Director of Public Prosecutions v Boyle (a pseudonym)
[2015] VCC 1641
•13 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WODONGA SITTING AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS SAMUEL BOYLE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Wodonga sitting at Melbourne | |
DATE OF HEARING: | 2 November 2015 | |
DATE OF SENTENCE: | 13 November 2015 | |
CASE MAY BE CITED AS: | DPP v Boyle (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1641 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Plea of guilty to 18 charges of indecent act with a child under 16 and one charge of incest (victim was defendant’s daughter aged between 8 and 12 years) – following a trial, defendant found guilty of 14 charges of indecent act with a child under 16 and one charge of incest (victim was defendant’s grand-daughter, aged between 10 and 12 years)
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence 9 years and 11 months imprisonment with a non-parole period of 6 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Hollingworth | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms D Price | Mr G Duncan |
HER HONOUR:
1 You have pleaded guilty to 18 charges of committing an indecent act with a child under the age of sixteen years and one charge of incest. The victim of this offending was your daughter, who at the relevant time was aged between eight and twelve years. The offending occurred between March 1996 and March 2001, during which time you were aged between forty-four and forty-nine years.
2 In addition, following a trial, a jury has found you guilty of 14 charges of committing an indecent act with a child under the age of sixteen years and one charge of incest. The victim of this offending is your grand-daughter who was aged between ten and twelve years. This offending occurred between January 2013 and July 2014, when you were aged between sixty-one and sixty-two years.
3 The maximum penalty for each charge of indecent act committed with a child under the age of sixteen years is 10 years’ imprisonment. The maximum penalty for each charge of incest is 25 years’ imprisonment.
4 On 21 July 2014, police were notified by staff at the primary school attended by your grand-daughter after she had mentioned something about the offending to friends in the playground. Your grand-daughter’s parents had separated and, as her mother had returned to work, your grand-daughter and her brother were spending considerable periods of time after school being cared for by you and your wife. They also had sleepovers at your house from time to time. Over the period from 1 January 2013 to 20 July 2014, you sexually offended against your grand-daughter on eight separate occasions.
5 On the first occasion, your grand-daughter was sitting on your lap at your computer, while playing a game. Whilst doing so, you touched her vagina with your hand (Charge 1). You then touched her breasts with your hand (Charge 2).
6 The second occasion of offending occurred whilst your grand-daughter was sitting on your lap in the courtyard at your home. You touched her vagina while she was in this position (Charge 3). You then touched her breasts (Charge 4).
7 The third occasion of offending was while your wife was absent from the home and your grand-daughter was having a sleepover. She had gone to bed and you entered the room where she was sleeping. You came into the bedroom, closed the door and gave her a kiss and a hug. You then kissed her on top of her vagina and asked whether she wanted a proper kiss, following which you pulled down her pyjama pants and started licking up and down her vagina as her legs were held wide open (Charge 5).
8 The fourth occasion of offending occurred when your grand-daughter was sitting on your lap in the lounge room of your home watching a movie. You asked her to get a blanket and covered the two of you with it. You then started playing with her vagina (Charge 6) and with her breasts (Charge 7) under the blanket.
9 The fifth occasion of offending was when your grand-daughter was sitting on your lap in front of the fire in the courtyard of your home. You put your hand under her pyjama pants and started touching her vagina (Charge 8) and then used your hands to touch her breasts, performing circular motions (Charge 9).
10 The sixth occasion of offending occurred when your grand-daughter was watching a movie in your lounge room. Again, the two of you were covered with a blanket. On this occasion, you inserted one of your fingers into her vagina. It hurt her and she grabbed your hand and pulled it out. This is the charge of incest (Charge 10). On this same occasion, you also touched her on the breasts under her pyjamas (Charge 11).
11 The seventh occasion of offending was when your grand-daughter was sitting on your lap whilst you were playing a computer game and you squeezed bits of her vagina, which was uncomfortable because you did it “real tight” (Charge 12).
