Director of Public Prosecutions v Bolten (a pseudonym)
[2025] VCC 258
•11 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| SAM BOLTEN (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 13 November 2024 and 20 February 2025 | |
DATE OF SENTENCE: | 11 March 2025 | |
CASE MAY BE CITED AS: | DPP v Bolten (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 258 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Guilty Plea – multiple charges of sexual penetration of a child or lineal descendant – three rolled up charges - supply of drug of dependence to a child – produce child abuse material – possess cannabis – serious sexual offender – sexual offending against biological daughter – prior convictions – cognitive impairment – psychological disorders – community protection – general and specific deterrence – just punishment – denunciation – application of Verdins and Bugmy principles
Legislation Cited: Sexual Offenders Registration Act 2004 (Vic); Crimes Act 1958 (Vic)
Cases Cited:DPP v Dalgliesh [2016] VSCA 148; Bugmy v The Queen [2013] HCA 37; R v Verdins & Ors [2007] VSCA 102
Sentence: 16 years’ and 10 months’ imprisonment with a non-parole period of 12 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin Ms O. Stevenson | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Connolly Mr J. Livy | Tyler Tipping & Woods Barristers and Solicitors |
HIS HONOUR:
1Sam Bolten,[1] you have pleaded guilty to one charge of supply of a drug of dependence to a child, eight charges of sexual penetration of a child or lineal descendant, one charge of produce child material and one charge of possession of cannabis. The maximum penalty for supply of drug of dependence to a child is 15 years' imprisonment. The maximum penalty for sexual penetration of a child or a lineal descendent is 25 years' imprisonment. The standard sentence is 10 years' imprisonment. It is a category 1 offence. The maximum penalty for producing child abuse material is 10 years' imprisonment. The maximum penalty for possessing cannabis is 5 penalty units.
[1] A pseudonym.
2The facts of your offences are comprehensively described in the Summary of Prosecution Opening, which was tendered at the plea hearing as Exhibit A. The facts of the case are as follows:
3The victim in this matter is your daughter, Claudia Bolten.[2] She was 16 years old at the time of the offending. She is your biological daughter.
[2] A pseudonym.
4In her early childhood, the victim lived with her mother, your ex-partner, and her siblings, also your biological children, interstate. She had no contact with you during that period. However, due to difficulties in her relationship with her mother, she moved to live with you in Moe in November 2021, aged 15.
5By the early part of 2022, you had begun encouraging her to use drugs with you and your friends, including cannabis, methylamphetamines and GHB. She had become aware of your drug use. She was initially reluctant, pretending to take drugs by hiding them in her pocket. When you found out she was doing this, you would become angry and yell at her.
Offences
6The first time you gave your daughter ice was when the two of you were living at your house in Moe. You took ice from a little 'saddie bag' and gave it to her. This is part of rolled-up Charge 1 – supply drug of dependence to a child.
7You began sexually offending against her in June 2022, at your residence in Moe. On the first occasion she was affected by alcohol. You asked her to give you a massage. She complied. You then began massaging her before directing her to lay on a mattress and you started touching her on her bottom and her thighs. She attempted to move your hands from her, but you continued to touch her. You then performed oral sex on her, before telling her to get on her hands and knees and you had sex with her from behind, penetrating her vagina with your penis. The two penetrations described constitute Charge 2 – sexual penetration of a child or lineal descendant, that is a rolled-up charge.
8In approximately July 2022, you and the victim became homeless. In the months that followed, the two of you slept at various motels in the Latrobe Valley area, staying with various acquaintances and occasionally sleeping rough. During this time, you gave the victim methamphetamines and GHB and began sexually offending against her frequently.
9On one occasion between July and September 2022, you took the victim to a bathroom near a primary school close to Traralgon Stadium, and injected methylamphetamines into her arm. You concealed the nature of your conduct by telling someone it was a diabetes injection. This is the second act which makes up Charge 1 – supply of drug of dependence to a child.
