Director of Public Prosecutions v Ashwood (a pseudonym)

[2022] VCC 1583

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER ASHWOOD (a pseudonym)

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JUDGE:

HIS HONOUR JUDGE LACAVA

WHERE HELD:

Melbourne

DATE OF HEARING:

25 July 2022

DATE OF SENTENCE:

DATE OF RESENTENCE:

9 September 2022

26 September 2022

CASE MAY BE CITED AS:

DPP v Ashwood (a pseudonym)

MEDIUM NEUTRAL CITATION:

[2022] VCC 1583

REASONS FOR RE-SENTENCE

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Subject: Aggregate sentence not permitted. Sentenced as a Serious Sexual Offender

Sentence: 12 years imprisonment with 7 and ½ years nonparole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Mr S. Russo

HIS HONOUR:

1On 9 September 2022 I sentenced you, Peter Ashwood[1], after you were convicted by a jury of eight (8) charges of incest of a step child contrary to s50D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016 (Charges 1 to 8), and one charge of producing child pornography (Charge 9), contrary to s51C(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[1] A pseudonym.

2On Charges 1 to 8 I sentenced you to an aggregate sentence of 12 years imprisonment, and on Charge 9 I sentenced you to a term of imprisonment of one year.  I did not make any orders for accumulation making a total effective sentence imposed of twelve (12) years imprisonment.  I fixed a minimum term of seven and a half years imprisonment before you would be eligible for release on parole.

3When I imposed an aggregate sentence on Charges 1 to 8, I was in error. That is because s9(1A) of the Sentencing Act 1991 ('the Act') prohibits the making of an aggregate sentence where the offences committed are a 'relevant offence' committed by a 'serious offender' within Part 2A of the Act, or where the offence committed is a 'standard sentencing' offence.

4Here, each of the offences of which you have been convicted is a relevant offence and you fall to be re-sentenced on Charges 3 to 9 inclusive as a serious sexual offender. Incest, as charged in Charges 1 to 8, is a sexual offence within clause 1 of Schedule 1 of the Sentencing Act 1991
sub paragraph (iva). Production of child abuse material is also a sexual offence within clause 1 of Schedule 1 of the Sentencing Act 1991
sub paragraph (xvig).

5Further, and as I referred to in my initial sentencing remarks, each of the offences of incest in Charges 1 to 8 is a standard sentencing offence.

6In sentencing you to an aggregate sentence on Charges 1 to 8 I imposed a penalty that is contrary to law, and in sentencing you on Charge 9. in not sentencing you on that charge as a serious sexual offender. I failed to impose a penalty that is required to be imposed by law.  In summary, I did not impose a sentence on each charge, and I did not sentence you on Charges 3 to 9 as a serious sexual offender as required by law. 

7In those circumstances I have decided to re-open the sentencing aspect of this matter of my own motion in exercise of the power contained in s104B of the Act, and I have given both the prosecution and the defence the right to be heard as to whether or not I should proceed to re-sentence in accordance with the law.

8In my sentencing remarks on 9 September 2022 I set out all of the facts and circumstances of your offending, and all of the matters urged upon me by your counsel in mitigation.  In re-sentencing you I do not repeat those matters.  These re-sentencing remarks must be read in conjunction with what I have already said.

9Because I will sentence you to a term of imprisonment on each of the charges, you will be sentenced on Charges 3 to 9 as a 'serious sexual offender' within the meaning of s6B of the Act.

10In determining the length of any prison sentence imposed on each charge, where you fall to be sentenced as a 'serious sexual offender', protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances, within s6D of the Act.

11This does not mean that the principles of proportionality and totality of sentencing are to be disregarded, unless in the exercise of my discretion, I consider that the circumstances before me make it appropriate to do so for good reason.  I do not consider that a disproportionate sentence is called for.  When I sentenced you on 9 September 2022, I said I thought your offending was opportunistic and that I thought your prospects for rehabilitation were reasonably good. In my view, the overall total effective sentence I will impose will properly and adequately provide for protection for the community. 

