Director of Public Prosecutions v Bauer (a pseudonym)
[2016] VCC 1506
•11 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DENNIS BAUER (a pseudonym) No. 2 |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 30-31 March, 1,4-7, 26-29 April, 2-6, 9-10 May, 1 September 2016 | |
DATE OF SENTENCE: | 11 October 2016 | |
CASE MAY BE CITED AS: | DPP v Bauer (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1506 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences against a child
Catchwords: Indecent act with a child – sexual penetration of a child under 16 – sexual offences of a child under care, supervision or authority – breach of trust – sexual abuse of child by a parent figure
Legislation Cited:
Cases Cited:R v Lomax [1998] 1 VR 551, R v Cumberbatch (2004) 8 VR 9, R v Yates [1985] VR 41, DPP v Toomey [2006] VSCA 90, DPP v Dalgliesh [2016] VSCA 148
Sentence:Imprisonment of 9 years and 7 months with 7 years to be served before becoming eligible for parole, Registered Sex Offender
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Papas QC | Office of Public Prosecutions |
| For the Accused | Ms. C. Randazzo SC with | Doogue O’Brien George |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the names of the offender and the complainant and the complainant’s sister in these reasons. I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[1].
[1] Section 4 Judicial Proceedings Reports Act
2 Dennis Bauer[2], in May of this year, you were found guilty by a jury for the second time of sexual offences committed from 1988 to 1998 against a person who was your foster daughter, Miranda Charlton[3]. The jury were satisfied beyond reasonable doubt that you committed 7 charges of indecent assault, which at the time of the offending had a maximum penalty of 5 years’ imprisonment; 4 charges of an indecent act with a child under 16, which had a maximum penalty of 10 years’ imprisonment; one charge of attempted sexual penetration of a child under ten, which had a maximum penalty of 10 years’ imprisonment; one charge of sexual penetration of a child under ten, which had a maximum penalty of 20 years’ imprisonment; 4 charges of sexual penetration of a child under 16, which had a maximum penalty of 10 years’ imprisonment; and one charge of sexual penetration of child under 16 years where the child was under your care, supervision or authority, which had a maximum penalty of 15 years’ imprisonment.
[2] A pseudonym
[3] A pseudonym
3 It is necessary to outline your offending, in order to establish the basis for the sentences to be imposed. This was done by the original sentencing judge[4], and again in the judgment of the Court of Appeal[5], but as the charge numbers are different due to the indictment at that time containing a number of other complainants with charges relating to them, I think it necessary that I outline your offending here.
[4] Sentence dated 15 August 2013, [17]-[41]
[5]Bauer ( a pseudonym) v R [2015] VSCA 55, [75]-[90]
4 In about 1985 or 1986, Miranda Charlton was placed with you and your then wife at the age of two by the Department of Human Services, as it then was called. Her younger half-sister, Penelope[6], then a baby, was also placed with your family. Both of them came to regard you and your wife as, and called you, dad and mum.
[6] A pseudonym
5 When Miranda was aged about 5 years old, you placed her hand on your penis (charge 1 – indecent assault). I am satisfied that this act was accompanied by you playing a pornographic video, and that during the incident, you also penetrated Miranda’s vagina with your finger. Those acts were not the subject of a charge, but as surrounding circumstances of a serious sexual nature, those acts make the indecent assault even more serious.
6 Charge 2 of indecent assault was based on the evidence of Miranda’s younger sister, Penelope. While Miranda herself gave no evidence about this particular event, as far as I can tell she was never asked about it; and in the context of the offending that you have been found to have committed against her over a period of about ten years, it would not be surprising if she did not remember it had she been asked. When Penelope was aged about 5, she saw you place Miranda’s hand onto your penis while in the bath (charge 2 – indecent assault). Miranda was aged about seven years.
7 For charges 3 and 4 of indecent assault, on an occasion that the family were travelling in the family van, your wife was driving, and when Miranda and her sister did not obey instructions to behave, she and her sister were separated. You went to sit with Miranda in the last row of seating. Undeterred by the presence of your wife and others in the van, under a blanket placed over your laps, you rubbed Miranda’s vagina and put her hand on your penis (charges 3 and 4 – indecent assault). Miranda was aged seven to nine years.
8 When Miranda was aged about eight, you took her into your bedroom and in simultaneous acts you licked her vagina (charge 14 - indecent assault) and inserted your penis into her mouth (charge 15 – sexual penetration of a child under ten). I am satisfied that you also made her suck your scrotum, saying that your wife never did that, which was not charged as an offence, but which is an example of the level of depravity that you were engaged in with a young child. I consider charge 15 to be the most serious of your offences.
