Director of Public Prosecutions v Bice
[2011] VCC 2029
•8 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01348
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARTIN BICE |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2011 | |
DATE OF SENTENCE: | 8 November 2011 | |
CASE MAY BE CITED AS: | DPP v Bice | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 2029 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – Plea of guilty – Maintaining sexual relationship with child under 16-10 years duration - Approaching worst category - Aggravating features – Past history significant depression
Legislation: Sex Offenders Registration Act 2004
Cases Cited:DPP v DDJ (2009) 22 VR 444; R v WEF [1998] 2 VR 385; DDP v Toomey [2006] VSCA 90; DPP v DJK [2003] VSCA 109; R v Khem [2008] VSCA 136; R v Magner [2004] VSCA 202 at 63; R v MMK [2005] NSW CCA 369; R v GMT [2006] VSCA 13; DPP v DZ [2009] VSCA 301
Sentence:Total Effective Sentence 12 years’ imprisonment with a non-parole period of 9 years’ imprisonment – Pre-sentence detention of 21 days declared as having been served – s.6AAA Sentencing Act declaration – Sex Offender Registration for Life – Ancillary Order Forensic sample
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A Hassan | Solicitor for Office Public Prosecutions |
| For the Accused | Mr A D Trood | Tony Hargreaves & Partners Lawyers |
The complainant’s name has been initialized to maintain her privacy.
HER HONOUR:
I shall refer to the complainant as KR in a bid to provide her with some anonymity in the course of the sentence but I do not mean any disrespect in this regard.
1 Martin Bice, you have pleaded guilty to one charge of maintaining a sexual relationship with a child under the age of sixteen years, which has a maximum penalty of twenty five years’ imprisonment.
Ancillary Orders
2 At this stage, I intend to make the ancillary orders sought in this case, which are not opposed by you. Firstly I make a forensic sample order such that you be required to provide a sample of saliva to an authorised officer. I make the order because of the seriousness of the offending, it being in the public interest to do so, you have a relevant prior conviction and the order is not opposed. Notwithstanding your present lack of opposition to the making of the order, I should warn you that if you do not co-operate with the authorised officer in the obtaining of the sample, reasonable force may be used in order to secure such sample.
3 The second order that I make is under the Sex Offenders Registration Act 2004. By reason of your conviction for this offence, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is, report, after your release from custody. Details in writing of these reporting conditions will be served upon you now by my associate. I will ask your counsel to attend to an acknowledgement of that notice and have you sign it. Thank you.
4 The particulars of maintaining a sexual relationship with the complainant, who was your natural daughter, are as follows:
(a) the introduction of your penis into the vagina of the complainant and/or;
(b) the introduction of your finger into the complainant’s vagina and/or;
(c) the introduction of your penis into the complainant’s mouth and/or;
(d) the introduction of your penis into the complainant’s anus and/or;
(e) the rubbing of your penis against the complainant’s vagina and/or;
(f) touching the complainant’s vagina and/or;
(g) the rubbing of your penis against the complainant’s bottom and/or;
(h) the touching of your penis by the complainant and/or;
(i) masturbating your penis in the complainant’s presence.
5 You were born on 23 January 1975 and are thirty six years old.
6 As aforesaid, the victim is your biological daughter. She was born on 13 January 1997, and is now fourteen years old.
7 Your offending spans ten years, commencing in 2001 and ending in 2010. The victim was four years old when your offending commenced and thirteen years old when it ended.
Background
8 The victim’s mother, RE had another child by you, a son, who is about two years younger than the victim. RE has two other children from other relationships.
9 You and RE separated in around 1999/2000. You then commenced a relationship with a Kim Nicole Bice (nee Jones). You had a child together who was born in October 2006 and you married Ms Bice on 15 March 2007.
10 You and Ms Bice lived at several addresses in the Melton area which were detailed in the prosecution opening. The offending against your daughter took place at these various addresses.
11 After the breakdown of your relationship with RE, you had access to the complainant and her brother every second weekend, collecting them from their mother on Fridays and returning them the following Sunday. This was a consensual arrangement as between yourself and RE.
Incidents of Offending
12 The victim disclosed the offending to her mother on 23 September 2010. However, this was not the first time that she had tried to tell her mother what you had been doing and I will return to this aspect in due course.
13 On 25 September 2010 and 30 November 2010, the complainant made VARE statements where she detailed the numerous forms of sexual activity which I have previously set out as being particulars of the charge laid against you.
14 The prosecution alleges that the eight particularised incidents of sexual abuse of your daughter by you, took place in the context of ongoing and persistent sexual abuse which occurred on most of the weekends that she and her younger brother stayed with you for the purposes of access.
Incident One
15 When the complainant was about four years old, she and her younger brother were watching movies with you in the caravan where you lived at the time.
16 The complainant was under a blanket with you when you began tickling her side. You eventually moved your hands down her leg, inside her underpants and onto her vagina. You then cupped your daughter’s hand in yours and placed it on your penis. You directed her hand, rubbing it up and down your penis. The complainant acquiesced in this as she was concerned that you might be angry if she did not.
Incident Two
17 The complainant recalls that she tried to tell her mother on one occasion before disclosing to her on 23 September 2010. This occurred when she was about four years old and felt your penis touch her on the bottom when she was in bed with you. The complainant’s mother, RE, confronted you at that time.
However, you later called the complainant and threatened to hurt her if she told her mother again, which caused her to become “really scared”. Whilst it was not clear as to whether your threat to harm the complainant was in a physical sense or other, it was conceded by your counsel that you certainly engaged in emotional blackmail towards your child, and that your threat to harm her, although not to physically harm her, resulted in your child’s silence which was born of fear. I will return to that matter in due course.
18 In relation to the disclosure at that time, RE recalls this. She said in her police statement:
“… an incident I recall when K was four years old in 2001…K told me that while she was at her Daddy’s she felt something hard and wet at her bottom, like it was trying to get in…I spoke to Martin about it and he denied it happened…Martin came and spoke to K about this in my presence shortly after. Martin was angry and forceful towards her and was saying that if she went around saying things like that he would go to gaol and she wouldn’t see him again.”
19 Your then wife, Kim Bice, also recalled this disclosure, saying that you were crying when you told her about it and you told her that it was absurd and that you and RE had agreed that K must have “picked it up at school and it would go away.”