12I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence. 

13Further, s6E of the Act provides that every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence, must, unless otherwise directed, be served cumulatively on any other sentence I impose on you. I will impose some cumulation of the sentence imposed on some of those charges, and order some concurrency, which I regard as appropriate, taking account of all the circumstances discussed.

14I must also have regard to current sentencing practices for offending of this kind. In R v Kilic (2016) HCA 48 the High Court said:

Current sentencing practices are an important factor to be taken into account by a sentencing judge but only one of a number of factors, the most important being an assessment of the overall level of offending.

15In my judgement the sentences that I will now impose properly address the relevant sentencing principles here in all of the circumstances, namely general and specific deterrence, denunciation, protection of children and the public, just punishment and your prospects for rehabilitation. 

16On Charge 1, incest by digital penetration of the complainant's vagina, you are convicted and sentenced to a term of imprisonment of seven and a half years.

17On Charge 2, incest by penetration of the complainant's vagina with your tongue, you are convicted and sentenced to a term of imprisonment of eight (8) years.

18On Charge 3, incest by digital penetration of the complainant's vagina, you are convicted and sentenced to a term of imprisonment of seven and a half years.

19On Charge 4, incest by penetration of the complainant's vagina with your penis, you are convicted and sentenced to a term of imprisonment of ten (10) years.

20On Charge 5, incest by penetration of the complainant's vagina with your tongue, you are convicted and sentenced to a term of imprisonment of eight (8) years.

21On Charge 6. incest by penetration of the complainant's mouth with your penis, you are convicted and sentenced to a term of imprisonment of eight (8) years.

22On Charge 7, incest by penetration of the complainant's vagina with your tongue, you are convicted and sentenced to a term of imprisonment of eight (8) years.

23On Charge 8, incest by penetration of the complainant's mouth with your penis, you are convicted and sentenced to a term of imprisonment of ten (10) years.

24On Charge 9, producing child abuse material, you are convicted and sentence to a term of imprisonment of one (1) year.

25I direct that six months of each of the sentences imposed on Charges 5 to 8 inclusive, cumulate upon the sentence imposed on Charge 4, making a total effective sentence of 12 years imprisonment.

26I direct that you serve a minimum term of seven and a half years imprisonment before being eligible for release on parole.

27I declare there has been 193 days pre-sentence detention of the sentences passed this day and direct that 193 days be reckoned as having been already served of the sentences passed this day and be entered into the records of the Court and deducted administratively.

28Pursuant to s6F(1) of the Sentencing Act 1991 I direct that I have sentenced you on each of the Charges 3 to 9 inclusive as a 'serious sexual offender' within s6B of the said Act and I direct the fact of my having done so be entered into the records of this Court.

29Because you have been convicted of these crimes you are a registrable offender within the meaning of the Sex Offenders Registration Act 2004 with reporting obligations for life.

30Are there any questions arising out of that, Mr Russo?  I am sorry, we cannot hear you.

31MR RUSSO:  Apologies, Your Honour.  Only in the fact that my learned friend and I had 194 days pre-sentence detention.

32HIS HONOUR:  Very well.  I will alter that.

33MR RUSSO:  As Your Honour pleases.

34HIS HONOUR:  I declare 194 days pre-sentence detention.

35MR RUSSO:  As it please Your Honour.

36HIS HONOUR:  Do you have any questions, Mr D'Arcy?

37MR D'ARCY:  Your Honour, I did not quite get the cumulation.  It is counts 5 to 8, is it?  Six months on each?

38HIS HONOUR:  Yes.  Yes, five, six, seven and eight.

39MR D'ARCY:  Yes, thank you, Your Honour.

40HIS HONOUR:  Making it a total effective sentence of 12 years and seven and a half years non-parole period.

41MR D'ARCY:  Thank you, Your Honour.

42HIS HONOUR:  Thank you both.

43MR D'ARCY:  Thank you, Your Honour.

44MR RUSSO:  As Your Honour pleases.

45HIS HONOUR:  Adjourn the Court.

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