9 When Miranda was aged eight to nine years, while she was sleeping in her sister’s bed alone, you touched her vagina (charge 5 – indecent assault) and attempted to insert your penis into her vagina (charge 6 – attempted sexual penetration of a child under ten). You asked her if you could “put it in” her and you tried to do so, but she said, “no, no, no, it’s actually really hurting me, I don’t want you to put it in me”. I consider charge 6 to be one of the most serious of your offences.
10 On another occasion in your bedroom, after showing Miranda pornographic photographs, you put her hand on your penis and made her masturbate you until you ejaculated onto her stomach (charge 7 – indecent assault). You also touched her vagina inside and outside, which acts were not charged as offences. Miranda was aged about eight years.
11 In Miranda’s bedroom, when she was aged 9 years and lying ill in bed, you rubbed her vagina (charge 8 – indecent assault). Your mother was present elsewhere in the house.
12 When Miranda was aged 9 or 10 years, you rubbed her vagina while you were both on your work tractor and you were driving it home (charge 9 – indecent assault).
13 On one occasion when Miranda was aged between 9 and 11 years, you committed four acts of sexual penetration on her. In your work truck at a property you were working at, you inserted your finger into her vagina (charge ten), inserted your tongue into her vagina (charge 11), again inserted your finger into her vagina (charge 12), and then inserted your penis into her mouth until you ejaculated into her mouth, and made her swallow your ejaculate (charge 13). I consider charge 13 to be one of the most serious of your offences.
14 When she was aged 11 years, in your work van at your work premises, you rubbed your penis against Miranda’s vagina until you ejaculated onto her stomach (charge 16 – indecent assault).
15 Miranda left your home when she was aged 12, in circumstances where your wife, her foster mother, told the Department that she could not deal any more with what she described as Miranda’s behavioural problems. By the jury’s verdict, you had been abusing Miranda for about 7 years, and so it is at least possible that abuse had an impact on her behaviour.
16 When she was 13 years old, Miranda returned to visit her sister who remained living with you. As a result of the distance from where she was then living, Miranda had to stay at your house. On that occasion, you took advantage of her return to your house, and put your finger into her vagina, while she was in bed in the spare room (charge 17 – sexual penetration of a child under your care, supervision or authority). You also put her hand on your penis, although that was not charged as an offence. The jury found that Miranda was under your care, supervision or authority, although no longer formally your foster daughter. That finding is an aggravating circumstance of this offence, increasing the maximum sentence.
17 Finally, when she was aged 15, Miranda again came to your house to visit her sister, and on this occasion, you touched her vagina over her clothing (charge 18 – indecent act). She said you were grabbing her, telling her you wanted to kiss her like a boyfriend, and you pulled your pants down to show her your erection, saying to her, “This is what you do to me”.
18 Miranda gave evidence of many other incidents of sexual abuse, and I am satisfied that the offences for which you are to be sentenced occurred against a background of years of sexual acts committed by you against her.
19 While all of your offences are serious, I find that the most serious are charge 15, when you orally penetrated your foster child when she was 8 years old; charge 13, when you orally penetrated her when she was aged nine to 11 years and ejaculated into her mouth; and charge 6, when you attempted to vaginally penetrate her when she was aged eight to nine years. The surrounding circumstances of other charges make them serious examples of that type of offence: charge 1, when at the time you put Miranda’s hand on your penis, you also digitally penetrated her when she was five years old; and charges 7 and 16, when you made her masturbate you until you ejaculated on her stomach.
20 In a submission made on your behalf by counsel[7], it was put firstly that none of the charges involved penile–vaginal or penile-anal penetration and secondly, that “It is well established that those are more serious forms of offending than those of which” you have been convicted. You were in fact convicted of attempted penile–vaginal penetration (charge 6), and in my view, the law is clear that the sentencing judge must look at the facts and circumstances in the particular case, and have regard to the express stipulation of Parliament in 1991 that what formerly was not characterised as penetration is now to be included as such for the purposes of the definition of sexual offences of the most serious kind.[8] I have assessed charge 6 and all other penetration charges in accordance with these principles.