10On another occasion, you and the victim were travelling via train to Warragul or Drouin. You took the victim to the bathroom on the train where you both consumed methylamphetamine. You told the victim to kneel on the floor on her hands and knees. You penetrated her vagina with your penis. This incident lasted for approximately five minutes before you stopped when you arrived at the destination (Charge 3 – sexual penetration of a child or lineal descendant).
11On one occasion in Warragul, you and the victim got off a train. You took her into a disabled bathroom outside the train station. Inside the bathroom, you both took drugs. You then penetrated her mouth with your penis and testicles for about 10 minutes. (Charge 4 – sexual penetration of a child or lineal descendant).
12Sometimes you would stay with the victim at the Traralgon Motel. On one occasion, you made her put on lingerie that you had bought at a sex shop. The two of you consumed ice and GHB. You told her to kneel on her hands and knees on the bed facing away from you. You stood behind her and penetrated her vagina with your penis for about 10 minutes (Part of Charge 5 – sexual penetration of a child or lineal descendant). You told the victim to get on her knees and perform oral sex on you, which she did for about five minutes (Part of Charge 5 – sexual penetration of a child or lineal descendant). You then told her to get back on the bed on her hands and knees, which she did. You stood behind her and penetrated her anus with your penis for about 10 to 15 minutes. She pushed her head into the pillow. You ejaculated inside her (Part of Charge 5 – sexual penetration of a child or lineal descendant). She felt no pain on account of the drugs you had given her. After the incident, she had a shower and scrubbed herself because she felt disgusted.
13At some point between August and November 2022, you and the victim began living in Traralgon with Jessica Crean,[3] whom you knew. She allowed you and the victim to live in a garage which had been modified into a bedroom. At that address, you told the victim to give you a massage, which she did, and told her to give you oral sex, which she did. You then had sex with her, penetrating her vagina with your penis. These are relied on as uncharged acts to provide context.
[3] A pseudonym.
14On another occasion at Ms Crean's house, you laid down on a blow-up mattress and you told the victim to give you a massage. You directed her to sit on the back of your legs while massaging you, which she did. You then reached around to the inside of her shorts and digitally penetrated her vagina using two or three fingers (Charge 6– sexual penetration of a child or lineal descendant).
15After a few weeks, the two of you left Ms Cean's home. You were then staying at a hotel in Morwell near the fire station. The victim was using a lot of drugs at that time. On this occasion, you told her you wanted to fuck her. You told her that if anyone walked in, you would just keep going. She was on the floor leaning over the bed and you were behind her penetrating her vagina with your penis. (Charge 7 – sexual penetration of a child or lineal descendant). A staff member from the hotel knocked on the door and told you it was past check-out time and that you and the victim needed to leave. The staff member came in and the victim recalls that he almost saw the two of you engaged in a sexual act.
16You and the victim stayed for a short period in Morwell with a man named Fred Charles.[4] On at least one occasion at Mr Charles' house, you injected ice into the victim's arm. This is an uncharged act.
[4] A pseudonym.
17On another day at Mr Charles' house, you and the victim were alone in the loungeroom. The victim was sitting on the couch smoking cannabis. You grabbed her by the throat, pulled her legs forward and penetrated her vagina with your penis for a couple of minutes (Charge 8– sexual penetration of a child or lineal descendant). The victim says the offending may have been cut short because Mr Charles arrived back home.
18The two of you also lived for a week with a man named Alex Dudley[5] in Morwell. On at least one occasion at that residence, you gave the victim some GHB and made her take it by plunging it down her throat using a syringe. This is an uncharged act.
[5] A pseudonym
19On 7 November 2022, you and the victim went to an address in Morwell, which was the address of Cameron Sweeny.[6] You went there to get accommodation. You were refused. After an altercation, you and the victim left the house.
[6] A pseudonym.
20At around 4.30 am on 8 November 2022, you and the victim went to a public toilet on Commercial Road, Morwell. The victim took ice. In the toilet block, you used your mobile phone to record you and the victim engaging in sexual acts. One of the videos went for around 13 minutes and the other for about six minutes. This is the basis of Charge 10 - produce child abuse material.