12 The eighth and final episode of offending occurred, once again, when your grand-daughter was sitting on your lap whilst you were at your computer at home. You showed her two pornographic videos. One was of three men having sex with one woman. The other was of many women and men having sex with each other in some form of orgy. Whilst showing her the pornographic videos, you touched her vagina under her clothing (Charge 13) and also touched her breasts under her clothing (Charge 14). You then went to your room, pulled down your pants and exposed your penis, asking your grand-daughter “Would you like to do it?” (Charge 15).
13 The offending relating to your daughter, to which you have pleaded guilty, came to light when she returned from an overseas trip in late 2014 and became aware of the allegations made by your grand-daughter (her niece) against you. She told her de facto husband about the offending against her by you and the two of them confronted you. You admitted the offending and wrote a letter of apology to your daughter (Exhibit “6”). Your daughter subsequently made a statement to police and, on 16 December 2014, you voluntarily attended Wodonga Police Station and participated in a Record of Interview in which you made admissions concerning your sexual abuse of your daughter. On 5 June 2015, you offered to plead guilty to the subject charges relating to your daughter and the matter proceeded by way of hand-up brief.
14 Your daughter, who is your victim, is the youngest of your four children and your only daughter. You offended against her on 12 occasions, all of which occurred in the family home, usually when your wife, her mother, was absent and your sons were in other rooms of the house, or asleep.
15 On the first occasion, when your daughter was aged either eight or nine years, you and she were sitting on your bed. As you showed her a pornographic movie, you masturbated your penis, while explaining to her what was happening on the screen. (Charge 1) You then took hold of your daughter’s hand and placed it on your penis, moving it up and down. (Charge 2) Your daughter withdrew her hand and you continued to masturbate yourself.
16 On the second occasion, again when your daughter was either eight or nine years old, you and she were again on your bed. She was lying on her back and you rubbed your erect penis against her vagina. (Charge 3)
17 The third occasion was, also, when your daughter was aged either eight or nine years. Your wife (her mother) was away at her craft evening and the three boys were in bed asleep. You entered her bedroom and closed the door. You lifted up the bed covers, put your head under the doona, pulled down your daughter’s shorts, spread her legs and licked her vagina. (Charge 4) Your daughter kept her eyes shut. When you had finished licking her vagina, you stood up and kissed her goodnight and left the room.
18 The fourth occasion was, also, when your daughter was aged either eight or nine years. You invited her into the en-suite shower of your bedroom. You were both naked in the shower and you used soap to lather her back before moving your hands to touch her breasts and vagina. She also felt your erect penis touching her back. (Charge 5) On this same occasion, you turned your daughter around to face you, lifted her up against the shower wall and told her to wrap her legs around your waist. You then began to rub your erect penis against her vagina and to breathe heavily. (Charge 6) You later put your daughter down, washed her off, dried her with a towel and she returned to her bedroom.
19 The fifth occasion was when your daughter was aged eight years. You were the only ones home and were in the master bedroom. You showed her a pornographic movie and masturbated your exposed erect penis in her presence. (Charge 7) You then took hold of her hand and placed it on your penis, instructing her how to masturbate you. (Charge 8) Following this, you removed her clothing and laid her down on the bed. You lay on top of her and rubbed your erect penis against her vagina. (Charge 9) When you were finished, you picked her up and carried her to the en suite shower and washed her.
20 The sixth occasion was when your daughter was aged nine years. Again, she was on your bed with you. She lay on her back, wearing only socks, and you were naked and lay on top of her, rubbing your erect penis against her vagina. (Charge 10)
21 The seventh occasion was when your daughter was aged ten years. Again, she was on your bed. She was lying on her back and was naked from the waist down and you knelt on the floor in front of her and licked her vagina. (Charge 11) You then positioned yourself on top of her and rubbed your penis against her vagina. (Charge 12)
22 The eighth occasion was when your daughter was aged either eleven or twelve years. She was running away from you and you caught her in the lounge room, pinned her to the floor and pulled her pants and underwear off. (Charge 13) Your daughter screamed and one of her brothers entered the lounge room. You then walked out of the lounge room.