[7] Written submissions received on 1 September 2016, [21]
[8] R v Lomax [1998] 1 VR 551, 559 citing Ibbs v R (1987) 163 CLR 447; R v Sheriff (unreported) Victorian court of Appeal, 19 March 1998, 11-12
21 There are a number of matters that make your overall offending even more serious:
· First is the most egregious breach of trust between you as her foster father and Miranda as a child estranged from her biological family, a child who came to consider you and your wife as “mum and dad”, as she had known no other home life;
· Next, is the ten year period of offending;
· Next, is her age, starting from about five years;
· Next, is the difference in your ages, about 37 years, you being aged 42-53 during the period of abuse;
· Next, is the persistence of your abuse of her, leading you to offend whenever and wherever the opportunity arose, including when she came back to your house to visit her sister; and
· Last, is the brazen nature of your attacks, for example, occasions when your wife or mother or other children were in the house, or nearby, or in the van.
22 Ms Charlton is now aged in her early 30’s. She provided a statement[9] as to the impact on her of your offending, and read it out in court. That statement was an eloquent and moving recital of the hurt, betrayal and longstanding issues that your appalling crimes have caused Ms Charlton. She has suffered greatly. Yet, her statement was also a testament to her resilience and extraordinary will, to overcome a potentially ruinous start in life from your ten years of abuse of her, from pre-school child to teenager. There is still pain; there is still fear; there is still lack of trust; but Ms Charlton is a strong person who has not let those years of appalling abuse define her as a victim. I recognise there is still some way to go in her recovery, but her message of hope came through loud and clear. I wish her well for the future.
[9] Exhibit A
23 I mentioned at the outset of these remarks that you had been convicted of the offences against Ms Charlton for a second time. You were put on trial in 2013 for offences alleged against six complainants, including Ms Charlton. After a joint trial you were convicted in respect of charges relating to five complainants, and pleaded guilty in respect of the sixth complainant, who unlike all the others, was nearly an adult at the time you first offended against her.
24 In 2015, the Court of Appeal permanently stayed the charges relating to two complainants. The case relating to three complainants, including Ms Charlton, was returned to this court for re-trial, with the majority stating that it was for the trial judge to determine whether those charges should be heard in a joint trial[10]. The prosecution determined to have three separate trials before the matter came before the court for re-trial and so there was no consideration of the issue, no submissions or discussion about joinder and cross-admissibility, and no ruling delivered. You were acquitted of the charges relating to the two remaining complainants in the two other separate trials before me.
[10]Bauer [2015] VSCA 55, [6], [37]
25 You have shown no remorse in respect of your offending against Ms Charlton. That is not an aggravating feature, but it means that you do not obtain the benefit that usually flows from a plea of guilty demonstrating remorse. I do recognise however, that you instructed your counsel not to oppose the prosecution’s application for the recorded evidence of the complainants, including Ms Charlton, to be used as the evidence in each re-trial, which saved them from the ordeal of giving evidence again, if they so chose. In respect of Ms Charlton’s sister, it saved her from giving evidence on two more occasions as a result of the prosecution decision for separate trials, because she was a witness in the trial of the offences against Ms Charlton, as well as being a complainant witness in her own trial.
26 There are some factors that senior counsel on your behalf submitted that I should take into account in your favour[11]. The first of these is your health. At the time of your sentencing in August 2013 after the first trial, you had already been diagnosed with prostate cancer in February 2010, undergoing radical surgery for removal of the prostate gland. Although there appears to have been no recurrence of the cancer, an adverse effect of the surgery has been incontinence. You are required to wear pads, and from your previous experience in custody, have found this difficult to manage in that setting, including one occasion when incontinence pads were simply not available at the prison. You have suffered from gastric reflux since before the first sentence was imposed, and continue on medication for that.
[11] Exhibit 1 – Folder of materials including written submissions
27 During the plea before me, I was told[12] that in November 2013, three months after you were sentenced, you were diagnosed with acute pancreatitis with pancreatic necrosis, and your gall bladder was removed later that month. Between November and January 2014, you remained in the St Augustine’s Ward of St. Vincent’s Hospital with severe necrotising pancreatitis, and then septicaemia, leading to a removal of half of the pancreas, and insertion of draining and feeding tubes. When you were returned to Port Phillip Prison, you remained in St John’s Unit until mid-February.
[12] Exhibit 1 Tab 3 – Medical records; Tab 4 Prison Medical Records
28 You were released on bail following the Court of Appeal decision in April 2015, and returned to custody following the jury’s verdict in May 2016. Following the plea for this trial on 1 September, I received further information from your solicitors about your health, from your prison records, which I received today as an exhibit.[13] These show that shortly after your remand in May, you were referred to St Vincent’s Hospital for cardiac investigation in relation to a heart murmur. A further assessment took place the day after the plea, but there is no up to date information about those investigations.