Incident Three
20 When KR was around six or seven years old, you got her to put your penis in her mouth. You tried to do this on many occasions, even using chocolate topping on your penis in order to have the complainant comply. Your daughter continually refused, however on one occasion, she finally gave in and allowed you to put your penis in her mouth. She opened her mouth and put it over your penis. She said that your penis did not penetrate very far.
Incident Four
21 KR was at your house in Tudor Place, Melton West and was around eight years old or a little younger. You had been regularly attempting to penetrate her vagina with your penis. On this occasion, you removed the door handles to your bedroom as you had done on other occasions. You got on top of KR and began to rub your penis over her clitoris. You pushed your penis harder and harder until you were able to insert the tip of it into her vagina. You then pushed harder and your penis went into the complainant’s vagina. KR told you that this was hurting and you pulled it out. She remembers this occasion as being the first on which you penetrated her vagina with your penis. She said that you hurt her and that she was frightened. She complained to you of the pain that she was experiencing, but you told her that this was normal.
Incident Five
22 KR recalled an incident when she was holding the bars of the bed and was up against the bed head whilst you were “doing the penis and clitoris thing”. You then got on top of her and told her that if she let you “go inside (her)” then you would buy her a phone. KR refused and eventually you gave up. You kept rubbing her clitoris with your penis whilst you tried to persuade her to allow you to penetrate her vagina. This incident occurred when KR was about eight or nine years old.
Incident Six
23 When KR was eight or nine years old she recalls Kim Bice going to Sydney for work. She recalls that she was forced by you to sleep naked with you in her bed that night.
Incident Seven
24 When you were living at Tudor Place, KR recalls an incident occurring when she was older than seven years of age, but in her VARE, she indicated that she was unable to say how old she was. On this particular occasion you kept pushing your penis into her vagina trying to sexually penetrate her, and you managed to do so on a couple of occasions. In her VARE, she said that you kept pushing on the outside and trying to get in and that you slipped in a couple of times and it hurt.
25 You also penetrated KR’s vagina with your finger on this occasion and scratched her with your fingernail. She complained of the pain from this, but you told her to stop lying and trying to get out of it. She eventually pushed your hand away but this was hard because you kept trying to force your finger deeper into her vagina.
26 On two occasions, you had tried to anally penetrate KR. On this occasion you told her that she should let you go inside her bottom because it would not hurt as much. She said no to this and asked “what about my poo?”, but you said not to worry.
27 You penetrated her with your penis. KR was not sure how far it went in. She said that this felt uncomfortable and weird and told you to take it out, which you did. However, you persisted a couple more times in a bid to anally penetrate her. Whilst you were doing this, you told KR to just sit still and that she should trust you when you said it would become more comfortable.
Incident Eight
28 KR recalls that when she was thirteen years of age, in about August or September 2010, she was craving a Subway sandwich to eat. She asked you if she could have one and you said to give you a kiss, which she did. You then told her to come to your room. In your room, you got on top of her and rubbed her clitoris with your finger, saying to her, “How can you not want me to do this?” On this occasion, you tried a number of times to penetrate KR’s vagina with your penis. She told you to stop and you agreed, she said “just to go over the top”. You then masturbated your penis and ejaculated in KR’s presence. You gave KR $50 to go to Subway. I make the comment that effectively, you treated your own daughter like a prostitute – but worse than this, you were prepared to exploit material need that she had in order to self gratify, knowing that your daughter was anything but a willing participant and knowing that what you were doing was repugnant and wrong. I will come to this aspect a little later on, as well.
Re disclosure of offending and record of interview and plea of guilty that ensued
29 KR told her mother about your abuse towards her (for the second time – the first being when she was four). But the second disclosure which gave then rise to the record of interview and ultimate plea by you, took place on 23 September 2010. She said that your offending had been happening since Prep and said:
“It wasn’t happening every weekend or second weekend but over the years it had blurred because it happened more times than she could remember”.
30 RE took KR to the police station on 25 September 2010.
31 On Saturday 25 September 2010, police and the Department of Human Services (‘DHS”) attended your home. DHS required Ms Bice to place your son Ethan in a safe environment, away from you.
32 Ms Bice confronted you about what was happening and you admitted to having abused your daughter. You said that you did not have sex with her, which Ms Bice took to mean full intercourse, and you told her that KR thought, “It was special and fun”. As aforesaid, you knew very well that you had been having sex with your daughter for many years and that your daughter had continually resisted your advances. At this stage, you did not show much in the way of genuine remorse, although you did have the relative decency to admit that you had been abusing your daughter.
33 Ms Bice advised you to go voluntarily to the police because it was both the right thing to do and because it was in your own interests to be honest from the outset. You went to the police, but you decided that you should not speak to them until receiving legal advice. Whilst this was your right,-that is, receiving legal advice before speaking with police, your remorse and sense of what was right are not demonstrated by this course at this particular stage.
34 You rang KR on 26 September 2010 and her phone was answered by her older step-brother, Michael. He confronted you. You cried and said you were sorry. You asked him to tell your daughter that you were sorry. You were interviewed by police on 6 December 2010 and gave a “no comment” record of interview. Again, this shows that as at 6 December 2010, you were not prepared to be forthright about the matter in so far as the police were concerned, notwithstanding that you were entitled to exercise your right to make a “no comment” record of interview.
35 You pleaded guilty to the present charge on 22 July 2011 at committal case conference. You were arraigned and pleaded guilty in this Court on 3 August 2011.
Relevant criminal history
36 In terms of criminal history you have a prior conviction for possessing child pornography. Some of the movie titles found by police on the occasion of this offending which were found on your computer were “Incest Kiddy Rape”, “Seven Year Old Girl Kiddy Porn” and “Dog Cums in Ten Year Old”.
37 This conviction was recorded on 7 March 2005 and you were sentenced to six months’ imprisonment wholly suspended for eighteen months. You were registered as a sex offender for eight years from that date.
38 Therefore this conviction was recorded half-way through your offending which is the subject of the current charge. You continued to sexually abuse your daughter, having come before the courts for a relevant matter and during the currency of a wholly suspended sentence. You continued offending against her whilst reporting to police as a sex offender and I'll come to this matter again later on in the sentence.