21The video showed the victim wearing a black skirt without underwear and black suspender straps over her shoulders holding up her skirt. She was not wearing a top and her breasts and torso are exposed. She appeared unkempt, dirty and dishevelled. She had chocolate syrup on her face and her arms. The victim later commented that at that stage she had not showered for over a month.
22The video starts by showing the victim performing oral sex on you for about four minutes (Rolled up Charge 9 – sexual penetration of a child or lineal descendant).
23You then instructed the victim to stand up and remove her skirt and stop when she was naked. You told her to bend over facing away from you. You penetrated her vagina with your fingers (Rolled-up Charge 9 – sexual penetration of a child or lineal descendant). You then penetrated her vagina with your tongue (Rolled-up Charge 9 – sexual penetration of a child or lineal descendant) You then penetrated her vagina with your penis (Rolled-up Charge 9 – sexual penetration of a child or lineal descendant). You then penetrated her anus with your penis (Rolled-up Charge 9 – sexual penetration of a child or lineal descendant)
24Whilst still naked in the toilet block, you laid down on the floor and made the victim sit on your face. She placed her vagina onto your mouth, and you penetrated her vagina with your tongue (Rolled up Charge 9 – sexual penetration of a child or lineal descendant).
25At some point inside the toilet block, you stood near the entrance with your pants around your ankles, exposing your genitals. You instructed the victim to hold the mobile phone whilst it was recording. You then placed it on the ground facing both you and her. You instructed her to give you oral sex and inserted your penis into her mouth (Rolled-up Charge 9 – sexual penetration of a child or lineal descendant). This charge covered seven separate acts of sexual penetration.
26You and the victim then left the toilet block together. A short time later, you had an argument because she was trying to delete the videos that you had taken in the toilet block. You wanted to keep the videos. During the argument, you said 'Oh, I'm gonna to go call the cops, I'm gonna to go hand myself in just to prove a point.'
27At around 8.30 am, the victim left you and went to the Morwell police station. She arrived unkempt, dirty and appeared fearful and distressed. She asked to go home to her mother's house. She stayed for a short period in the police station while they spoke to her mother before she left.
28She then went to see Mary Shannon[7] at the Ladder Project Foundation in Morwell. She had had some involvement with Ms Shannon in the past. Ms Shannon observed her condition, including that she had lost a lot of weight and not showered in a long time. Ms Shannon assisted the victim to contact her mother. She overheard her telling her mother that you had been making her take drugs. Ms Shannon called the police.
[7] A pseudonym.
29Police came to the Ladder Foundation and spoke to the victim. The victim said to the police 'my dad rapes me, he injects me with ice and juice and rapes me'.
30The victim participated in a forensic medical examination with a doctor who observed the following:
(a) multiple skin injuries including sores and bleeding skin wounds over her face, around her lips and on her upper and lower limbs;
(b) track marks on her left arm and multiple bruises over her veins on both limbs consistent with IV drug use;
(c) black dirt within her posterior fourchette and her anus;
(d) redness and four small lacerations to her fossa navicularis;
(e) a healed transection of the hymen and a deep cleft of the hymen; and
(f) she weighed about 54 kilograms.
31The doctor said she was dehydrated and there was evidence of an old injury to her hymen, but no evidence of a recent injury to her hymen. The lacerations to her fossa navicularis were consistent with recent genital trauma.
32On 13 November 2022, she provided a VARE. She then made another VARE on 26 January 2023.
33On 8 November 2023, at about 12.10pm, two police officers approached you and you said, ‘excuse me, is this about the 16-year-old that’s been raped?’. You were then arrested by police.
34They seized your mobile phone which was in your bag. They analysed the phone and the two videos from the toilet block were identified.
35You were in possession of 2 grams of cannabis Charge 11 – possess cannabis).
