remorse is, of itself, rehabilitative, and lessens the degree to which the community needs protection from you. It also decreases the need for any sentence to reflect the principle of specific deterrence.
[19] Dr Tania de Jong, Confidential Psychological Report (23 April 2021) p.4
52I have also taken into consideration your prospects of rehabilitation, which I assess as being strong. You fall to be sentenced at the age of 44 with an absence of any prior criminal history. Your offending was short lived, albeit intense in its duration, with two incidents in seven days. You have pleaded guilty and acknowledged responsibility early. You are remorseful for your offending. You have shown considerable aptitude with regards to your long employment history. You have demonstrated the ability to maintain longstanding relationships, and I accept that you are currently in a loving and committed relationship with a woman who is clearly a positive influence on you. You also have the love and respect of your partner's parents. Significantly, you have embarked upon what has no doubt been a challenging rehabilitative treatment path, and you currently have a team of allied health professionals assisting you in that regard.
53The offending for which you will be sentenced occurred six years ago, and there has been no further offending within that period. I agree with your Counsel that since the offending period, your personal circumstances have changed considerably and you are now living in a healthy and supportive environment, possibly for the first time in your life.
54While I was not provided with any risk assessment with regard to your risk of further sexual offences, I am satisfied in all the circumstances that, provided you remain in the prosocial environment with appropriate supports upon your return to the community, your risk of such reoffending is not high, and therefore the need for community protection is decreased.
55In formulating an appropriate sentence in your case, I have also had regard to current sentencing practices, as one of the many sentencing factors to which I must have regard. While both your Counsel and Counsel for the Prosecution highlighted the absence of any truly factually comparable cases, both referred me to decisions of this Court and the Court of Appeal, and I have had regard to those decisions, together with others, in order to give appropriate weight to current sentencing practices.[20] It is noteworthy that of the decisions provided, and indeed decisions to which I have had regard on the issue of current sentencing practices, all involved incest offending that was in my view more serious than yours.
[20]Director of Public Prosecutions v Hardin (a pseudonym) [2018] VCC 1834;56While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past,[21] and current sentencing practices represent just one of the relevant sentencing factors to be considered, clearly, sentences for the crime of incest, particularly in recent years, have involved significant sentences of imprisonment of some years' duration.
[21]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at paragraph [83]
57In formulating an appropriate sentence in your case, I have had regard to the only purposes for which a sentence must be imposed. Previous sentencing decisions have made clear the importance of general deterrence and protection of the community in relation to sexual offences against children.[22] I am satisfied in the circumstances of your case, that the need for specific deterrence and due to the protective factors which I have previously described, the need for community protection, is decreased. There is also a need for any sentence to facilitate your rehabilitation as appropriate. Ultimately, however, your serious offending must be denounced on behalf of the community, and you must be justly punished for your crimes. Given that your offending occurred some seven days apart, and in somewhat different circumstances, there is a need, in my view, for a degree of cumulation between the two charges, subject to the overriding principle of totality.
[22]Director of Public Prosecutions v Tewksbury (a pseudonym) [2018] A Crim R 205 at paragraph [82]
58Finally, in fixing an appropriate sentence and allowing for a parole eligibility component, I have had regard to the parsimony principle – that is, the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
Sentence to be Imposed
59I come now, Mr Argyle, to the portion of my sentencing remarks where I pass sentence on you. In my view, there is no alternative to a sentence of imprisonment, of some length, to be immediately served. The gravity of your conduct precludes consideration of a combination sentence of imprisonment with a community correction order.
60On Charge 1, incest, you are convicted and sentenced to 4 years' imprisonment. This is the base sentence.
61On Charge 2, incest, you are convicted and sentenced to 4 years' imprisonment.
62I order that 12 months on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, making a total effective sentence of 5 years' imprisonment.
63I turn now to the issue of parole. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances.
64Due to the powerful constellation of mitigatory factors in your case, I have concluded that it is appropriate to allow for a longer than usual parole component to your sentence. Accordingly, the non-parole period – that is, the period of imprisonment to be served before which you become eligible for parole – will be shorter than usual, to appropriately take account of the powerful mitigatory factors in this case, and to facilitate your reintegration into the community, and ultimate rehabilitation.
65In this case, I order that you serve a period of 2 years and 6 months before becoming eligible for parole.
66Pursuant to s.18 of the Sentencing Act 1991, I declare a period of 14 days has been served by way of pre-sentence detention, and I order that this period be administratively deducted from your sentence.
67Pursuant to s.6AAA of the Sentencing Act 1991, were it not for your pleas of guilty, I would have imposed a total effective sentence of 7 years' imprisonment, with a non-parole period of 5 years.
68
Finally, you having been convicted of two class one offences under the
Sex Offenders Registration Act2004, registration under the scheme is mandatory and the reporting period is for life. Paperwork will be provided to Mr Argyle in that regard.
69Yes, thank you. Firstly, turning to you, Ms Barry. Any issues, ambiguities in relation to the sentence? Anything I have missed? I could not hear you, but I think you said no.
70MS BARRY: Sorry. There is nothing, Your Honour.
71HIS HONOUR: Thank you. Mr Taaffe, anything from your end?
72MR TAAFFE: No, Your Honour.
73
HIS HONOUR: Yes, all right. The paperwork in relation to the
Sex Offenders Registration Act2004 will be provided, as I understand it, to the prison. Mr Argyle will need to sign an acknowledgment of receipt and that will be forwarded back to the court. Yes, thank you.
74MS BARRY: As the court pleases.
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Grantley (a pseudonym)
v The Queen [2018] 272 A Crim R 340
Grantley (a pseudonym)
v The Queen (supra); Carter (a pseudonym) v The Queen (supra); Director of Public Prosecutions (Vic) v Wilson (a pseudonym) [2018] VSCA 263; Director of Public Prosecutions v Tewksbury
(a pseudonym) (supra); Director of Public Prosecutions v Shearer (a pseudonym) [2019] VSCA 47
0
7
0