23 The ninth occasion was, also, when your daughter was aged either eleven or twelve years. You took her into the lounge room, had her lay down on the floor, pulled her pants down and touched her vagina (Charge 14) and then licked her vagina. (Charge 15) You then moved your erect penis up and down near her vagina. (Charge 16)
24 The tenth occasion was, also, when your daughter was aged either eleven or twelve years. Again, she was naked on your bed. She was lying face down. You were behind her and rubbed your erect penis against her vagina. (Charge 17)
25 The eleventh occasion was when your daughter was aged twelve years. Again, you had her in your bedroom. She was naked and you rubbed your erect penis near her vagina. (Charge 18)
26 The twelfth and final occasion was when your daughter was aged twelve years. Again, you had her in your bedroom. She was naked and you rubbed your erect penis near her vagina and then changed your position and penetrated the outer lips of her vagina with your penis. (Charge 19) You then withdrew your penis from her vagina and continued to rub your penis near, but not inside, her vagina. Soon after this incident, when you daughter believed a further incident of offending was going to take place, she stood up to you and said, “No” and explained that she was getting her period. You never offended again against her. On at least one of the occasions, you had said to your daughter something to the effect of, “Don’t tell the boys. It’s just us. I don’t do this with the boys.”
27 You are presently aged sixty-four years, having been born on 23 October 1951. You come before the Court with no prior criminal history and no subsequent criminal history.
28 In a plea on your behalf by Ms Price, the Court was told that you were born in Horsham and grew up in Wangaratta and are the youngest of five children. You were especially close to your brother who was the second youngest in the family, who died of cancer in 1993. You moved to Melbourne when you were seventeen years of age and met your wife in 1970. Ms Price stated that your wife is still supportive of you, but did not come to Court for the plea hearing because of the obvious tension within the family.
29 Your apparently have a very good work history. After leaving school, you worked at the North Eastern Cooperative General Store in Wangaratta and, after moving to Melbourne, joined the public service and worked in various different departments until you retired due to ill health in 1988. In 1981 you had been diagnosed with a non-cancerous growth known as an acoustic neuroma for which it was necessary for you to undergo surgery. This resulted in deafness in your right ear and a noticeable palsy on the right side of your face. You also suffered scarring causing a significant loss of vision in your right eye, complicated by further corneal ulceration from an infection. You underwent eye surgery by way of a corneal graft in 1992 and, apart from the loss of vision, have been left with problems of excessive dryness in the right eye, which is exacerbated by air conditioning. These matters were confirmed by a report from your optometrist dated 12 September 2015 (Exhibit “4”). In addition, there was a report from your general practitioner dated 7 September 2015 (Exhibit “5”), which also mentioned that you suffer from degeneration of the facet joints in your cervical spine at C3/4 level. This was apparently diagnosed and treated with steroid injections in May and June 2008. However, you ultimately required decompression surgery at that level. This was undertaken on 30 October 2008 and involved a bone graft for an intervertebral fusion, with some form of internal fixation by screws. You still require analgesic medication for this condition by way of Mobic tablets, 15 milligrams each evening.
30 Ms Price stated that, in spite of your significant health issues which required your early retirement from the public service, you had been resourceful in undergoing retraining. You completed an Advanced Certificate in Farming at Wangaratta TAFE in 1994 and, subsequently, you obtained qualifications in plastering. Over the period from 1988 to 2012 you were self-employed as a builder/plasterer, performing a variety of duties until your cervical spine condition forced you to retire. You have been in receipt of a disability support pension since that time. In addition, Ms Price said that you had a significant history of community and charity volunteering work. Following the 2003 Boxing Day tsunami, you twice visited Banda Aceh to undertake volunteer work by way of labouring and helping to restore fresh water and sewerage facilities. You also joined an organisation known as Australian Business Volunteers. As part of this organisation, you have visited Papua New Guinea, the Solomon Islands and Fiji from 2006 onwards in order to help train local residents with building techniques, while your wife volunteered with other organisations. Closer to home, Ms Price stated that you had been involved with the Glenview Aged Care Facility in Rutherglen since 2013. As a volunteer, you would drive elderly residents to appointments and helped organise a book club. You also put on “arm chair travel shows” by way of PowerPoint demonstrations, so that infirm residents could capture the experience of overseas travel in circumstances where they would be unable to undertake it themselves.