[13] Exhibit 2
29 I take into account that as you are not in good health, and aged nearly 71 years, prison will therefore be more burdensome for you than for a younger person in good health. I also recognise that Justice Health has managed your health requirements, and it is expected that they will continue to do so.
30 I accept that your advancing age is a factor to take into account, and that you are older now than you would have been if sentenced soon after these matters were first reported to police, and you are older than when first sentenced, but your advancing age is only one factor, and the correct approach is that the punishment must be fairly proportionate and in accordance with the prevailing standards[14]. Whether the sentence I impose destroys any reasonable expectation of a useful life after release does not determine the real issue, which is whether the sentence imposed is appropriate to the crimes in all of the circumstances[15].
[14]R v Cumberbatch (2004) 8 VR 9, [11]-[13]
[15]R v Yates [1985] VR 41, 48
31 The next factors that senior counsel on your behalf submitted that I should take into account in your favour are your work and family history, your reputation in the community, delay in this matter being finalised, and the fact that you are to be sentenced for these offences, commencing in 1988, as a person who had not offended before then.
32 I was referred by your counsel to the evidence produced on the plea before the first sentencing judge[16]. I take into account your personal background and work history as outlined in the first sentence. I also accept that people who knew you, including during the years of offending, considered you to be honest, trustworthy, involved in community activities and helpful to others in passing on knowledge, and that in the business and professional community involved in your business of irrigation and draining, you were highly regarded. It is not uncommon that people of seeming good character commit serious sexual offences behind closed doors, unknown to other family and friends. I take into account that you were of good character until 1988.
[16] Exhibit 1 – Tabs 2 and 5
33 You no longer have the support of your wife, the marriage having broken down in 2009, and you do not have the support of a daughter who was a complainant in which the jury on a separate re-trial acquitted you. You do still have support from your mother, who, although in her 90’s, regularly attended your trials, your brother, who visits you in prison, and two of your children. Your mother finds it physically difficult to visit you in prison, understandably, and so I take into account that not seeing her, at her advanced age, will be difficult for you.
34 I have also had regard to the report of forensic and clinical psychologist Patrick Newton, dated 1 August 2013 received by the first sentencing judge[17]. Mr Newton was, of course, assessing you against a background of convictions in respect of five very young females and one 17-18 year old female. His opinion is therefore of limited value, and I have no up to date report. He assessed your mental status at that time as being normal, and he was unable to be definitive about your sexual adjustment as you refused to discuss any of the offending of which you were then convicted. On the material before him, he thought the most pressing need was for you to participate in a comprehensive sex offender treatment program. I do not know if you began any such treatment on your first prison sentence; there may not have been sufficient time in custody to commence the program, and also, I am aware that if an offender denies the offending, then the program is not undertaken.
[17] Exhibit 1 – Tab 1
35 Even though I am only dealing with offences against one child, the offending is so serious and over such a long period, that I consider it essential for you to undertake such a program. Even though there is no longer any risk to Ms Charlton, and despite your physical health and the fact that you have not offended since the offences against Penelope's partner, I am of the view that it is likely that you still pose a sexual risk to female children, without completion of such a program.
36 As a result, your prospects of rehabilitation are difficult to assess. Whatever the level of those prospects, I can say that they would be enhanced by you undergoing treatment in respect of sexual offending, particularly against a child.
37 As to delay, it was submitted that the delay “coming to Court is extraordinary”[18]. Where the evidence is that you told the complainant that your sexual activity with her was "your little secret” and that she could not tell anyone, and that Ms Charlton did not tell anyone until after she left your home, delay up to the time of report to police is not a matter that I take into account in your favour. The law recognises this is a common occurrence for victims of sexual offending, especially children. However that delay cannot significantly mitigate against your crime, because you contributed to her inability to complain about it by telling her that she could not tell anyone.
[18] Exhibit 1- Written submissions
38 Next, delay from the time of report to police after the offending occurred is a different consideration for me than for the first sentencing judge, where the allegations dated back many more years than in this trial. Ms Charlton first made a complaint in late 1997 or early 1998, but did not want to report to police. You offended against her one further time after that (charge 18). When Ms Charlton told a worker from DHS in 2000 what you had been doing to her, the worker reported the matter to the police, as Ms Charlton was still under 18 and reporting of sexual offending against her was mandatory. You became aware of the allegations at that time.