39 On your behalf, Mr Trood quite sensibly acknowledged the seriousness of your offending and conceded that a significant term of imprisonment was warranted. He conceded that your offending conduct was persistent, having occurred on “Many, many occasions…”, however, pointed to one period when KR had said that you had not offended against her for about four months when Kim Bice’s father came to live with you from December 2004 to about March 2005. He relied upon KR’s first remark to her mother in respect of frequency, which was referred to in the course of the opening where she said that it was not every second weekend that the offending occurred, but that over the years it blurred because it happened more times than she could remember.
40 However, with these qualifications, Mr Trood accepted that your behaviour was persistent over the time and although the exact frequency could not be established, there was one period where it was not occurring for a period of about four months because of KR's father being in the household. In this regard, he conceded that probably the reason for you not engaging in such conduct, was that there was not the opportunity due to an additional person being in the house.
41 Mr Trood further submitted that in respect to three out of the four types of penetrative behaviours engaged in by you:
“Less than full penetration occurs and it would appear that full penetration or to any great extent does not occur on a significantly large number of occasions.”
42 He said that the tenor of KR’s allegations were that you certainly made many attempts at full penetration but for a number of reasons, these were largely unsuccessful and he conceded that this would appear to be mainly due to KR’s efforts. He took me to a number of depositional references in this regard and I accept that this was the situation save that I accept the learned prosecutor’s submission that your penis fully penetrated the complainant’s vagina on the occasion referred to in her second VARE at Answer 68, which is the basis for Incident Four listed in the opening.
43 In respect of digital penetration, Mr Trood conceded that full penetration was achieved.
44 Therefore, I sentence you on the basis that on a majority of occasions that you sought to insert your penis in the mouth, vagina, or anus of your daughter, full penetration was not achieved which was largely due to the fact that the complainant resisted you.
45 However, when assessing the seriousness of your offending, I take these matters into account. Even doing so, I regard your offending as extremely serious and approaching the worst category. You have persistently sexually abused your daughter from when she was the most tender age of four until she attained the age of thirteen years and there are a number of aggravating features of your offending to which I shall refer shortly.
46 The maximum penalty of twenty‑five years for the offence which you have committed reflects the seriousness with which the offending is regarded. As the Court of Appeal held in DPP v DDJ (2009) 22 VR 444 at paragraph 36:
“As this court has stated repeatedly, sexual offending against children is a matter of the utmost seriousness. The maximum penalty of 25 years for the offence of maintaining a sexual relationship with a child under the age of 16 reflects the gravity with which the community views sexual crimes against children.”
47 The Court of Appeal then went on to refer to extracts from a number of judgments which make it clear that offending such as yours calls for condign punishment and for any sentence imposed to give effect to specific and general deterrence. One of those cases referred to by the Court of Appeal in DDJ was R v WEF [1998] 2 VR 385 at 387 where the then Winneke P said:
“This court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.”
48 In DDJ, the Court also referred to what Vincent JA, as he then was, said in DDP v Toomey [2006] VSCA 90. The victims of sexual offences in that case were a number of young boys, but the remarks made by Vincent JA are indeed relevant to your offending. He said:
“In the present context, there should be no doubt in the mind of any reasonable person that conduct of the kind with which we are here concerned will be regarded as extremely serious, not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally. I need only refer to the changes which have been made to the law and the structures that have been put in place to reduce the risks to children to make this point. The exposure over recent years of the extent of the incidence of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them.
49 He went on to say:
"The second comment that I wish to make addresses a different aspect. On occasions, when imposing sentence I have made mention of the notion of social rehabilitation. In DPP v DJK [2003] VSCA 109 at paragraph 18 I remarked:
‘This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.’
50 Vincent JA went on to say:
"It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.”
51 In DDJ, the Court of Appeal stated that what was said by Vincent JA in the passages referred to above had equal force to the case with which they were dealing. In your case, these passages are just as pertinent.
52 The aggravating features of your offending are as follows:
53 First, the lengthy duration of offending.
54 Second, the tender age of your victim, especially in the earlier years of your offending. The other aspect of this is the significant age difference between the victim and yourself.
55 Third, the gross breach of trust in respect of the complainant and in respect of the complainant’s mother. Your daughter was someone who should have been able to look to you as a father and as someone who would protect her. You were the antithesis of this and grossly breached her trust in you. Rather than being her protector, you were someone who she needed protection from.
56 Fourth, the threat that you made to the child when she was four years old and your lies to her mother and Ms Bice in this regard. By dealing with your child in this way, you enforced her silence, presenting her as someone who was not to be trusted and could not be believed. Moreover, having achieved this dire result, you chose to continue to offend against her until she was thirteen years old, having orchestrated her silence. The other aspect of such conduct is that despite you being put on notice that others were aware of allegations of sexual wrongdoing toward your daughter, you did not have the least decency in stopping or even attempting to stop what you were doing to her. Rather, you continued to offend against her in circumstances where she continually made it plain to you that what you were doing was abjectly wrong, as she continually protested against your conduct.
57 Of course, even if she had not behaved in this way, your conduct was abjectly wrong, but the fact that she continually protested must have signalled to you that you were not only sexually abusing your daughter, but that you were doing so against her will on a persistent basis. I note with alarm that when Ms Bice first confronted you about your conduct, you told her that your daughter thought, “It was special and fun”. Her constant protests must have told you otherwise.
58 The fifth aggravating feature is that you continued to offend after coming before the Courts and being sentenced for possessing child pornography, and whilst undergoing a suspended sentence and reporting as a sex offender; this is one of the matters which gives me grave cause for concern in terms of your prospects of rehabilitation and will impact upon the weight which I give to specific deterrence.
59 Further, you were subject to an adjourned undertaking for twelve months from 4 December 2001; this undertaking was therefore on foot during the period of your offending. The prosecution did not press so much that this aggravated your offending; but it is another example of you disregarding the law and any sense of responsibility you ought to have from undertaking to the Court to be of good behaviour.
60 The sixth aggravating feature is the manipulative, coercive behaviour in which you engaged in order to ensure you could perform various sexual acts upon your daughter. Tied in with this was the fact that you offended against her repeatedly, despite the fact that she constantly protested. The prosecutor did not rely on grooming in this case, as it was said the complainant’s resistance to your conduct had not allowed for this to take place and so I do not sentence you on the basis that you groomed the complainant.
61 The seventh aggravating factor that the Crown relied on was the fact that you engaged in unprotected vaginal penetration, exposing the complainant to the risk of sexually transmitted disease and pregnancy.
