Director of Public Prosecutions v Boyle, Reilly Rasmus (a pseudonym)
[2010] VCC 1707
•6 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REILLY RASMUS BOYLE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE WOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 September 2010 | |
DATE OF SENTENCE: | 6 October 2010 | |
CASE MAY BE CITED AS: | DPP v Boyle, Reilly Rasmus (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 1707 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentence: Incest with natural daughter – 11 counts; Indecent act; Attempted incest; Intentionally cause injury; Administering drug for sexual purposes – 3 Counts; Threat to kill; Reckless conduct endangering life; Assault police; Pleas of guilty; 11 years 5 months’ imprisonment; 8 years 5 months’ non-parole; S.6AAA declaration: 14 years’ imprisonment; 10½ years’ non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Ellul | Office of Public Prosecutions |
| For the Accused | Mr J Gullaci | Victoria Legal Aid |
HIS HONOUR:
1 On 22 September 2010, you, Reilly Boyle[1], pleaded guilty before me to eleven counts of incest, one count of attempted incest, one count of indecent act with a child under the age of 16, one count of intentionally causing injury, three counts of administering a drug for the purposes of sexual penetration, one count of making a threat to kill, one count of reckless conduct endangering life, and a summary offence of assault police.
[1] A pseudonym
2 The maximum penalties for these offences prescribed by Parliament are as follows:
§ incest, 25 years’ imprisonment;
§ attempted incest, 20 years’ imprisonment;
§ indecent act with a child under the age of 16, 10 years’ imprisonment;
§ intentionally causing injury, 10 years’ imprisonment;
§ administering a drug for the purposes of sexual penetration, 10 years’ imprisonment;
§ making threats to kill, 10 years’ imprisonment;
§ reckless conduct endangering life, 10 years’ imprisonment;
§ assault police, 5 years’ imprisonment.
3 You have no prior convictions.
Summary of Offending
4 You were born on 25 February 1975 and were therefore thirty-four years of age at the time of the offending.
5 Nawwar Abboud[2] is your de facto partner and the mother of Zafira Boyle[3], the complainant, who was born on 22 October 1997 and was therefore about twelve years old at the time of your offending.
[2] A pseudonym
[3] A pseudonym
6 You met the complainant’s mother in Australia in 1994. You are of Cook Islands and Irish descent and were born in New Zealand, and I gather that Nawwar is also of Cook Islands descent. In about 1996, when you were aged 21, you left New Zealand and came to Melbourne to locate your father, where you met Nawwar. You commenced a relationship, and the following year, 1997, returned to New Zealand, where the complainant, Zafira, was born on 22 October 1997 in Wellington. In late 1998, Nawwar and Zafira returned to the Cook Islands because your relationship had terminated.
7 However, in 2004, Nawwar and yourself reconciled in Melbourne, and you purchased a property in Pakenham which became the family home.
8 Initially, Nawwar’s sister and her boyfriend lived with you and your family. According to answers provided by you in the record of interview, and accounts given by you to Mr Cummins, consultant psychologist, your sister-in-law’s boyfriend began making inappropriate acts towards Zafira, which excited you. In September 2009, Nawwar’s sister and her boyfriend left the premises because, as they were both unemployed, they were unable to contribute to household expenses. Shortly after their departure you began to sexually abuse Zafira.
9 Your offending was categorised by the learned prosecutor in her opening as follows.
The First ‘Lesson’ in the Lounge Room – Charges 1–4
10 Charge 1 concerned a count of incest whereby you inserted your penis into Zafira’s mouth. Count 2, a second count of incest, whereby you licked Zafira’s vagina with penetration. Count 3, indecent act with a child under the age of 16, whereby you licked Zafira’s breasts. Count 4, a count of penile penetration of her vagina.
The Incident in the Study – Charges 5–9
11 On separate occasions between 1 September 2009 and 1 February 2010, you sexually abused Zafira in the study. On the first occasion you licked her vagina, penetrating it with your tongue (Charge 5, incest). This is a representative count, as is Count 6, incest, whereby you inserted your penis into her mouth, and Count 7, this is also a representative count, whereby you inserted your penis into Zafira’s vagina. These are representative counts because, according to Zafira, these assaults took place at least once a week, and sometimes twice a week, totalling approximately 50 events where all three types of penetration would occur during each event.