39 When your wife and Ms Charlton’s sister made statements contradicting her in 2000, the police did not pursue the matter. At the trial before me and at the first trial, Penelope gave evidence that she denied to DHS that she had observed you doing anything to her sister, that the denial was not true, but she said that was because she was still under age and living in your home in 2000, and did not want to be removed from there, away from the only family she had ever known. Later, after it became known that you had offended against Penelope’s same sex partner, who was by then aged 19, Penelope confirmed that she had observed certain things between you and her sister, and both complaints, (concerning Ms Charlton and Penelope’s partner) were prosecuted together with other allegations of which you have now been acquitted. In 2013, at the time of the first trial, you pleaded guilty in respect of the two indecent assaults on Penelope’s partner and received ten months’ imprisonment on each, reduced to eight months on appeal.
40 The prosecution conceded that delay was a factor to be taken into account from 2000. In my view, however, the period between 2000 and 2010 in which no prosecution took place, should only be taken into account to a limited degree. On the one hand, you did not have the matter hanging over your head, because the police had said they would not proceed, and as you have now been found to have committed the offences against Ms Charlton, during that period 2000-2010, you probably thought that you had got away with your crimes. I do not take into account delay that has that sort of impact.
41 On the other hand, as you may have thought that was the end of the matter, or alternatively, were worried that there was still potential for a prosecution to commence, I do take into account that the allegations of Ms Charlton were revived later, when the allegations of other complainants were reported to the police in 2010. I also take into account the stresses involved in you having multiple court hearings after you were charged in 2011, through to 2016, but they were normal court processes that did not have any inordinate delay associated with them.
42 I also have regard to the clear statements of the Court of Appeal[19] that the lapse of time since the commission of the offences, and the “otherwise blameless life” of the offender are not unusual, and that “it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators”.
[19]DPP v Toomey [2006] VSCA 90, [14], [17]
43 Both counsel addressed me on the approach to be taken to sentencing you on a re-trial and agreed that I should read the remarks of the first sentencing judge, which I have done. Your counsel submitted that the effective sentence imposed by the first sentencing judge in respect of Ms Charlton was nine years, and that is the ceiling for any sentence I impose, and because of the factors to be taken into account since the first trial, the sentence should be less than that.
44 While it is clear that the first sentence should normally be taken as a ceiling, I am not bound by it[20], and I consider that there are some important differences between the first sentence and the sentence I am delivering today.
[20] R v HMcL (2000) 203 CLR 452, 475-6; Chen [1993] 2 VR 139, 158-160, citing with approval Williams (1982) 5 A Crim R 81; McCullagh [2003] VSC 3; TY [2009] VSCA 226, [78]-[82]
45 First, the original judge was sentencing you in respect of six complainants, one of them following a plea of guilty, so that the ‘ceiling’ was arrived at by a process of accumulation of many more charges, and it is to be expected that totality played an important role in both the individual sentences and the total sentence; whereas I am sentencing you in respect of one complainant only, but for protracted offending of an extremely serious nature, following a trial.
46 Next, in a judgment handed down by the Court of Appeal since the original sentence was delivered, it was made clear, if it was not already clear, that sexual abuse of children, particularly by a parent figure, in a course of conduct over a lengthy period, demands condign punishment[21]. That case refers to another case, in which the current sentencing practice for the offence of sexual penetration of a child was examined[22] and found to be inadequate.
[21]DPP v Dalgliesh [2016] VSCA 148, [43], [44],
[22]DPP v CPD [2009] VSCA 114
47 The applicable principles for this sentence in these circumstances appear to me to be as follows:
· The sentencing judge on a re-trial must exercise [her] own judgement and [her] own discretion, having regard to the offence committed, the circumstances of its commission, the antecedents of the prisoner and his personal circumstances, the sentence imposed on first conviction, and the principle that unless there is some strong ground, there should not be a disparity between the sentences imposed on the first and second occasions[23];
[23]Williams, 83-84
· If, having regard to the first sentence and policy considerations, and all other factors relevant to sentence, the second judge is of the opinion that the first sentence was inadequate or inappropriate, the second judge must act on that opinion[24];
[24]Williams ibid; HMcL,475-6
· When sentencing generally, not after a re-trial, existing sentencing practice does not constrain a sentencing judge from imposing a higher or lower sentence than the prevailing practice[25];
[25]Dalgliesh, [118]
· Over time, views may change about the length of sentence which should be imposed in particular cases, and when that occurs, the notions of manifest excessiveness or manifest inadequacy will be affected, and one must allow for the possibility that sentences to this point have simply been too low[26];
[26]DPP v OJA (2007) 172 A Crim R 182 , [31]
· The guidance provided by current sentencing practices for a particular offence may conflict with the guidance provided by the statutory maximum, and where that is so, the requirement to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences[27]; and
· The Court of Appeal in 2009, and again in 2016, found that there is a disparity between the maximum penalties and the sentences handed down for sexual penetration offences against children[28], with a real question as to the adequacy of current sentencing.