36Police located a handwritten note from you to your daughter. The note refers to the videos on the phone and you say you are sorry.
37On 8 November 2022, following your arrest, you were interviewed by police. You made admissions to the conduct in the toilet block. You admitted to the offending being recorded. When asked about penetrating her vagina with your penis, you remained mute.
38You then said you were not aware that the person giving you oral sex was your daughter, and that you had an epileptic fit and only realised it was her after you heard the word 'daddy'.
39You were remanded in custody for these matters after you were interviewed. You have remained in custody since that time.
Victim Impact statement
40In her victim impact statement, your daughter said that during the offending, you said sorry and told her it would not happen again, but that it continued. She says she begged you to stop. She says she no longer has the energy to deal with your lies, mood swings, and being blamed. She says she will no longer wonder how you are, and she will no longer care about you or wonder where you have been.
41She says she does not want your explanations, and she does not want to see you cry. She says she does not want your response and does not even really want to say goodbye. She describes herself as tired and says, 'I'm done'. She says, 'the wound you left will probably never heal'. She said you called her nicknames and made her feel loved. She described that all as an act. She says you put her through hell when she was fighting for heaven. She says she is detaching herself and moving on.
Guilty plea
42You made an offer to plead guilty to various offences on 18 December 2023. A case assessment hearing took place, and then after further negotiations, this matter resolved on 17 April 2024. No doubt discussions were necessary to arrive at the appropriate charges in this matter. Your guilty plea has spared the victim the experience of having to relive these matters by giving evidence and saved the prosecution and the court the use of the resources required for a trial. It indicates a willingness to facilitate the course of justice, and I accept it indicates a level of remorse. It is a significant matter in mitigation. Although, given the presence of the video on your phone, any trial in this matter would have had negligible chances of success.
Serious offender provisions
43You will receive custodial sentences on Charges 2 and 3, and therefore for the remaining sexual penetration and child abuse material offences, which are Charges 4 through 10, you will be sentenced as a serious sexual offender, which will be noted in the court records. This means that the presumption of concurrency is reversed, and all sentences are to be cumulative unless otherwise ordered. Furthermore, the protection of the community must be considered the paramount sentencing purpose.
44The prosecution does not ask for a disproportionate sentence and accepts that the totality principle, although modified by the serious offender provisions, still has application and there ought to be some concurrency between the charges. I will return to the significance of the totality principle.
45You have pleaded guilty to seven Schedule 1 offences and one Schedule 2 offence under the Sexual Offenders Registration Act 2004 (Vic). You will be subject to mandatory registration and the reporting period is life.
Gravity of the offences
46The seriousness of the offence of incest is reflected by the maximum penalty of 25 years' imprisonment and the standard sentence of 10 years' imprisonment. Similarly, supplying a child with a drug attracts a 15-year maximum and producing child abuse material attracts a 10-year maximum.
47This was abject criminal conduct. I accept the prosecution submissions that this offending is in the high range of objective gravity.
48It is presumed that sexual offending against child victims will cause enduring psychological and physical harm. The prohibition on sexual activity with a child is founded on this presumption. It is apparent from the seriousness of the offending and the poignant victim impact statement that this offending has had, and will have, a very substantial impact upon your daughter. How could it not?
49In the case of DPP v Dalgliesh [2016] VSCA 148, the Court of Appeal said this about the crime of incest:
Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.
50The community rightly regards conduct such as yours as abhorrent. Your conduct violated the norms of civilised behaviour.
51The victim in this case was your biological daughter. An abuse of trust is inherent in this charge, but the fact she was your daughter accentuates your complete abdication of parental responsibility.
52She was just 15 years old when she came to live with you. I infer she was vulnerable given she had left her mother's home in Sydney. She was relying on you for care and protection. The role of a father is to nurture and protect their daughter. Instead, you did not even provide basics such as food, hygiene and shelter. You plied her with drugs and made it impossible for her to refuse to take them. You groomed her so you could satisfy your sexual urges. You used your power over her to achieve this. I accept the prosecution submission that your behaviour was coercive and manipulative.