12 All of these offences were committed within your study.
13 Count 8 is one of attempted incest, whereby you sought to achieve anal penetration of Zafira, but she kicked you and you were unable to successfully penetrate her anus, whereafter you penetrated her vagina with your penis (Charge 9, incest).
14 Prior to the assaults in the study you caused to be administered to Zafira, for the purpose of sexual penetration, marijuana (Count 12), alcohol (Count 13), and pills (Count 14). Zafira said the marijuana made her feel weird. She would cry for no reason, and it would make her do things without knowing why she was doing them. According to her, the inhalation of marijuana made her dizzy, whereupon you started to penetrate her. She added that the alcohol made her happy and made her laugh a lot, which also would occur prior to penetration. Insofar as the pills are concerned, according to Zafira you told her that you were giving her pills for a headache which she did not have, and that the pills would make her feel lazy. Again, this occurred immediately prior to penetration.
15 In your record of interview you admitted the administration of these drugs for the purpose of sexual penetration.
The Incident in the Parents’ Bedroom – Charges 10 and 11
16 On one occasion you had Zafira in your bedroom and inserted your penis into her vagina (Charge 10). It was painful for her, and she started screaming. In an attempt to stop her screaming, you put your hand over her mouth, then punched her on the arm, then on the hip, and finally on the leg (Charge 11, intentionally causing injury). The injury was pain, and also bruising.
The Incident of Digital Penetration whilst wearing a glove – Charge 15
17 Zafira stated that on one occasion you were poking your finger up her vagina whilst wearing what she described as “a doctor’s glove except it was white”. This is a count of incest. You made admissions regarding this count in your interview with the police.
Incest – Ejaculating into Zafira’s Mouth – Charge 17
18 Zafira also disclosed an incident in the family home where you inserted your penis into her mouth and ejaculated into her mouth.
Incest – Ejaculating into Zafira’s Vagina – Charge 18
19 Zafira also told police during her VATE interview of an incident in the family home where you inserted your penis in her vagina until you ejaculated in her.
20 All of these assaults took place when Zafira’s mother was at work and you were looking after her.
The Revelation
21 On 30 January 2010, you made an innocuous comment about dinner in front of Zafira and her mother. Zafira began to cry. Her mother tried to console her and attempted to find out what was wrong, but Zafira refused to tell her. Nawwar sent Zafira to her room, where she hoped to speak privately. You then followed, and said “Do you want me to get a knife and kill someone?” Nawwar then left the room, and Zafira went to the kitchen and cleaned the dishes, at which time you said to her “You better think about what you’re going to say or you’re gonna kill us all”. Zafira took this to mean that you would kill her and her mother and yourself (Charge 16, a threat to kill).
22 On Monday, 1 February 2010, whilst Nawwar was driving Zafira to school, she asked of her why she was crying the previous Saturday night. Zafira told her mother that you had been sexually abusing her, whereupon Nawwar drove home with Zafira to pack some of their belongings so they could leave the family home and seek assistance. While they were doing this you arrived home early from work. You then questioned Nawwar about what they were doing, and she and Zafira got into Nawwar’s car and drove away. You kicked their car as they left, and chased them.
23 As you were driving north along Army Road you spotted Nawwar and drove your vehicle onto the wrong side of the road, straight towards them, thereby endangering their lives. This caused Nawwar to apply the brakes heavily until the vehicle stopped, in order to avoid a collision. These are the circumstances of Charge 19, reckless conduct endangering life. You then stopped your vehicle in front of Nawwar’s vehicle and gave her an opportunity to drive around you. You then chased her for approximately five minutes until she drove into a service station in Army Road, Pakenham, where the attendant allowed her and Zafira to hide in the office out the back until the police arrived.