62 Mr Trood accepted that all of these aggravating features were present, save that he refuted that unprotected sexual intercourse amounted to an aggravating feature in all the circumstances. Ms Hassan for the Crown acknowledged that it was not alleged that you ever ejaculated in the complainant’s vagina, but did submit that the aggravating feature of engaging in acts of unprotected sex was made out.
63 It was put by the learned prosecutor that a failure to wear a condom on any of the occasions of penile penetration of the complainant’s vagina exposed her to the risk of pregnancy and sexually transmitted disease. Mr Trood, on your behalf, submitted that as pregnancy had not eventuated and there was no evidence that you had a sexually transmitted disease on any of the occasions in question, I ought not treat such conduct as an aggravating feature.
64 It would appear to me that the fact that the complainant did not become pregnant in the circumstances of this case where she was beset by your persistent acts of sexual penetration, notwithstanding that full penetration was only achieved on one occasion and there was no ejaculation into her vagina but notwithstanding that this was more to do with good luck than good management on your part. I am satisfied beyond reasonable doubt that your preparedness to engage in such activity and subject the complainant to the risk of pregnancy - a risk which was very apparent to her, aggravates your moral culpability.
65 Further, your preparedness to engage in unprotected penile/vaginal sexual penetration with your daughter exposed her to a risk of sexually transmitted disease and again, aggravates your moral culpability. The fact of the matter is that at the time that you were subjecting the complainant to such sexual abuse, you may well have had a sexually transmitted disease which was not overtly apparent to you. Again, the fact that this was not the case appears to me to be more good fortune than good management on your part.
66 In R v Khem [2008] VSCA 136, Neave JA had this to say on the subject,
"It is clear that an offender’s failure to use a condom can be treated as an aggravating circumstance in cases where penile/vaginal penetration occurs".
Her Honour then footnoted previous authorities of R v Magner [2004] VSCA 202 at 63 and R v MMK [2005] NSW CCA 369 at 117].
Her Honour went on to say (referring to the case which actually dealt with an attempted penile penetration- no penetration was actually alleged):
"In my opinion Her Honour did not err in treating the failure to use a condom as an aggravating factor, in sentencing the appellant for attempted sexual penetration. If necessary, I would be prepared to take judicial notice of the fact that there is a risk that a number of sexually transmissible diseases, including genital herpes and genital warts, can be transmitted by genital contact falling short of penile penetration. There has been extensive community education on this issue.”
67 As I have said, in that case the appellant had pleaded guilty to attempted sexual penetration of a child under the age of sixteen which involved his penis coming into contact with the complainant’s vagina, but without achieving penetration. Although Ashley JA disagreed with Neave JA in respect of the weight to be given to such an aggravating feature in the context of a case where only attempted penetration took place, it does not appear that there was any disagreement that engaging in unprotected sexual penetration can amount to an aggravating feature.
68 In that case, as in your case, there was nothing to suggest that the appellant suffered from a sexually transmissible disease or had any belief that he possibly did suffer from one. Further, it appeared that the attempted sexual penetration had not in fact resulted in pregnancy, and it appears from the judgment of Ashley JA that this was not a risk in the circumstances of that case.
69 I return to the sentencing remarks of her Honour Neave JA, who was in the majority with Pagone AJA. She went on to say:
“However in any event I consider that Her Honour was entitled to give weight to the fact that the appellant carelessly took the risk that intercourse, if completed, would expose the victim, a 14 year old girl, to the risk of pregnancy or infection. The fact that he did not have intercourse with the victim, either because he was unable to do so or because he was interrupted, does not alter his moral culpability for his irresponsible act of attempting to penetrate the victim without using a condom.”
70 In the circumstances of your case I regard the fact that you engaged in unprotected sex, being penile vaginal sex with the complainant, as an aggravating feature, as you showed a complete disregard in exposing her to sexually transmitted disease; your conduct towards her in this regard when she came of an age that she might become pregnant, showed a complete disregard in respect of this, notwithstanding that, as good fortune might have it, you did not ejaculate in such circumstances.
Impact on the Victim
71 I take into account the impact on the victim which, needless to say, has been profound. Your daughter, who is now fourteen years old and who asked that her victim impact statement be read aloud to the Court, having declared it on 3 October 2011, said the following:
“These are my thoughts:
In my eyes it is worse than killing someone because they have to live with the pain.
I am sometimes depressed, sometimes the memories just come back and I sit there for hours.
I try to always be doing something so my mind can’t wander.
I wish he was more like a father to me. A normal dad and someone who is there for me all of the time.
I try to force what happened out of my mind so I wouldn’t think about it and now I forget everyday things too.
It started when I was quite young so I didn’t get the chance to know what life would be like without the abuse.
Even though he spoiled me it didn’t feel like it should when a parent buys stuff for a child. It should feel like it is out of kindness and that they love you but it didn’t. It felt like he was paying me.
I don’t like to go to bed at night, I like to be in bed but I don’t like going to bed. It is kind of confusing but that is exactly how I feel.
I don’t feel like I want to get up and face the day.
What happened with my dad didn’t only affect the relationship between me and him but the relationship between both my brothers and my mum.”
72 The complainant’s mother has also provided a victim impact statement which she also asked to be read aloud. RE expresses the guilt, shame and the grief that she has felt since her daughter most recently disclosed to her. She spoke of things now making sense in terms of her daughter’s behaviour in the past which had a disruptive impact on the family over the past ten years. She speaks of her daughter’s self-harming and suicide attempts, and KR’s bravely keeping a secret which cost her and her whole family more than words could ever express. She said, "So many memories and future plans have been or will be tainted by this crime.”
73 She says that she has had to watch the light slowly die in her daughter who has had to be forced to attend counselling in respect of her behaviour. This impacted on RE's day to day living and commitments before KR disclosed to her. However, she says that now it is even more difficult for them. She says that her son is now struggling at home and school because of the grief and anger that he has suffered as a result of these disclosures being made.
74 She speaks of the gradual deterioration of her daughter that she witnessed and that by the time her daughter reached grade four she had lost the ability to make friends, was suffering sleeplessness, and would constantly convey that she was feeling sick and sad. Ms RE says that KR finds life even harder now as she struggles to, “claw back her life" and that she now has friends but, "beats herself up emotionally when she fails to get up for school or for plans she has made with them.” As RE most eloquently puts it:
“This crime has taken KR's childhood from her and by doing so, my chance to know who she might have been and might have become.”