31 Ms Price told the Court that you had been tireless in the pursuit of self-education and, in addition to the retraining which I have already mentioned, you had undertaken a Certificate IV in Community Services work, a dementia specific workshop and had commenced a Diploma of Community Services. Various of these certificates were tendered as Exhibit “2”.
32 Tendered as Exhibit “8” on the plea was a report from Mr Jeffrey Cummins, forensic psychologist, dated 28 October 2015. He took a history from you that your father had been an alcoholic, who had regularly sexually abused you between the ages of thirteen and sixteen. You told Mr Cummins that your father had abused all of his sons. Just after your father died in 1991, your mother admitted that she knew of your father’s offending against you and your brothers, but did not want it to come out because she did not want the neighbours to know. You told Mr Cummins that you were devastated by this. You confided in your favourite brother and stated that, when he died in 1993, you “just sort of became obsessed with sex and sex became a driving force for me.” You referred to a variety of sexual experiences which you had had, and stated that, “It was during this time when I was obsessed with sex that I offended against (my daughter).” You claimed to have made admissions to your wife about having sexually abused your daughter and stated that this impacted upon your sex life with your wife (I here interpolate that this history seems to be at odds with your letter of apology to your daughter, which states that, in part, your refusal to tell about the offending was because you did not want to hurt your wife.) You also told Mr Cummins that, by early 2015, after you had been charged with the offending against your daughter and, also, your grand-daughter, you were seriously suicidal. You described consuming an excessive quantity of home-made rum and stabbing yourself in the arm with a Stanley knife, following which you were admitted as an inpatient to Nolan House for five days.
33 In relation to the offending against your daughter, you wrote a handwritten letter of apology to her (Exhibit “6”). This was in December 2014, prior to being charged by police. In your Record of Interview, you admitted that you fantasised that your daughter would willingly come to you to want intercourse at some point. You stated that although you are legally a paedophile, it is not something that you are “turned on with”. You claimed that, although you used your daughter “for my own personal fantasies, I had no urges towards children, per se.”[1] Mr Cummins said that throughout the interview with him, you repeatedly apologised and expressed remorse for your offending against your daughter, but maintained your innocence in relation to the jury verdict concerning your grand-daughter. He noted that you appeared mildly anxious and moderately depressed and were missing your wife and were currently medicated with the antidepressant, Zoloft.
[1] See answers to question 289 and question 291 in Record of Interview made on 16 December 2014
34 Mr Cummins stated that it was obvious from your comments at interview, that you resisted defining yourself as having engaged in paedophilic offending against either your daughter or your grand-daughter, although you claimed that you used your sexual contact with your daughter to generate sexual fantasies to which you would subsequently masturbate. He stated that your offending behaviour against your daughter indicated that you were then suffering from a paedophilic disorder. He noted that you were convinced that there was some nexus between you having been sexually abused by your father, and never having received treatment for that sexual abuse, and your sexual abuse of your daughter. Mr Cummins considered that that nexus was plausible and probable, but it was something which would inevitably need to be explored and evaluated in a group-based sex offender treatment program. He considered it is imperative that you participate in such a program and noted that you may still be in a state of denial concerning the jury verdict regarding your grand-daughter. Finally, Mr Cummins noted that because of your deformed facial appearance (facial palsy), it is likely that you would be ridiculed and intimidated in custody, although you would likely be held in protective custody.
35 Tendered on your behalf were two references (Exhibit “3”). One was from a friend who has known you for 46 years, albeit that he has lived in Queensland for the past 20 of those years. He speaks highly of your community-minded spirit and your shame and remorse over what you have done to your daughter and expresses surprise at your offending, because he has always found you to be a reliable and trustworthy person. The other person met you 20 months ago, whilst studying at Wangaratta TAFE with you for a Diploma of Community Services. He described you as an ethical man with great concern for the wellbeing of others. He described you as compassionate and caring and stated that your honesty and concern for your daughter and the rest of your family “shines through”. It is difficult to reconcile these glowing references with your offending behaviour.