24 While waiting for the police to arrive, you placed a suicide note in Nawwar’s vehicle. Police arrived and spoke to Nawwar. As a result of attending the service station, police, including Constable Stephen Clark, attended at your home address to conduct a welfare check upon you. Upon seeing police outside your home you ran out, holding a large kitchen knife in each hand with blades approximately 30-centimetres long, and said to police “Shoot me, I’ve done something bad”. Constable Clark, upon seeing the knives, feared for his own safety and that of his colleagues, and retreated and drew his firearm. This is a summary charge of assault police. While retreating, one of the police members fell over, ripped his pants, and cut his leg, and you were then persuaded to drop the knives and were arrested.
25 During the course of her VATE evidence taken on 1 February 2010, Zafira said that you began assaulting her sexually in September 2009 shortly after her aunt and her aunt’s boyfriend left the Pakenham address. According to her, you started by saying to her that you would give her lessons on “How you grow up and you have your own boyfriend and do things with him”. She thought that you were giving her a lesson where you would talk, but instead of talking you performed these physical acts upon her. She added that once the lesson ended regarding what was right and wrong for you to do with your boyfriend sexually, you would then do it to her over and over again.
26 A record of interview was conducted with you and police on 2 February 2010, which covers 91 pages. Although it was conceded by your counsel that in some of the answers you attempted to minimise your offending – that is, for instance, by claiming to have no memory of ejaculating in Zafira’s mouth or of the attempted penetration of her anus – by and large you were forthright and truthful in the answers which you provided. You conceded that you had abused her over the period she alleged, and, in answer to Question 313, that you became a monster (a description repeated to Mr Cummins, a clinical psychologist), and, further, in answer to Question 427, that you administered the substances for the purpose of facilitating sexual conduct with Zafira.
27 A Victim Impact Statement of Zafira Boyle was provided to me yesterday. It is not in sworn form but notwithstanding the provisions of Section 95A of the Sentencing Act, your counsel does not object to my taking note of its contents in order to assist me in determining an appropriate sentence in all the circumstances. I do not propose to read into the transcript the contents of the Statement, save to say that the physical and emotional effects upon Zafira are, as one would readily appreciate, substantial, and it would appear permanent. She has no desire to see you ever again and refers to your gross breach of trust and her discomfort at the thought of being close to any male person.
Personal Circumstances
28 I turn now to your personal circumstances. You were born on 21 February 1975 in New Zealand. I was informed that your father is Irish, whilst your mother is Maori or a Cook Islander. Your parents separated when you were two years of age and your father apparently travelled to Melbourne, where he passed away in July last year. You were two when your parents separated and were sent to the Cook Islands to live with your grandparents between the ages of two and seven years. This you identify as the most stable period of your life. You had no contact with your parents during that period.
29
Aged seven, you returned to New Zealand where you lived with an aunty during the week and your mother at weekends. According to the report of
Mr Cummins, consulting clinical and forensic psychologist, between the ages of eight and twelve you were sexually abused by a male who was approximately ten years older than you and who shared your bedroom at your aunt’s address. You did not make a complaint about these assaults but recently wrote to your mother and informed her. Between the ages of eleven and twenty-one, you lived with your mother and stepfather in New Zealand where, according to your counsel, you witnessed repeated domestic violence. When aged twenty-one, in 1996, you travelled to Melbourne to seek out your father where you met the complainant’s mother. You formed a relationship with her and in 1997 returned to New Zealand with her, until about 2005.
30 Zafira was born on 22 October 1997 in Wellington and your relationship with her mother broke down the following year. She, together with your daughter, returned to the Cook Islands. In late 2004, you reconciled with Nawwar in Melbourne and this continued until your arrest early this year. You had purchased a property in Pakenham which was the subject of a mortgage, but throughout your time in Melbourne you had regular employment in the nature of processing work. Similarly, whilst in New Zealand, between the ages of seventeen and twenty-one, you were in regular employment in a supermarket and in the construction industry.
31 Your education was to primary level in the Cook Islands and then to Year 11 standard in New Zealand, where you left school at the age of about sixteen-and-a-half. You described yourself to Mr Cummins as a “workaholic”.
32 Mr Cummins saw you at Port Phillip Prison on 29 August 2010 and his report is dated 16 September 2010. In short, Mr Cummins reports that you do not present as being psychotic or schizophrenic, nor did you present as having any personality disorder. He assessed that you were not anti-social or anti-authoritarian, nor did you exhibit an attitude problem, nor did you present as being paranoid. Rather, he describes you as:
“He presented a being of normal, although slightly below-average intelligence … He did not present as being agitated or anxious … .”