75 She goes on to speak about the resentment that her son experienced when the complainant was given gifts by you but he missed out. She speaks of the difficulties as between her daughter and son because of her daughter’s behavioural problems during the period of your offending against her. Each of her children, that is her daughter and son - your daughter and son- have now attended counselling and KR is undergoing a further assessment for further counselling and possibly medication. She says that her son and daughter are only now learning to bond.
76 Then RE spoke of her son, Michael, who regarded you as a father and was working with you at the time of the disclosure. She says that Michael had to quit his job and refuses counselling and he, too, is feeling guilty at not detecting your offending and for the lost years with his sister. RE who is also attending counselling in order to be strong enough to help her children through what she refers to as, "The pain, guilt, and grief we all feel”.
77 She feels that she betrayed her daughter, packing her off into your care and asking you to help with her behaviour during the period that you were offending against her. She is finding it most difficult to hear the things that you have done to her daughter and she says that KR suffers nightmares involving you several times a week.
78 RE lives with a painful medical condition, and KR has told her that one of the reasons she did not disclose to her any sooner, was because she did not want to add any further burden to her because of RE's poor health. RE says that her daughter’s explanation for not telling her sooner has caused her immeasurable pain and sense of guilt. She says that your offending has caused hurt beyond words to her family and she spends her days trying to pick up the pieces and survive. She expresses determination that she and her family will get through this ordeal, saying, "We may heal, but the scars from this will never fade.”
79 Mr Bice, these are the very real and devastating consequences of your actions. In sentencing you, I take into account the impact upon the victim and the impact it has had on her mother and siblings as described by RE. Your offending demands condign punishment and strong denunciation. I regard your offending as approaching the worst category of offences of this kind.
Remorse
80 In your favour, I take into account the fact that you entered a plea of guilty at an early stage which has spared the witnesses, particularly the complainant, the trauma and trouble of giving evidence in contested proceedings, and you have saved the community the time and expense of running such proceedings. On your behalf, Mr Trood accepted that although you were not willing to take full responsibility for your actions at first, this is ultimately what you have done.
81 After the police approached Ms Bice, following the complainant’s disclosures, she determined to take you to the police station, as I previously said, not only in order to facilitate justice, according to her, but also because she perceived that you were a risk to yourself if you remained in the community. When you attended the police station, Ms Bice advised the police that you had made admissions to her and a CAT team was called to assess you to determine suicide risk. The CAT team determined that you were not in need of hospitalisation, and you actually went back to work the following week, I was told.
82 In your case, although your expression of remorse was not immediate, I am prepared to find that this was manifested in the phone call you sought to make to your daughter to apologise, and the various text messages which you sent in the days following her disclosure to ensure that your relatives knew that your daughter was telling the truth.
83 Your plea of guilty to this most serious offence and acceptance of what your daughter has reported about your offending, together with an acceptance that you are deserving of a significant sentence, all indicate to me that you are genuinely remorseful for your actions, and as Dr Sullivan has pointed out, you are prepared to take full responsibility for them.
84 In this regard, I also take into account the evidence of your employer, Mr Kennedy, as to your behaviour and preparedness to discuss matters after your daughter disclosed the allegations in recent times. He said that he found out about your offending on the night that your daughter made the disclosures. He said that at that stage your emotional and mental state were “pretty grim” and that he spent a lot of time with you. He was concerned about your mental state and found you on the floor in a foetal position shortly after the disclosures had been made.
85 He had spoken with you on a daily basis in respect of your offending since the time you disclosed to him. He said that you are now of the belief that you have done something seriously wrong, and that your view was that you needed to be punished for this. He said that you had expressed to him the hope that the course you have now taken will give some finality for everyone, and may assist your daughter and her family to move on.
Background
86 I take into account your background. As a child, you experienced tremendous difficulties, as did your siblings and father, because of your mother’s schizophrenia. She subjected you and other members of your family to dreadful violence and threats of violence throughout your childhood, up until you were fifteen or sixteen years old. In his report, Mr Newport, psychologist, refers to the fact that you lived with next door neighbours for the first two years of your life because of your father’s fears concerning your mother looking after you.
87 Mr Kennedy, who also employed your father and has had an association with your family for forty years, attested to the accuracy of a number of these matters concerning your mother. He has been a tremendously supportive person in your life and that of your family, beyond that which might be expected of an employer. He attested to the fact that on numerous occasions when your father was at work, your mother would ring in an angry state and cause a great deal of commotion.
88 Your mother’s behaviour was erratic, and must have been terribly hurtful and confusing to you as you grew up. Her behaviour culminated in your father attempting suicide at one stage, and impacted on your ability to effectively function at school. You failed Prep at Melton West Primary School and experienced interrupted schooling over the years, and at one stage you had to live with another relative because of your mother’s illness. She was hospitalised for various periods throughout your childhood.
89 You attended Melton Secondary College but had to repeat grade seven, having failed all subjects except music. You left school at the age of fourteen years because of such a chaotic and distressing life at home. One minute your mother would be affectionate towards you and the next she would act aggressively or violently towards you. Graphic examples of these are detailed in the reports of Dr Danny Sullivan, consultant psychiatrist and Bruce Newport, psychologist. I was told that there was a standing arrangement that your family had, which was to call your father when your mother was behaving in a concerning way, so that he would come home from work immediately to deal with the situation.
90 You have three siblings. Unfortunately one of your brothers committed suicide in 2010.
91 When you were fifteen or sixteen years old, you left home and lived with friends from then on. This enabled you to remove yourself from the chaotic and distressing life which you faced at home.
92 Notwithstanding these difficulties, you found some work in a sheet metal business for three months when aged sixteen, then embarked on various unskilled labouring jobs in between bouts of unemployment. In about 1994, when you were aged nineteen, you went to work for J H Farrer which is the sheet metal company run by Mr Kennedy and his family. Your father was already working at this business.
93 You joined as an unskilled worker and have continued to work with the company for seventeen years. In that time, you have had the benefit of job training and have progressed to a position of significant responsibility in this small family company. Before your remand for this matter, you were a supervisor at the company, overseeing five employees.
94 The nature of your work involves the use of computers and very expensive equipment, and you are regarded very well by the members of that company, as attested to by Mr Kennedy. He said that you had been a very loyal person to the company and that nothing had ever been too much trouble in terms of your work. He said that he would look to re-employ you upon your release from gaol.