36 Your offending is probably the most selfish breach of trust that could be exhibited by a father and grandfather. You have destroyed the beauty and innocence and security of the childhood of both your daughter and your grand-daughter, when you should have been there to protect them. Your grand-daughter had suffered through the break-up of her parents’ marriage and clearly saw the home of her grandparents as somewhere where she should be safe. Instead, just as you had used and abused your own daughter for your sexual gratification, so, too, did you use and abuse your grand-daughter. You have caused long-term irreparable harm to each of your victims and torn your family structure apart.
37 The Victim Impact Statements filed in this matter speak volumes about the long-term damage that your sexual abuse has caused. Your daughter courageously read out her Victim Impact Statement in Court (Exhibit “B”). It is a most poignant document, demonstrating deep hurt, which exhibited itself in anger and aggression towards others, self-harm and suicidal thoughts because your offending had made her feel so worthless. She tried to disguise the changes in her body as she became a teenager, feared going to sleep because of your menacing visits to her room, and had ongoing serious issues with male authority figures. She describes how, after she returned from overseas and found out about the allegations against you by your grand-daughter, all that she had suffered as a child returned with a vengeance and she became distraught and suffered horrible flashbacks, which interfered with the relationship with her de facto partner. Unfairly, she has a burden of guilt concerning your grand-daughter because she believes that if she had just said something about the offending against herself, you would never have had the chance to hurt your grand-daughter. She describes the effects of what you have done to her as unquantifiable. She finds her mother’s lack of support for her has enhanced the hurt that you have caused her and describes the family being split apart as she no longer has contact with her two oldest brothers.
38 I do accept that your plea of guilty to the offences committed against your daughter is a remorseful one and this is demonstrated in your Record of Interview and your letter of apology to her. However, notwithstanding that I accept your apology to your daughter is a sincere one, the disparity between you saying that you thought that, over the years, you had regained her trust and developed a great relationship with her and that, overall, her teenage years were happy ones, shows a serious lack of appreciation of the deep, deep damage that you have done to your daughter. It is to her great credit that she has managed to achieve in a demanding profession and has had the courage to write eloquently of the impact upon her of your appalling offending over such a long time in her childhood.
39 A Victim Impact Statement by your grand-daughter was tendered as Exhibit “C”. A portion of it was written by her mother and notes that she is still receiving counselling relating to your abuse and dealing with lots of anger, sadness, frustration and confusion. In the lead-up to the trial, she was unable to see her grandma and other relatives and could not attend Girl Guides, at which her grandma holds a leader’s position. She has been bullied at school, has had trouble sleeping and has difficulty concentrating and missed many days at school, while dealing with the aftermath of your offending. Your grand-daughter, herself, speaks poignantly of how your offending has torn the family apart and how much she misses members of the family, particularly her grandmother, your daughter, a couple of her uncles and cousins and their pets. She states that she shakes unexpectedly when people ask how her grandparents are and, at school, when asked to draw a family tree, she did not know whether to add you to it. She speaks of people not trusting her and her not trusting people, as a consequence of your offending.
40 The brother of your grand-daughter also made a Victim Impact Statement which was tendered as Exhibit “D”. He writes that he has been particularly upset because he has not been able to speak to his grandma. His mother states, on his behalf, that he has suffered anger and frustration, difficulties with concentration and sleeping and has been bullied at school. He has missed being able to attend a variety of activities and has not been able to see other family members.
41 The mother of your grand-daughter also made a Victim Impact Statement which was tendered as Exhibit “E”. She speaks of the stress and sleeplessness and exacerbation of pre-existing mental health issues that she suffered as a consequence of your abuse and dealing with gossip and disbelief by a number of people concerning her daughter’s allegations against you. She has spent countless hours leading up to the Court case attending interviews and appointments for the welfare of the children, has incurred the expense of significant road trips for these purposes and also had to spend extra amounts on childcare, as well as the expense of counselling for the children.