53The offending was not isolated. The conduct covers sexual offending from June to November 2022. The charged offences cover nearly all types of penetrative sexual activity covered by the Crimes Act 1958 (Vic). Three of the charges are rolled up charges incorporating multiple acts of penetration, more than one act of penetration, and in the case of the offence in the toilet block, seven separate acts of penetration. In sentencing for a rolled-up charge, I must take into account the totality of the conduct, but you are still subject to a single maximum penalty.
54At times, the offending was extremely brazen, occurring on trains and in public toilets. The victim's vulnerability was increased by the fact that she was often under the influence of drugs.
55On occasions, you ejaculated inside her, exposing her to the risk of a sexually transmitted infection and/or pregnancy. I can find nothing in the material that suggests that you used a condom.
56Extraordinarily, in respect of the offending in the toilet block, you made a pornographic video of yourself engaging in the multiple penetrative sexual acts with your daughter. You had her participate in making this video. I regard this incident as the most serious in a group of sexual offences which are all of high objective gravity. As regards the produce child abuse material charge, which is Charge 10, in my opinion it is closely connected to the rolled up sexual penetration charge and operates as an aggravating factor for that offence. I have decided not to impose any cumulation for that offence.
57Having regard to the nature of the acts to which you have pleaded guilty and the gravity, the length of time over which this offending took place and the surrounding circumstances, including giving the victim drugs, I accept the prosecution submission that your moral culpability must be regarded as high, although I will return to some of the submissions about your background and mental state in relation to your moral culpability.
58You have substantial prior convictions. They are not for sexual offences. However, they do demonstrate pervasive criminality over a lengthy period and are relevant to your prospects of rehabilitation. You have received sentences of imprisonment in the past, and on several occasions, you have been placed on community correction orders. In the County Court in 2017, for an aggravated home invasion and other offences, you were sentenced to 66 months’ of imprisonment with a minimum non-parole period of 3 years’ and 4 months’.
59None of the penalties imposed by the courts in the past have been able to curb your offending behaviour and, whilst the prior convictions are of a different nature, it seems to me they are also relevant to the weight to be given to specific deterrence and your prospects of rehabilitation.
60Your counsel, Mr Connolly, relied on a neuropsychological report of Mr Martin Jackson, a psychological assessment of Ms Sandra Cokorilo, a medical certificate from Ms Tracy Drake, a letter from Ms Ruth Parsons of GROW Mental Wellness Programs, and a series of certificates from Hopkins Correctional Centre and a letter from you in which you express your remorse and some insight into the impact of your offending on your daughter. I have taken all those matters into account.
61Your personal circumstances are set out in detail in the report of Ms Cokorilo and Mr Jackson.
62You were born on in September 1981. You are now 43 years’ old. You were born in Victoria. Your parents separated when you were 18 months’ old. You remained in your father's care after the separation. You have few memories of your mother, and you do not know if she is still alive.
63When you were in Grade 5, your father moved in with his mother, your paternal grandmother. He was an alcoholic and soon after you moved in with your grandmother, she became your custodian. He was violent towards you. You stopped living with him when you were 11 years old, and you had little contact with him after that. He died when you were 27 years old.
64You say that you never felt nurtured, loved or supported by anyone growing up. You were often alone as your grandmother was often absent playing bingo. She was, according to you, an old-fashioned and strict disciplinarian.
65You were a below-average student and required additional support at school in Years 8 and 9. You attended four different primary schools. You say you were 'always the new kid' and 'a bit of a loner'. You were suspended many times for truancy and other problems at school, but you were never expelled.
66You left home at the age of 14 and began a butchering apprenticeship which you did not complete. You had little contact with your grandmother until she fell ill with cancer in 2014, after which you cared for her for some years.
67When you first moved out of home it was with your partner, but for quite some time after that, your accommodation was often transient.