95 When cross-examined by the learned prosecutor, Mr Kennedy acknowledged that your step son had left his job as he did not want to be employed alongside you. Mr Kennedy knew about your previous offending concerning possession of child pornography. Notwithstanding these matters, Mr Kennedy was prepared to come to Court to support you, indicating that you probably had, “Not been dealt the best of cards” in life.
96 After disclosing your offending to Mr Kennedy and having had to leave Ms Bice, following disclosure to her, Mr Kennedy arranged for you to obtain alternative accommodation.
97 You have been able to develop a new relationship and married in late 2010. You are indeed fortunate to have the support of Mr Kennedy, and I also note that you have the support of your wife- that is, your new wife, and some other family members, who were present in Court upon the hearing of your plea.
98 I take into account the contents of the reports of Bruce Newport, psychologist, and Dr Danny Sullivan, psychiatrist.
99 Mr Newport provided a report dated 24 August 2011, indicating that you had consulted with him on twenty five occasions from 6 October 2010 until the date of the report. Each consultation was of one hour duration. Mr Newport indicates that the circumstances, “In which (you have) found yourself have been extremely difficult for you".
100 I just want to make it perfectly clear Mr Bice that these are not circumstances in which you have found yourself, but they are circumstances of your own making. However, Mr Newport indicates that you reached a point where you attempted suicide and were hospitalised in early January. He said that the role of your mother in the distortion of your psychological and social development have been crucial. He recounted an example of a dreadful incident which you experienced at the hands of your mother when you were about eight years old. He said that further exploration and treatment was warranted in respect of the impact that your mother’s behaviour had upon you psychological and social development.
101 He records that when he first saw you, whilst you knew that your behaviour which is the basis of the charge was not acceptable, you did not fully comprehend the significance of your actions. Apparently, you had a moment of realisation in counselling where you realised that you had breached the trust of your daughter in the way that your mother had breached your trust in her. The difference between you and your mother is that she was mentally ill, however, there is nothing which indicates that you suffer from any impairment of mental function in the way that she did.
102 Mr Newport reports that you have turned deep remorse into a positive and were doing, "An extraordinarily good job of trying to rectify the harm that he has done in his family and to the community". He does not go into the details of this however, I expect this has to do with your endeavours to ensure that family members knew your daughter was speaking the truth and your preparedness to take responsibility for your actions to which I have previously referred.
103 Dr Danny Sullivan, consultant psychiatrist, assessed you on 26 August 2011. After taking a comprehensive history with respect to your background, he noted your admission to hospital as a voluntary patient while suicidal after being charged for this offending. You acknowledged significant depression in the past, and depressive symptoms as a teenager, where there was one occasion where you cut your wrists although you did not clearly intend to kill yourself. You had once taken an overdose of Serapax which required hospital admission.
104 You said that you previously consulted with Dr Lester Walton, forensic psychiatrist, in respect to your previous offence but said that you were untruthful with him, minimising the underlying basis for your offending on that occasion. When speaking with Dr Sullivan he reported your mood as being adequate and there was no history of psychotic symptoms or clinically significant anxiety.
105 When speaking with Dr Sullivan you referred to your offending against your daughter as, “A massive fuck up” which you said had commenced soon after you and the complainant's mother had separated. You reported that, in retrospect, you had mistaken the complainant’s amusement at being touched in the genital region as being associated with her pleasure, and said that at the time you thought you were doing the right thing.
106 You acknowledged a sexual attraction to children and also the effect of using pornography upon your broadened sexual interests. You said that your engagement with Mr Newport had touched on emotional issues around six months ago, and that you had begun to appreciate the wrongfulness of your behaviour and were increasingly able to appreciate the child’s experience of your offending and your betrayal of her trust.
107 I pause here to observe that in light of the fact that you threatened your daughter not to speak when she was four years old for fear that you would go to gaol, and notwithstanding your prior conviction, it beggars belief that you did not appreciate the wrongfulness of your behaviour. Moreover, according to the opening which you have accepted, your child was constantly attempting to thwart and avoid your abject intentions, which she made clear to you.
108 Therefore, it beggars belief that you would have ever thought that what you were doing to her was amusing from her point of view or gave her pleasure. In this regard, I take account of Dr Danny Sullivan’s explanation that people in your position often attempt to rationalise their behaviour in ways such as you have, in order to continue to offend and live with yourself; however, I do note with some concern what you told him in relation to your observations of your daughter in this regard.
109 You have never abused alcohol or drugs to any significant extent, and not in recent times.
110 Dr Sullivan refers to information from other sources including Eastern Health, which details an admission to the psychiatric unit from 5 January to 9 January 2011, as a voluntary patient. You were diagnosed as suffering a situational crisis with suicidal ideation. You had overdosed the preceding day on thirteen Panadeine tablets. You related your distress to the charges you are facing and conditions preventing you from seeing your children.
111 Dr Sullivan found that you were apparently candid with him and possessed no delusional beliefs. You had no deliberate self-harm ideation or suicidality, current or past. You appeared to be of normal intellect and acknowledged wrong-doing and sexual arousal to children.
112 Dr Sullivan indicated that your mother’s behaviour during your childhood had a significant impact upon your attendance at school, and that you were frequently required to care for your mother rather than attend school. In addition to experiencing maternal violence, you reported sexual abuse by an older boy not known to you, and some emotional neglect. This matter does not appear to feature in any consultation with Mr Newport, which is somewhat surprising.
113 Dr Sullivan said that your current mental state was stable and that you had no indication of significant cognitive impairment, gross personality disorder or substance abuse problem. He said that you were now able to acknowledge that you do have a sexual attraction to female children, although not exclusively, and that this was an area which would require therapeutic work.
114 He recommended that you be assessed for the Sex Offender Program, and that given your progress in psychological treatment with Mr Newport, you are likely to have a good outcome from treatment and appeared amenable to both undergoing treatment and accepting responsibility for your behaviour. He observed that you appeared to be able to sustain positive adult relationships and otherwise had relative psychosocial stability, including employment and a range of interests. These are considered good indicators for your prognosis.
115 Dr Sullivan said that the apparent causes of your offending:
“May be related to a desire to be liked and the use of sexual arousal as a mood elevating strategy.”
116 I must say that in the context of your child continually resisting your advances I am unsure as to the validity of this aspect of Dr Sullivan’s conclusion. In any event, it is offered as a possible explanation more than anything else. It also concerns me that such a possible explanation is given in the context of your prior matter for child pornography.