42 All of the suffering referred to in the Victim Impact Statements is a foreseeable and understandable consequence of your repeated sexual offending against two lineal descendants. In both cases, your offending occurred over a number of years – approximately four years in the case of your daughter and approximately 18 months in the case of your grand-daughter. There were multiple acts of offending against your grand-daughter, which escalated from touching her private parts with your hand, to licking her vagina and showing her pornographic videos and exposing your penis to her. In the case of your daughter, there were many occasions of you masturbating in front of her, rubbing your penis against her naked body and licking her vagina. In relation to both your daughter and your grand-daughter, there was one of charge of actual incest – penetration of the outer lips of your daughter’s vagina with your penis, and penetration of your grand-daughter’s vagina with your finger. No children should be exposed to such deviant sexual behaviour, long before they could be expected to have any understanding of it, and in circumstances where they trusted the perpetrator as a supposedly loving, caring family member. Your daughter and grand-daughter were entitled to be protected by you. Instead they needed protection from you as you engaged in your creepy behaviour, time and time again, as they lived in dread of your next approach.
43 You claim to have been sexually abused as child yourself, although your counsel did not put this as in any way reducing your moral culpability. If you have been sexually abused by your own father, it is hard to know how your could have visited that humiliation and hurt upon your own daughter and grand-daughter. For a man who seems to have spent much of his life busily doing self-improvement courses, you have shown a serious lack of insight into your sexual deviance and a total failure to do anything about it.
44 Sexual offending against children is prevalent in our society. Unhappily, it is often committed by persons like yourself, who are in a position of trust. This kind of offending can remain undetected for a long time because children are so vulnerable and confused by the breach of trust. It very often leaves psychological damage of the type referred to in the Victim Impact Statements. The law provides special protection to children and it is another layer of tragedy when they need protection from their own father or grand-father. A strong message must be given by courts that behaviour like yours will not be tolerated. In sentencing you, this court must denounce your conduct, emphasise general deterrence and impose appropriate punishment.
45 In relation to your daughter, although in your Record of Interview you did deny showing her pornography and penetrating her vagina at all, you, nevertheless went on to say that, if your recollection differed from that of your daughter, then you would accept your daughter’s recollection. You have pleaded guilty to all charges relating to your daughter. An indication to this effect had been given prior to the committal mention and your pleas of guilty were announced at the committal mention. Thus, your pleas of guilty in relation to the offending against your daughter are very early pleas and I accept that you have fully accepted responsibility for your offending against your daughter. They are remorseful pleas, which have facilitated the course of justice and spared your daughter from having to give evidence.
46 As far as your grand-daughter is concerned, your counsel stated that you acknowledge the jury verdict. However, as previously mentioned, in the history given to Mr Cummins you still maintain your innocence in relation to your grand-daughter. Mr Cummins was specifically asked not to assess your risk of reoffending. Your counsel stated that this was because of your denial of the offending in relation to your grand-daughter. Nevertheless, Mr Cummins noted that you meet the diagnostic criteria for a paedophilic disorder. He noted that you resist defining yourself as a paedophile. This is clearly concerning I share Mr Cummins’ opinion that it is imperative that you participate in a group-based sex offender treatment program.
47 Obviously, the jury were satisfied of your grand-daughter’s evidence beyond reasonable doubt and I must say she presented as an intelligent, dignified and compelling witness, who gave convincing details of your offending conduct. Further, she did not appear to be vengeful. In her VARE she expressed her concern that you would probably go to jail and she would never see you again and that is not what she had wanted, but she did not want you to do what you were doing to her. In her childlike way, she stated, “Even if I had to get them to make a little jail part in the house where he’d have to live, even if that had to happen. Yeah. I didn’t want it to come to this but it had to.”[2] Your ongoing refusal to acknowledge your offending against your grand-daughter makes it very difficult, indeed, to comment upon your prospects of rehabilitation; Successful rehabilitation requires acknowledgment of your wrongdoing, insight into its impact upon your victims and a preparedness to address the reasons for your offending. There are no mitigating factors at all in relation to the actual offending against your grand-daughter. She had to re-live the trauma of your abuse by giving evidence and to withstand cross-examination in which it was suggested to her that she had some ulterior motive for making her allegations and that they were untrue.
[2]Answers to Questions 396 and 397 in the VARE of the defendant’s grand-daughter made on 21 July 2014.