33 You were moderately depressed and significantly, he stated:
“His depressive symptomology was related to both his sense of guilt and to his sense of betrayal in relation to his daughter and her mother.”
34 It is apparent from Mr Cummins’ report that you are ashamed and sorrowful for your offending and moreover, informed him:
“At the time I couldn’t believe what I’ve done, but now I’ve accepted what I’ve done. I’ve got a problem.”
35 Mr Cummins assessed you to have a low risk of re-offending on two assessment criteria and that you had a moderate risk of re-offending using the substance abuse criteria. It is his opinion that your offending is situationally motivated, which implies in an overall sense, the risk of you re-offending is most probably in the low risk category. Mr Cummins notes that you are a social drinker, that you have no full siblings but you have a half-sister and a half brother with whom you have little contact, because your half-sister, although living in Melbourne, was adopted out at an early age and your half-brother lives in the Cook Islands looking after his mother and father.
36 According to the history Mr Cummins took from you, you informed him that Nawwar’s sister and boyfriend were living in your home until shortly before the offending took place. Whilst they were living there, Nawwar’s boyfriend had an attraction to Zafira and in your presence you saw him rubbing her leg and talking to her about sex and about looking after herself. This, according to you, activated a sexual interest in Zafira by yourself and you began touching her and ultimately had sex with her. You stated to Mr Cummins that you tried to stop this from happening “But I let the beast in me get out of control. I was a different person when I was doing this.” The expression “Letting the beast out” in you is similar to the expression, “I became a monster” which you referred to in answer to Question 313 on the Record of Interview. In short, it is Mr Cummins’ opinion that you are truly remorseful.
Sentencing Submissions
37 The prosecution contended that yours is the worst case of breach of trust, being between a father and a daughter. It destroys the family unit and steals away the childhood of the complainant and has a serious impact upon her for many years to come. Secondly, that the offending was grotesque, insofar as it involved all forms of penetration of the child. Charges 5, 6 and 7 are representative counts and though you are not to be punished for these other matters, they reflect the wider context of your offending. As such, your offending was not an isolated incident and is aggravated by the fact on three occasions you resorted to the use of marijuana, alcohol and pills in order to facilitate sexual penetration of Zafira. Further, on one of the occasions you used force to make her comply with your demands. This situation is exacerbated by the fact that when Zafira had a chance to tell her mother of the abuse you threatened to kill her, her mother and yourself in an attempt to stop disclosure occurring. Once disclosure had occurred, you chased Nawwar and Zafira in their car, pursuing them in yours, and drove in a manner that endangered their lives and yours. They were clearly fearful in seeking refuge in the service station and when police arrived you confronted them, holding two knives.
38 The circumstances of your offending are extremely serious, as was conceded by your counsel.
39 In mitigation, Mr Gullaci submitted, firstly, that you pleaded guilty at the earliest possible opportunity, being at the committal mention on 28 May 2010. The committal was by way of a hand-up brief on that date and it was submitted that as a consequence neither the complainant nor her mother would be subjected to the ordeal of cross-examination at a trial.
40 Secondly, it was submitted that you made full and frank disclosure to the police in your Record of Interview, save that in respect of the count of ejaculation in Zafira’s mouth (Charge 17) and Count 8, attempted incest by penetration of Zafira’s anus, you admitted all of the allegations put against you. It was said on your behalf in respect of these contested matters, your lack of admission was attributable to your lack of knowledge of the full circumstances.
41 Thirdly, it was submitted that you are thirty-five years of age and a man without prior convictions.
42 Fourthly, that imprisonment upon you would be more onerous than upon others, insofar as you are in protective custody at Port Phillip Prison, that it was your first time in custody and, most importantly, that you had no visits from relatives or no phone calls. I note that your mother has written to you from her place of residence in the Cook Islands.
43 Fifthly, it was submitted that you have expressed genuine remorse, reflected by your pleas of guilty, your admissions to police and the evidence of Mr Cummins in his report to which I have referred.