117 Insofar as your childhood difficulties are concerned, Dr Sullivan said:
“While it is tempting to focus upon his experiences of childhood abuse as somehow causally related, it still seems that the most salient issue in the current offences remains paedophilic arousal.”
118 He remarked that you were unusually open to acceptance of responsibility with a capacity to reflect upon the wrongfulness of what you have done, and that as you were amenable to treatment, your prognosis would be significantly improved.
119 Dr Sullivan was called to give evidence at your plea and adopted the contents of his report which was tendered on the plea. In essence, he confirmed the matters contained in his report, saying that you had demonstrated an unusual acceptance of responsibility and did not quibble in respect of any detail, in contrast to others in your position. He said that your preparedness to accept responsibility was a good indicator that you had already progressed because of treatment administered by Mr Newport.
120 He remarked that your comment to Ms Bice soon after your daughter’s disclosure that KR thought that what you were doing was, “special and fun”, was a typical cognitive distortion of someone in your position. He said that it was very common that in sexual offending, explanations such as this were given which allowed a person such as you to harm another without any self-reproach. He said that the stage that you had reached in accepting responsibility was a stage which might be achieved in others after many weeks of treatment.
121 When cross-examined, Dr Sullivan acknowledged that you had never voluntarily received any counselling or treatment before your offending came to light. After the learned prosecutor took Dr Sullivan through your prior conviction, and referred to your persuasion of RE to support him after your daughter had disclosed when she was four years old, Dr Sullivan acknowledged that you had exhibited a pattern of deceitful behaviour in the past. He said that you were still in need of treatment and that future professionals would have to be on their guard against you deceiving them in future as you had done with Dr Walton.
122 In terms of your remorse, Dr Sullivan said that you certainly regretted the consequences of your actions for a range of people, including yourself. He said that you had indicated to him that you believed that going to gaol was appropriate and was something that you needed to do in order to demonstrate your “penance” for your offending. He believed that your distress at being caught had arisen because it had been accompanied by a subsequent realisation and development of an understanding of just how “egregiously wrong your behaviour had been”.
123 He said that now you were in a position where you had, “nowhere to run” and that you were clearly going to receive treatment. He said that treaters were aware of your potential for deceit and would have available to them a protracted period of time over which a treatment program can occur.
124 He said that in this situation, the time for any advantage gained by deception or self-deception has ended for you. When I asked Dr Sullivan what his view was concerning your prognosis in terms of your underlying propensities concerning children, he said that:
“A lot of people would regard those as demonstrating an ongoing propensity. But in treatment terms they’re simply one of the elements associated with offending. And interestingly, they’re one of the elements which is perhaps most responsive to treatment…”
125 He went on to say that there were a range of psychological and medical strategies which could reduce the level of this arousal. In addition, there were a range of supervisory mechanisms put in place such as the Sex Offender Register, and circles of support which are developed as part of the Sex Offender Program to ensure people know about this.
126 He said that in your case, your ability to tell others that you had sexually offended against your daughter boded well for you, in that you would have the potential to be supported upon your release by a range of people aware of your offences, and who would work with you to prevent this from occurring again. Dr Sullivan said that there were relatively good prognostic factors in your case in so far as one could say at this stage. However, Dr Sullivan confirmed that there was no impairment of mental function which was linked to any of your offending.
127 He said that your ability to form intimate relationships with adults was protective in the sense that you had the capacity to form an emotional bond. The fact that you were in an adult relationship at the time of a good deal of your offending, if not all of it, was protective in the sense that there was an emotional bond which provided support for you. He said:
“The issue is that in this case Mr Bice clearly had a sexual arousal to children which was present over some time, and that occurred outside the context of his relationship.”
128 Whilst there are some good prognostic factors in your case as detailed by Dr Sullivan, especially your acceptance of responsibility, level of insight into your offending, acceptance of need for further treatment and supports in the community, I must weigh these matters against the fact that you have a prior conviction for possession of child pornography, an attraction towards children, that you have offended against your daughter over such a significant period of time, and that despite your daughter’s disclosure when she was four and your dealings with the Court in 2005, you continued to offend against her. In balancing all relevant considerations, I regard your prospects of rehabilitation as fair at best.
129 You have no impairment of mental function as I have said which would moderate your moral culpability nor reduce specific or general deterrence, and you are of normal intelligence. Therefore, I regard your moral culpability as extremely high as I have previously indicated. I place not insignificant weight on specific deterrence in view of the duration of the offending, your actions when your daughter disclosed when she was four, and your relevant prior conviction for child pornography. I also attach significant weight to general deterrence.
130 In summarising the matters in your favour, Mr Trood relied on the following:
(1)your early indication of willingness to plead guilty and your entry of a plea of guilty at the earliest practical stage;
(2)your significant remorse and level of insight as well as your acceptance of responsibility;
(3)your preparedness to address matters concerning you in a meaningful way by attending upon a psychologist within fourteen days of matters coming to light, and your acknowledgement that ongoing treatment is required in gaol; and
(4)the support of your family and employer.
131 The sentencing range proffered by the Crown was a head sentence of between eight to ten years with a non-parole period of six to eight years. Mr Trood submitted that in your case a significant gap was warranted between the head sentence and non-parole period. He submitted that the range given by the Crown was a little high and did not allow for a greater gap between head sentence and non-parole period, which he said was warranted.
132 I put Mr Trood on notice that I might take the view that the range proffered by the Crown was lenient in all the circumstances of your case. Mr Trood then made submissions indicating that sentencing practice would support the range that had been given by the Crown. He took me to the case of R v GMT [2006] VSCA 13, indicating that this was not a dissimilar case. That was a case of maintaining a sexual relationship with a child under the age of sixteen years where the appellant had sexually abused his daughter since she was aged three. The appellant had appealed against a sentence of nine years’ imprisonment with a non-parole period of six years.
133 The offending in that case lasted until the complainant was aged ten or eleven and therefore endured for eight or nine years. In that case, however, the offence of maintaining a sexual relationship with a child under the age of sixteen years had come into being after the offending had commenced ,and therefore, the period of charged offending in fact covered approximately six years, nine months. One of the grounds of appeal was that the sentence was manifestly excessive. There was complaint by the appellant that the learned sentencing judge had sentenced on the basis of offending for the entire period rather than the charged dates.