68Over the years you have worked as a butcherer, a labourer, a chef, a slaughterer, and a carnival operator. But overall, you have worked for a total of less than five years, and you have not worked since 2013.
69You have reported to Ms Cokorilo that you were sexually assaulted by touching on two occasions by two different men.
70You have had three significant relationships. You have two sons, aged 19 and 15, and three daughters aged 17 (the victim in this matter) and two others aged,13 and 12. You were in a lengthy relationship between the ages of 20 and 34 with the victim's mother. You say your relationship with her deteriorated after you were assaulted in 2012 and sustained an Acquired Brain Injury (‘ABI’) which has left you traumatised.
71You have a lengthy history of abusing alcohol and drugs. You have been drinking heavily since you were 12 years old. You have also been using cannabis regularly since the same age. You have also used amphetamines and methamphetamines regularly, and you were doing so at the time of these offences.
72Mr Connolly submitted that you had experienced a severely disrupted childhood characterised by neglect and physical abuse. Mr Connolly relied on Ms Cokorilo's opinion at page 13 of her report where she said:
His early emotional deprivation, untreated psychopathology, cognitive impairment, history of trauma and sexual assault, and his addictions to illicit drugs are considered relevant to his sexual offending against his daughter.
73She goes on to expand on how these factors may have contributed to the offending.
74Mr Jackson in his comprehensive neuropsychological report at page 15, paragraph 8 said this:
Mr [Bolton] had an extremely difficult upbringing in a household with physical violence and neglect and had behavioural and mental health issues from an early age, including cutting and burning himself during his adolescent years. He was experiencing anxiety and depression all his life, but this was exacerbated after his assault in late 2012 following which he developed severe PTSD. He had little treatment for his mental health issues in the community but has had regular treatment when in prison between 2016 and 2021 and over the past two years. He sees a psychiatric nurse once a week and a psychiatrist every six weeks, as well as taking melatonin, Prazosin and Mirtazapine. In terms of his current mood, he reports ongoing symptoms of PTSD including sleep problems, nightmares, hypervigilance as well as saying that anxiety and depression are full on, although he tries to hide it so that others do not know. Clinically he presented as clearly depressed and anxious, although there were no overt signs of psychotic symptoms or hard behaviour signs. [He said you] … reported symptoms suggestive of extremely severe depression and anxiety as well as severe stress. [He said that your] test taking behaviour was appropriate and your neuropsychological profile is considered valid and reliable.
75His report indicates you have a brain injury resulting from the assault in 2012. He deals with the impact of that assault in his report. He describes that since then, you have developed epilepsy, and you currently are on medication. You have suffered regular seizures in custody which have fortunately improved on your current medication, although you did suffer a seizure in February of this year.
76Your neuropsychological speed is in the extremely low range. In many domains, you are in the extremely low and borderline range. Mr Jackson opined that 'there is really no prospect of any recovery of function in terms of his processing speed, verbal memory and executive functions'. Mr Jackson says your cognitive impairments are related to your inability to maintain employment. He said that you, as I have said, present as 'clearly depressed and anxious'.
77Mr Connolly submitted that the principles in the High Court case of Bugmy v The Queen (‘Bugmy’) are relevant to the assessment of your moral culpability and a corresponding moderation of general deterrence.
78I accept based on this material unchallenged that the Bugmy principles have application in this case. Obviously, to an extent, you are the product of the circumstances of your upbringing, and they are relevant to the life circumstances that prevailed at the time of this offending.
79Mr Connelly submitted that the combined effect of your childhood upbringing, your ABI, cognitive impairment and your related psychological disorders, played a contributory role in the offending, and he submitted therefore that this is relevant to the assessment of your moral culpability and that general deterrence should be moderated because of your psychological deficits. I accept that a moderation of moral culpability and general deterrence is appropriate having regard to the combination of factors on which Mr Connolly relied. Nonetheless, for this very serious and sustained conduct, your moral culpability remains substantial.