44 Sixthly, it was submitted that you present as a low risk of re-offending and reliance is placed upon Mr Cummins’ report to which I have referred. Mr Gullaci referred to the circumstance of your daughter being the only victim and that it is extremely unlikely that you will have further contact with her. The prosecution counterbalanced this argument with the prospect that although you are now thirty-five years of age, upon your release you would be physically able to have a further child. However, to all intents and purposes, I think that the submission made by Mr Gullaci is forceful, because your offending of your daughter was opportunistic and, balanced with the remorse which I find to be genuine, I think your risk of re-offending is quite low.
45 Finally, Mr Gullaci relied upon the fact there were no outstanding matters put against you.
46 Mr Gullaci submitted that you have good prospects of rehabilitation based upon the above factors and that although your offending was serious and you are to be sentenced as a serious sexual offender and conceding, as he did, that genuine deterrence and specific deterrence had a role to play, as is the fact that there must be some degree of cumulation in respect of these offences by reason of they being separate, nonetheless, the principles of totality require that the overall sentence be moderated so as not to impose upon you a sentence which is crushing and one which deprives you of a sense of hope that your rehabilitation prospects may be fulfilled.
47 I invited the Crown to indicate its instructions as to the appropriate sentencing range. In response, it was submitted that the head sentence range was between eleven to thirteen years, with a non-parole period between eight and ten years’ imprisonment. Both the Crown and your counsel agreed that the seriousness of the offending called for an immediate custodial sentence. Initially your counsel expressed a wish to be heard as to the appropriate sentencing range, although on reflection declined. In his defence, I note that when he expressed a wish to be heard, I invited him to do so, but stated that it was not my practice to invite defence counsel to do so, because of the potential for embarrassment. Mr Gullaci then declined to make any further submissions.
Sentencing Considerations
48 Your counsel, Mr Gullaci, conceded that your offending was extremely serious because it took place over a five-month period upon your natural daughter at which time she was twelve years of age and you were thirty-four, that it constituted a gross breach of trust, and that drugs were administered to her for the purpose of your sexual gratification. He further conceded that general deterrence and specific deterrence had a function in the sentencing process, and, by further concession, that a degree of cumulation was necessary, but added that because of the extent of your offending, it was unnecessary to impose a disproportionate sentence pursuant to s.6D of the Sentencing Act because the sentence which I would impose, by reason of its length, would serve as adequate protection to the community.
49 The prosecution provided me with a copy of the Court of Appeal decision in DPP v TDJ; DPP v MS [2009] VSCA 317, wherein, at paragraphs 15-17, the Court of Appeal identified salient features of offending such as yours. The Full Court of the Supreme Court of Victoria in 1992, in R v Wayland, noted, and I quote:
“The undoubted fact is that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect both to specific and general deterrence.”
50 I observe that this public indignation has increased dramatically during the period from which the Court spoke in 1992 until the current time. Parliament has proclaimed that there is a high incidence of sexual violence within society: see Crimes Act, s.37B.
51 The Court of Criminal Appeal noted in the following year, R v Sposito (unreported) 8 June 1993, and I quote:
“A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.”
52 In 1996, the Court of Appeal in R v Wakime [1997] 1 VR 242 at 244, again adverted to the serious nature of your offending, being an offence of incest, where the then President stated:
“This court has said that it ought not turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children. As the court has indicated in the past, if fathers wish to claim guardianship rights over their children, they have an overriding responsibility to assume their obligations to protect, inter alia, the moral welfare of those children. Incest simply undermines the role of guardianship and destroys the entire concept of family unity, and that is why this court in particular is continually reminding itself and other courts that incest ought to attract condign punishment.”
53 In the following years, 1997, in the case of Fergeus (unreported) 13 October 1997, and again in 1998 in R v WEF [1998] 2 VR 385. Similar observations were made and repeated by the Court of Appeal in DPP v VH [2004] 10 VR 234.
54 It is clear from these authorities that the principal sentencing consideration is that of general deterrence, protection of the community, denunciation of the offender’s crimes, and specific deterrence. Rehabilitation plays a subordinate function to those considerations.