134 Charles JA, with whom the Court agreed, held that there was nothing in the reasons for sentence which indicated that the sentencing judge had included a component for the sexual abuse which occurred before 5 August 1991. The sexual relationship was acted upon more frequently when the complainant was younger and involved various different sexual acts occurring several times per week and at other times once a month.
135 The appellant subjected his daughter to pornographic material and would require his daughter to mimic some of the pornographic behaviours. The appellant would make the complainant perform oral sex upon him or fondle his penis and he would perform oral sex on her and touch her vagina and breasts. He would also make her engage in other kinds of sexually provocative behaviour and became angry if the complainant did not appear to be enjoying herself. He also required her to masturbate herself and he would masturbate himself in front of her. It would appear that the only penetrative conduct was in the nature of oral penetration, previously referred to.
136 The appellant’s prognosis was not portrayed in as positive terms as yours by his psychiatrist and psychologist although he was said by his psychiatrist to have a good chance of avoiding further offences; however, he did not appear to have an advanced level of insight or acceptance of responsibility, which caused the learned sentencing judge some unease. In the Court of Appeal Charles JA said that it was important for the sentencing judge to consider the overall facts in context, including when the offending had begun, having regard to other matters relied upon by the appellant in the case.
137 When closely examined, this decision then reflects that a sentence imposed of nine years’ imprisonment with a non-parole period of six years, was not manifestly excessive in respect of the offending in that case which spanned approximately six years and nine months and involved one form of penetrative activity.
138 In DPP v DDJ [2009] VSCA 115, the Director of Public Prosecutions successfully appealed against a sentence of five years’ imprisonment in respect of maintaining a sexual relationship with a child under the age of sixteen years, with the Court of Appeal increasing this to seven years’ imprisonment, after allowing for double jeopardy. That relationship endured for five months although sexual activity was performed on a near daily basis. The sexual acts comprised kissing, penile penetration, oral sex and masturbation. The sentence for producing child pornography, which concerned the complainant, was also increased on appeal. DDJ had a relevant prior conviction of indecent assault with aggravating circumstances where he had been sentenced to two years’ imprisonment.
139 Although the circumstances of the offending in that case are somewhat different from those in yours, the Court of Appeal took the opportunity to examine a number of cases of maintaining a sexual relationship with a child under the age of sixteen years. The Court observed that there was a significant variation in sentences for this offence, but that a sentence of above ten years was, “quite exceptional” [paragraph 63].
140 The Court observed that in a table which was provided, and contained some details of sentences imposed in 2007 and 2008, there were only two sentences of ten years and one sentence of more than ten years. The median sentence in 2007 was 7.5 and in 2008 was five years and this was also the median over the period from 2001 to 2006. However, in 2007, six out of seven sentences exceeded five years and in 2008 only three sentences out of eleven exceeded five years. The Court of Appeal held that, judged by current sentencing standards, the sentence which had been imposed on DDJ was manifestly inadequate, and the aggravating features in that case were such that it was considered a very serious instance of this serious offence and I refer to paragraphs 63-64.
141 Having observed that sentencing practice as at that time was inadequate, the Court of Appeal was not prepared to disregard current sentencing practice, as DDJ had entered a plea on the basis that this would be observed. Of course, in your case Mr Bice, I am also guided by current sentencing practice, and can pay no heed to the Court’s observations concerning their inadequacy in the past. You have entered a plea to this charge on the basis that such practice will be observed and it would be wrong of me not to.
142 Having regard to the table which was included as part of that decision, I observe that in none of the cases where the victim’s age is indicated, is the age of the victim nearly as tender as your victim when offending commences, and that of the periods of relationships noted, the closest which comes to that in your case is eight years, where the offender maintained a sexual relationship with his daughter for that period. In that case, he was sentenced to ten years’ imprisonment with a non-parole period of eight years. There is no mention as to the age of the complainant when this offending commenced or finished.
143 I also have regard to the Sentencing Snapshot statistics and allow for the fact that every case is different, with its own attendant circumstances and aggravating and mitigating factors.
144 I have also had regard to the more recent case of DPP v DZ [2009] VSCA 301. Without reciting the facts in that case I note that the offending occurred over a total period of three years nine months and concerned abysmal acts being performed on three children variously aged between 11 and 15 in respective of the first victim, 11 and 13 in respect of the second victim and the third child was subjected to abuse when ten years old.
145 Penetrative acts and other sexual acts were accompanied by threats of force and coercion on a persistent basis. The respondent in that case made a pornographic video of one of the children. The respondent was in the role of stepfather to the children who had suffered devastating effects.
146 On a Directors Appeal, and allowing for double jeopardy the Court of Appeal re-sentenced the offender to eight years, six and a half years and six years respectively concerning each of the charges of maintaining a sexual relationship, one of which concerned each of the complainants. The Court indicated that but for double jeopardy the sentences would have been even higher. This was in circumstances where it was submitted by defence that the offender was remorseful, had pleaded guilty and was said to have good prospects of rehabilitation.
147 Mr Bice, in the end, having come to the view that your offending approaches the worst category of offending for an offence of this type, in all the circumstances, I regard the range proffered by the Crown as of assistance but falling short of a range which is appropriate in your case. The duration of the offending together with all its aggravating features and the weight which must be placed on all relevant sentencing considerations puts it towards the most serious end of the sentencing range for offences of this type.
148 Applying current sentencing practice insofar as I can, bearing in mind that no two cases are alike, and taking into account all other relevant considerations, including the maximum penalty, I am of the view that a period of imprisonment exceeding the Crown’s range is in order in your case. Further, in order to do justice to all sentencing considerations I am of the view that the gap between the head sentence and non-parole period should be somewhat smaller than what might ordinarily be the case. Would you please stand up Mr Bice?
149 I declare that you have served 21 days by way of pre-sentence detention which will be reckoned as already served.
150 In respect of the charge of maintaining a sexual relationship with a child under the age of sixteen years, you are convicted and sentenced to 12 years’ imprisonment with a non-parole period of nine years imprisonment.
151 If not for your plea of guilty I would have sentenced you to 16 years' imprisonment with a non-parole period of 12 years' imprisonment.
152 Are there any further matters counsel?
153 MS MAIKOUSIS: No Your Honour.
154 MR AZZOPARDI: No Your Honour.
155 HER HONOUR: Thank you. You may remove the prisoner. Yes we'll adjourn.
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