48 In sentencing you, I take into account that you have no criminal convictions. However, this is the case with many sex offenders and this factor, generally, is given less weight in sentencing for sexual offending like this than it might be for other types of offending. I also take into account that you are suffering depression, reactive to your legal situation, and, in particular, the strain on your marriage and family relationships and that you are being medicated with an antidepressant. Apparently you have seen a psychiatrist on 5 occasions since your inpatient stay at Nolan House in March this year.
49 I further take into account your quite serious cervical spine problem. Your counsel stated that this condition had been aggravated when you were assaulted by one of your sons after the disclosure of your offending. You were referred by your general practitioner for an MRI scan of your cervical spine and shoulders on 7 July 2015 (Exhibit 7). You missed an appointment with your orthopaedic surgeon, Mr Thien on 10 September 2015 to review the finding on the MRI scan because you were undergoing your trial and, subsequently, were remanded in custody. You still require daily Mobic medication for this problem. You, also, have ongoing issues with your eye, following the acoustic neuroma. You still require the administration of drops and a saline wash for your eye condition. Unfortunately, despite my having spelled out to the custody authorities the difficulty that you suffer with your eye, particular in dry or air conditioned conditions, you were denied access to eye drops and saline during a period of five days’ remand at the Melbourne Custody Centre and developed an infection in the eye, which is very concerning, given your risk of further corneal scarring. This Court acknowledges that the pain and difficulties in relation to each of these conditions is likely to make your term of imprisonment more difficult than for someone without such conditions.
50 There is no doubt that no sentence is appropriate for your offending but a term of imprisonment, and it must be a substantial one. Although there are more grave acts of sexual offending than yours, the persistence of your intrusive aberrant behaviour over quite a period of time in relation to each of your victims, so that they could not feel safe when they knew you were in the house, even when they went to bed at night, coupled with the breach of trust, makes your offending very serious. However, I must bear in mind the principle of totality in order to arrive at an overall just sentence which is not a crushing one. As I intend to convict and impose a term of imprisonment on each of the charges upon which I must sentence in relation to your daughter and grand-daughter, you fall to be sentenced as a serious sexual offender on Charges 3 to 19 (both inclusive) in relation to your daughter and on all charges relating to your grand-daughter. Accordingly, pursuant to s6D of the Sentencing Act, in relation to those charges I must regard the protection of the community from you as the principle purpose for which the sentence is imposed. However, the prosecution submits that, in order to achieve that purpose, it is not necessary for me to impose a sentence longer than that which is proportionate to the gravity of the offences, considered in the light of their objective circumstances. I agree with that position.
51 Section 6E provides that every term of imprisonment imposed by a Court on a serious offender for a relevant offence should be cumulative on other sentences unless otherwise directed by the Court. It is my view that, in your case, this would lead to a manifestly excessive sentence and, accordingly, in applying the principle of totality, I consider that, although there must be some cumulation on the charges on each indictment, it is necessary to allow considerable concurrency in order to arrive at an overall just sentence. I have endeavoured to achieve an appropriate sentence by providing some cumulation in relation to each occasion of offending albeit not in relation to each individual charge.
52 On Indictment No F10711271 relating to the offending against your daughter, I sentence you as follows:
Charge 1 – you are convicted and sentenced to be imprisoned for a period of 6 months;
Charge 2 – you are convicted and sentenced to be imprisoned for a period of 6 months;
Charge 3 – you are convicted and sentenced to be imprisoned for a period of 10 months;
Charge 4 – you are convicted and sentenced to be imprisoned for a period of
12 months;
Charge 5 – you are convicted and sentenced to be imprisoned for a period of 7 months
Charge 6 – you are convicted and sentenced to be imprisoned for a period of 10 months;
Charge 7 – you are convicted and sentenced to be imprisoned for a period of
7 months;
Charge 8 – you are convicted and sentenced to be imprisoned for a period of
6 months;
Charge 9 – you are convicted and sentenced to be imprisoned for a period of
10 months;
Charge 10 – you are convicted and sentenced to be imprisoned for a period of
10 months;
Charge 11 – you are convicted and sentenced to be imprisoned for a period of
12 months;
Charge 12 – you are convicted and sentenced to be imprisoned for a period of
10 months;
Charge 13 – you are convicted and sentenced to be imprisoned for a period of
6 months;
Charge 14 – you are convicted and sentenced to be imprisoned for a period of
6 months;
Charge 15 – you are convicted and sentenced to be imprisoned for a period of
12 months;
Charge 16 – you are convicted and sentenced to be imprisoned for a period of
10 months;
Charge 17 – you are convicted and sentenced to be imprisoned for a period of
10 months;
Charge 18 – you are convicted and sentenced to be imprisoned for a period of 10 months; and
Charge 19 – you are convicted and sentenced to be imprisoned for a period of
2 years.