[27]CPD, [7], citing R v AB (No 2) (2008) 18 VR 291, [68], [71]-[74]; CPD, [72]-[81]
[28]CPD,[8]-[9]; DDJ (2009) 22 VR 444, [72]; Dalgliesh,[87]
48 The combination of the different factors applying to the first and second sentences and a consideration of the principles I have just summarised, leads me to the conclusion that I am not bound by the first sentence for offending in respect of this complainant, and I propose to sentence in accordance with the applicable principles. These include a starting point[29] of imposing proper and proportionate[30] sentences individually on each charge, before turning to concurrency and cumulation and, ultimately, totality[31].
[29]Bauer, [194]
[30] As the prisoner is a ‘serious sex offender’ from charge 3 onwards, a disproportionate sentence may be imposed.
[31] Totality is qualified by the ‘serious sex offender’ regime.
49 I hasten to add what should be obvious: that in imposing different sentences on some charges, I am not being critical of the first sentencing judge who had an extremely difficult sentencing task; but I have only one complainant to consider, I have a different opinion on some charges, and I must exercise my own discretion.
50 As a result, I propose to impose higher sentences on certain charges, even having regard to the factors that must be taken into account in your favour and the policy considerations, for the following reasons:
· Charge 1 – because I have reached the view that a sentence of 14 months’ imprisonment with a maximum of five years does not sufficiently reflect the seriousness of the offence by reference to the maximum penalty, the surrounding circumstances and the lack of remorse;
· Charges 6 and 10-13 - because I have reached the view that a sentence of 18 months’ imprisonment with a maximum of ten years does not sufficiently reflect the seriousness of each offence by reference to the maximum penalty, and the lack of remorse; or reflect an appropriate relativity[32] with the sentence of 18 months imposed on charge 7 which has a five year maximum and is objectively less serious;
[32] While this term was used in Hogarth (2012) 37 VR 658 in respect of relativities between sentences for the same type of offence, it usefully describes my concern for a sentence of the same length being imposed on sentences of differing type and seriousness. Cited in Dalgliesh,[89].
· Charge 7- because I have reached the view that a sentence of 18 months’ imprisonment with a maximum of five years does not sufficiently reflect the seriousness of the offence by reference to the maximum penalty, the surrounding circumstances and the lack of remorse;
· Charge 15 - because I have reached the view that a sentence of 20 months’ imprisonment with a maximum of 20 years does not sufficiently reflect the seriousness of the offence by reference to the maximum penalty, the surrounding circumstances including the complainant’s age, the simultaneous offending in charge 14 and the lack of remorse; or reflect an appropriate relativity[33] with the sentence of 20 months imposed on charge 16 which has a ten year maximum and is objectively less serious; and the sentence does not appear to be in accordance with the current sentencing practice for sexual penetration as described in CPD[34] ; and
· Charge 17 - because I have reached the view that a sentence of 12 months’ imprisonment with a maximum of 15 years does not sufficiently reflect the seriousness of the offence by reference to the maximum penalty, and the lack of remorse.
[33] See above n 31.
[34] In CPD, for similarly aged complainants, Table C: Sexual penetration of a child under 10 years (20/25 years maximum) shows that of the 25 appeal decisions there referred to, only three cases had sentences imposed for 20 months or less.
51 I have listed the maximum penalties and sentences at the first trial together with the offence type and the offending conduct in a table as Appendix A to these reasons.
52 Other sentences will not change, because there are no ‘strong grounds’[35] to do so. For charge 5, there is no change because the objective seriousness in the trial before me is to be assessed in light of the evidence being of touching the vagina, whereas at the first trial, the indecent assault seems to have been alleged as a penetration of the vagina.
[35]Williams, 83-84
53 In respect of current sentencing practices, I have had regard to the fact that I am sentencing you now for offences committed between 1988 and 1998, with variation in some maximum sentences. I have been assisted by the case of CPD, where Table C sets out 25 cases, the dates of which indicate that many of them would involve offending during the same period as yours.
54 There are two final matters before I turn to sentence. The first is that you are to be sentenced as a serious sexual offender after sentences of imprisonment are imposed on charges 1 and 2, which will happen. Although you are to be sentenced as a first time offender, most of the factors that make your offending against Ms Charlton serious apply from the first charge, and there is no alternative to a term of imprisonment for all charges.