80Whilst there was no direct submission in respect of Verdins limbs 5 and 6, it seems to me I need to take into account the impact of your various cognitive issues and the effect they will have on how you serve your sentence and that to some extent, that increases the weight of the sentence on you, and I have taken that into account.
Remorse and rehabilitation
81In that letter you wrote to your daughter, you express your regret for your conduct. You say this: 'I'm so sorry for what I've done, I've never regretted anything more in my life and I've never been as sorry about anything as I am for this'. However, you also say that you do not agree with 100 per cent of what you have been accused of. You say you were on so many drugs and your drug use combined with your ABI has meant you do not remember a lot of things. You do say you are sure the events on 8 November did take place. You say you cannot be sure the other things did not happen either. You say you have pleaded guilty to everything so the court process can be finished faster, and Claudia can start the healing process quicker and move on with her life. Overall, the letter strikes me as a reasonably authentic expression of remorse and carries with it some insight.
82However, the prosecution in their submissions emphasise those passages in Ms. Cokorilo's report which differ markedly from the account of your daughter and the details of the offences in the prosecution opening. The prosecution focused on a lack of insight demonstrated in the account you gave Ms Cokorilo including efforts to minimise the seriousness of your actions, referring to the victim's 'active participation' in the offences. The prosecution also referred to Ms Cokorilo's opinion that 'he presents with a history of pervasive maladjustment and criminality and has no explicit plans towards rehabilitation'.
83In Ms Cokorilo's report, she assessed you as having a moderate risk of sexual recidivism without formal intervention.
84Mr Connolly also relied on the various things that you have done in prison and courses you have undertaken during the period of your remand as indicating you have some prospects of rehabilitation. He submitted that your letter also indicates you have some developing insight and victim empathy which bodes well for your rehabilitation. He said you are yet to participate in forensic programs because they do not become available until after sentence.
85The prosecution submits that I can take no more than a guarded view of your prospects of rehabilitation.
86In my opinion, the offending in this case is so far outside the boundaries of normal, decent behaviour that it is hard to be any more than guarded about your prospects of rehabilitation. Furthermore, you have been before the courts now for a lengthy period without any improvement in your behaviour. I accept there is some evidence of developing insight in your letter. You will, of course, be a much older man when you are finally released from the sentence that I will impose, and it is difficult to know what your situation will be at that time. Overall, though, I can take no more than a guarded view of your prospects of rehabilitation.
Standard sentence
87As I have already observed, the standard sentence for incest is 10 years’ imprisonment. The standard sentence applies to an offence in the middle range of seriousness, based only on its objective factors. A standard sentence is just one of the many matters to which I must have regard in deciding the sentences in this case. It is a legislative guidepost. It is not a mandatory sentence, nor is it the starting point from which to add or subtract time. In fixing a sentence in this matter, I have had regard to the standard sentence amongst all the other matters which I must have regard to in deciding the appropriate sentence. As will be seen, the sentences I have imposed are lower than the standard sentence where the standard sentence applies.
88In assessing current sentencing practices, I have only had regard to sentences imposed for standard sentence offences.
89The prosecutor, Ms Stevenson, has helpfully emailed a table of comparative cases including Court of Appeal cases for offences of incest and I have had regard to those matters. Of course, current sentencing practices are a guide but not a controlling factor in deciding the appropriate sentence.
Principles
90In this case, general deterrence, specific deterrence, just punishment, denunciation of this very serious sexual offending and community protection must all be emphasised. Indeed, where you are a serious sexual offender, community protection must be regarded as the paramount sentencing purpose. Nothing other than a substantial prison sentence is appropriate.
Totality – crushing sentence
91The totality principle requires that the total effective sentence must be just and proportionate to the total criminality of your offending. One aspect of the totality principle applicable here is the need to avoid a 'crushing sentence', that is a sentence that leaves you without any hope.
92In order to comply with the totality principle, I have moderated significantly the periods of cumulation I have ordered in this case and also to avoid a crushing sentence.