53 The base sentence on this indictment is that of 2 years imprisonment imposed on Charge 19. I direct that 1 month of the sentences imposed on charges 2 and 13, 2 months of the sentences imposed on charges 3,6,9,10,17 and 18, and 3 months of the sentences imposed on Charges 4, 11 and 15, be served cumulatively upon the base sentence and upon each other. Save for such cumulation, all sentences are to be served concurrently.
54 Thus, the total effective sentence on this indictment is 47 months imprisonment.
55 On Indictment No E14226601.1 relating to your offending against your grand-daughter, I sentence you as follows:
Charge 1 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 2 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 3 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 4 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 5 – you are convicted and sentenced to be imprisoned for a period of 2 years;
Charge 6 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 7 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 8 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 9 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 10 – you are convicted and sentenced to be imprisoned for a period of
4 years;
Charge 11 – you are convicted and sentenced to be imprisoned for a period of
12 months;
Charge 12 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 13 – you are convicted and sentenced to be imprisoned for a period of 12 months;
Charge 14 – you are convicted and sentenced to be imprisoned for a period of 12 months; and
Charge 15 – you are convicted and sentenced to be imprisoned for a period of 12 months.
56 The base sentence on this indictment is that of 4 years’ imprisonment imposed on charge 10. I direct that 1 month of the sentence imposed on charge 12, 2 months of the sentence imposed on charge 15, 3 months of the sentences imposed on charges 1, 3, 6, 8 and 13, and 6 months of the sentence imposed on charge 5 be served cumulatively upon the base sentence and upon each other. Save for such cumulation, all sentences are to be served concurrently.
57 Thus, the total effective sentence imposed on Indictment No. E14226601.1 is 6 years imprisonment.
58 I direct hat this sentence be served cumulatively upon the sentence imposed on Indictment No. F10711271. Therefore, the total effective sentence overall imposed today, is 9 years 11 months imprisonment.
59 I direct that you serve a period of 6 years imprisonment before becoming eligible for parole.
60 I declare a period of pre-sentence detention of 58 days to be time reckoned as already served under the sentences imposed this day.
61 Pursuant to s 6AAA of the Sentencing Act, I state in relation to Indictment No. F10711271 that, had it not been for your pleas of guilty, the total effective sentence imposed on that indictment would have been 7 years and 10 months. This would have resulted in a total effective head sentence in relation to both indictments of 13 years and 10 months and I would have directed that you serve a period of 9 years before becoming eligible for parole.
62 Pursuant to s 464ZF(2) of the Crimes Act I order a forensic procedure for the taking of a scraping of the mouth in accordance with Subdivision 30A of Part 3 Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that such an order is warranted due to the serious circumstances of the offending. If you do not co-operate with the taking of a sample of saliva from inside your cheek, then the police are entitled to use reasonable force to obtain it.
63 Pursuant to 6F of the Sentencing Act I cause to be entered in the records of the court that in sentencing you on charges 3 to19 (both inclusive) of indictment number F10711271 and on charges 1 to 15 (both inclusive) on indictment number E14226601.1 you have been sentenced as a serious offender.
64 Finally, by reason of your offending, you come within the provisions of the Sex Offenders Registration Act 2004. Pursuant to s34 of that legislation you will be subject to mandatory reporting for life. I will have my Associate hand you relevant documents in relation to your obligations under that Act. Would you please acknowledge receipt with your signature.
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