55 As a result of you being sentenced as a serious sex offender, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed today. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offence. The prosecution do not seek that, and I do not intend to do that.
56 It is also necessary for the sentences I impose today to be cumulative on each other unless I order otherwise, because of your status as a serious sex offender. I have decided to order some concurrency because of the factor of delay that I have taken into account to a limited extent, and also because of the need for the sentence I impose to be considered in combination with the sentence you have already served for similar, albeit less serious offending, committed against Penelope’s partner after the offences for which I am sentencing you, so that the sentences combined reflect to a degree the totality of your offending. I take into account also, that you have already had time served on those offences declared as served, and because of the re-trial, have lost the opportunity for concurrency. It would have been a limited benefit, as the sentence today is much longer than the sentence you received on that other offending.
57 Your counsel submitted that cumulation should be modest. I have had regard to the serious sex offender sentencing regime and recognise there are limits placed on the application of the principle of totality by the law relating to sentences imposed on serious sex offenders[36]. However, I have still considered the need for today’s sentence to reflect to an extent the totality of your offending: that is, nine[37] charges of indecent assault; four charges of an indecent act with a child under 16; one charge of attempted sexual penetration of a child under ten; one charge of sexual penetration of a child under ten; four charges of sexual penetration of a child under 16; and one charge of sexual penetration of child under 16 years where the child was under your care, supervision or authority. In the end, however, because of the multiple constraints on me of re-sentencing, current sentencing practice and totality, and the factors mitigating the seriousness of your offending, the cumulation will in fact be modest.
[36]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
[37] Including those to which the prisoner pleaded guilty
58 The second matter is that as a result of my sentence today, you again become a registrable sex offender. You will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. My associate will now ask you to sign a document to acknowledge that you have received notice of these obligations.
59 Turning now to the sentence to be imposed, your offending against Ms Charlton was well described by the first sentencing judge[38]:
“[Ms Charlton was] a particularly vulnerable little girl, who had been removed from the care of her mentally unwell mother by the Department of Human Services and sent to you and your wife at the age of two. The tenor of [her] evidence, which was clearly accepted by the jury, was that you regarded her as your sexual plaything. From the time she was a very little girl you exposed her to pornographic videos which you made her imitate with you. You penetrated her digitally and orally on countless occasions. You ejaculated on her body and in her mouth. You subjected her to years and years of the most degrading sexual abuse. From her early childhood through to her adolescence she was the constant subject of your perverted lust.”
[38] Sentence dated 15 August 2013, [64]
60 Despite the factors that mitigate the seriousness of your offending, these are offences which the community expects to result in stern punishment. “A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate”[39]. “Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their care.”[40]
[39] Hedigan AJA, cited in Toomey, [18]
[40]Dalgliesh, [43]
61 The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence, particularly committed against a child, with added vulnerabilities, over a prolonged period of time, with the damage that has caused. I have also taken into account the importance of deterrence in this case. That means that by my sentence of you, I must try to deter other men from committing serious sexual offences against children, especially those within their care. Further, my sentence must seek to deter you from re-offending, which as I have said, is a risk that still exists, despite your age and ill health.
62 You are convicted and sentenced as follows:
63 On charge 1: indecent assault – one year six months’ imprisonment;
64 On charge 2: indecent assault – six months’ imprisonment;
65 On charge 3: indecent assault – ten months’ imprisonment;
66 On charge 4: indecent assault – ten months’ imprisonment;
67 On charge 5: indecent assault – eight months’ imprisonment;
68 On charge 6: attempted sexual penetration of a child under ten – two years six months’ imprisonment;
69 On charge 7: indecent assault – one year eight months’ imprisonment;
70 On charge 8: indecent assault – eight months’ imprisonment;
71 On charge 9: indecent assault – eight months’ imprisonment;
72 On charge 10: sexual penetration of a child under 16 – two years’ imprisonment;
73 On charge 11: sexual penetration of a child under 16 – two years’ imprisonment;
74 On charge 12: sexual penetration of a child under 16 – two years’ imprisonment;
75 On charge 13: sexual penetration of a child under 16 – two years six months’ imprisonment;
76 On charge 14: indecent assault – one year eight months’ imprisonment;
77 On charge 15: sexual penetration of a child under 10 – four years’ imprisonment;
78 On charge 16: sexual penetration of a child under 16 – one year eight months’ imprisonment;
79 On charge 17: sexual penetration of a child under 16 – two years’ imprisonment;
80 On charge 18: indecent act with a child under 16 – six months’ imprisonment.
81 I make the following orders for cumulation in the usual terms rather than in the terms required by the wording of s.6E Sentencing Act to make them easier to understand.