Non-parole period
93The non-parole period is the minimum period justice requires before you become eligible for release. The non-parole period mitigates punishment in favour of rehabilitation, but it must be consistent with the objective gravity of the offending.
94The sentences that I impose are as follows.
95Charge 1, supply of a drug of dependence to a child (rolled-up charge involving two occasions), four years' imprisonment.
96Charge 2, sexual penetration of a child or lineal descendant (rolled-up charge involving two seperate penetrations), seven years' imprisonment.
97Charge 3, sexual penetration of a child or lineal descendant, seven years’ and six months' imprisonment.
98Charge 4, sexual penetration of a child or lineal descendant, seven years' imprisonment.
99Charge 5, sexual penetration of a child or lineal descendant (rolled-up charge involving three separate penetrations) eight years' imprisonment.
100Charge 6, sexual penetration of a child or lineal descendant (digital penetration) six years' imprisonment.
101Charge 7, sexual penetration of a child or lineal descendant, seven years’ and six months' imprisonment.
102Charge 8, sexual penetration of a child or lineal descendant, seven years’ and six months' imprisonment.
103Charge 9, sexual penetration of a child or lineal descendant (rolled-up charge involving seven separate penetrations), eight years’ and eight months' imprisonment.
104Charge 10, produce child abuse material, two years' imprisonment.
105Possess cannabis, convicted and discharged.
106Four months’ of the sentence on Charge 1, 12 months’ of the sentence on Charge 2, 12 months’ of the sentence on Charge 3, 12 months’ of the sentence on Charge 4, 18 months’ of the sentence on Charge 5, 10 months’ of the sentence on Charge 6, 15 months’ of the sentence on Charge 7, and 15 months’ of the sentence on Charge 8 are cumulative on each other and on the base sentence in this matter, which is on Charge 9. The base sentence is eight years’ and eight months’ imprisonment, making a total effective sentence of 16 years’ and 10 months’ imprisonment.
107I fix a non-parole period in this matter of 12 years imprisonment.
108I allow 856 days of pre-sentence detention to be deducted administratively as time served.
109I indicate that but for your plea of guilty I would have imposed a sentence of 22 years’ imprisonment, with a minimum non-parole period of 17 years’ and six months’ imprisonment.
110I will make a SORA registration order for life, and you will be supplied with the paperwork in relation to that and as I said earlier, it will be noted in the records of the court for Charges 4, 5, 6, 7, 8, 9 and 10 you are sentenced as a serious sexual offender. So those are the orders I make in this case.
111MS STEVENSON: As the court pleases.
112VOICE There was a forfeiture and a disposal order sought.
113HIS HONOUR: I also make the forfeiture and disposal orders sought, unless there is any objection to those.
114MR CONNOLLY: No there isn't, Your Honour.
115HIS HONOUR: Thank you to counsel for your assistance in this matter. Yes.
116MR CONNOLLY: Your Honour, during the course of Your Honour's remarks, Your Honour noted what Ms Cokorilo had said of that work, the most recent work that being 2023 - - -
117HIS HONOUR: Yes. No, no, I thought I must have transcribed that wrongly.
118MR CONNOLLY: It is what Ms Cokorilo said.
119HIS HONOUR: But it can't be right because he has been in prison since 2022, that's why.
120MR CONNOLLY: That's right. It almost certainly should have read 2013 - - -
121HIS HONOUR: 2013, yes.
122MR CONNOLLY: - - - because that is when - he suffered the assault leading to the brain injury - - -
123HIS HONOUR: Yes of course, that makes sense.
124MR CONNOLLY: - - - on Boxing Day of 2012.
125HIS HONOUR: Yes.
126MR CONNOLLY: So 2013 most likely would have been - - -
127HIS HONOUR: All right, well what I propose to do then is alter my remarks to reflect that and I will change it to 2013.
128MS STEVENSON: No issue with that, Your Honour.
129HIS HONOUR: In fact as I was reading it, although I had taken it straight out of the report, it was obvious it didn't make sense, so thanks for that.
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