82 The sentence of four years on Charge 15 is the base sentence. I direct that eight months of the sentences imposed on charges 6, 13, and 17; four months of the sentences imposed on charges 1, 7, 10, 11, 12, 14 and 16; three months of the sentences imposed on charges 3 and 4; two months of the sentences imposed on charges 5, 8, 9 and 18; and one month of the sentence imposed on charge 2, be served cumulatively on the sentence imposed on charge 15 and on each other.
83 That makes a total effective sentence of nine years seven months’ imprisonment.
84 I direct that you serve seven years before becoming eligible for parole.
85 I declare that you have served 664 days in pre-sentence detention not including today. These will be deducted administratively from your sentence.
86 I declare that in respect of charges three through to 18, you have been sentenced as a serious sex offender and direct that this be entered into the records of the court. Take a seat.
87 Does counsel wish me to just go over the orders for cumulation again?
88 MS RANDAZZO: From my perspective, I've missed charge 10 and 14, if Your Honour could just repeat - - -
89 HER HONOUR: Yes, in terms of the cumulation?
90 MS RANDAZZO: Yes, in terms of cumulation, yes please, Your Honour.
91 HER HONOUR: Yes, so I'll say it in total.
92 The sentence of four years on charge 15 is the base sentence. I direct that eight months of the sentences imposed on charges 6, 13 and 17; four months on the sentences imposed on charges 1, 7, 10, 11, 12, 14 and 16; three months of the sentences imposed on charges 3 and 4; two months of the sentences imposed on charges 5, 8, 9 and 18; and, one month on the sentence imposed on charge 2, be served cumulatively on the sentence imposed on charge 15 and on each other.
93 MS RANDAZZO: Thank you, Your Honour.
94 HER HONOUR: An unrevised set of these remarks will be available very shortly and provided electronically to the parties. There are no further orders required, Ms Bleazby?
95 MS BLEAZBY: No, Your Honour.
96 HER HONOUR: I thank everyone for their assistance and attendance in this matter. I should have said at the outset that I do apologise for the length of time since the plea was heard on 1 September for this, but as you could appreciate with the length of the sentence, it was not an easy task and took considerable time and consideration. Adjourn the court please to 10.30 tomorrow morning.
- - -
APPENDIX A : TABLE OF CHARGES
| Charge No. at 1st trial | Charge No. at 2nd trial | Type of offence | Sexual act and age of victim | Maximum sentence | Sentence at 1st trial |
| 9 | 1 | Indecent assault | Hand on penis plus uncharged act of penetration of vagina with finger (5 yo) | 5 years | 14 months |
| 15 | 2 | “ | Hand on penis (7 yo) | “ | 6 months |
| 17 | 3 | “ | Rubbed vagina (7-9 yo) | “ | 10 months |
| 18 | 4 | “ | Hand on penis (7-9 yo) | “ | 10 months |
| 20 | 5 | “ | Touched vagina (8-9 yo) | “ | 8 months |
| 21 | 6 | Attempted sexual penetration of a child under 10 | Attempted to insert penis into vagina (8-9 yo) | 10 years | 18 months |
| 22 | 7 | Indecent assault | Made her masturbate him until ejaculation onto her body (8 yo) | 5 years | 18 months |
| 23 | 8 | “ | Rubbed vagina (9 yo) | “ | 8 months |
| 24 | 9 | “ | Rubbed vagina (9-10 yo) | “ | 8 months |
| 25 | 10 | Sexual penetration < 16 | Penetration of vagina with finger (9-11 yo) | 10 years | 18 months |
| 26 | 11 | “ | Penetration of vagina with tongue (9-11 yo) | “ | 18 months |
| 28 | 12 | Penetration of vagina with finger (9-11 yo) | “ | 18 months | |
| 29 | 13 | “ | Penetration of mouth with penis; ejaculated in mouth (9-11 yo) | “ | 2 years |
| 30 | 14 | Indecent assault | Licked vagina (8 yo) | 5 years | 20 months |
| 31 | 15 | Sexual penetration < 10 | Penetration of mouth with penis; (8 yo) | 20 years | 20 months |
| 33 | 16 | Indecent assault | Rubbed vagina with penis until ejaculation onto body (11 yo) | 5 years | 20 months |
| 34 | 17 | Sexual penetration < 16 under csa | Penetration of vagina with finger (13 yo) | 15 years | 12 months |
| 37 | 18 | Indecent act < 16 | Touched vagina (15 yo) | 10 years | 6 months |
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