55 These cases do not include the aggravating circumstance present in yours, of the administration of a drug for the purposes of sexual penetration. Three of your offences are of this nature. That was a circumstance present in DPP v TDJ, where the complainant was administered alcohol and a tablet.
56 The prosecution contended that offending of the nature effected by you is the worst case of breach of trust between father and daughter. All forms of sexual penetration, save for the unsuccessful act of penetration of the complainant’s anus were committed by you upon Zafira. Counts 5, 6 and 7 are representative counts, the significance of which was explained by the Court of Appeal in R v SBL [1999] 1 VR 706 at 725 to the effect that:
“[T]he fact that a count is agreed to be a representative, specimen or sample count is an aggravating circumstance. ... Not only does the fact that a count is agreed to be representative preclude it being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context.”
57 On one of these occasions you used force to cover the mouth of the complainant, leaving her bruised, being Count 11, and, further, you made a threat to kill the complainant and her mother to prevent disclosure. As the complainant was driven by her mother in an attempt to protect her, in your vehicle you chased your car at them in a manner by which their lives were endangered. This is Count 19.
58 The prosecution provided me with copies of the decisions of the Court of Appeal in GJW v R [2010] VSCA 193, OAA v R [2010] VSCA 155 and DPP v TDJ; DPP v MS [2009] VSCA 317. I have closely examined all of these decisions in my consideration of what is a just punishment for your offending. I have also read the decision of the Court of Appeal in R v Khem [2008] VSCA 136 in which the failure to wear a condom was held to be an aggravating factor. In your case, you have committed five counts of penile penetration of Zafira’s vagina without wearing a condom. One being a representative count and another being an instance of ejaculation during penetration.
59 The prosecution has provided me with the statistics of the Sentencing Advisory Council, being the latest available for the offences of incest, committing an indecent act with a child under the age of 16, threat to kill, and intentionally or recklessly causing injury. I have studied these statistics to assist me in determining what is an appropriate sentence for you, bearing in mind the limited utility such statistics have; namely, the lack of detail as to whether offenders had prior convictions, pleaded guilty, and their own peculiar personal circumstances, and I particularly note the comments of Ashley JA in DPP v TDJ.
60 The prosecution contended that the sentencing range for these offences was a head sentence between 11 and 13 years’ imprisonment, with a non-parole period of between 8 and 10 years’ imprisonment.
61 I observe that of the three Court of Appeal decisions, only GJW was one in which the prisoner pleaded not guilty. The Sentencing Act requires that appropriate discounts be afforded where a person pleads guilty. In my view the discount must be a palpable one, and hence the Sentencing Act in s.6AAA requires me to state the sentence which I would otherwise impose had you pleaded not guilty and been found guilty by a jury of these offences.
62 That said, apart from your lack of convictions before you committed these offences, and, associated with it, your overall favourable work and family history, nothing can be said to mitigate the circumstances in which you offended against your daughter. Your crimes were grotesque and debauched. However, as your counsel noted, apart from your denials of ejaculating in Zafira’s mouth and attempting to have anal sex with her, you made full admissions in relation to all of your offending. It is clear from the report of Mr Cummins that you are genuinely remorseful.
63 Other factors are that you are currently in protective custody at Port Phillip Prison, though I expect that will alter when you are transferred to Ararat Prison, as inevitably you will be, and that prison will be difficult for you, more so than others, because of your isolation from family and friends. I accept that your risk of re-offending is low, in Mr Cummins’ assessment, in that overall you have fair to good prospects of rehabilitation.
64 You will be convicted on all counts and sentenced as follows:
65 Count 1: four (4) years’ imprisonment.
66 Count 2: four (4) years’ imprisonment.
67 Count 3: one (1) year’s imprisonment.
68 Count 4: four (4) years’ imprisonment.
69 Count 5: five (5) years’ imprisonment.
70 Count 6: five (5) years’ imprisonment.
71 Count 7: five-and-a-half (5½) years’ imprisonment.
72 Count 8: three (3) years’ imprisonment.
73 Count 9: four (4) years’ imprisonment.
74 Count 10: four (4) years’ imprisonment.
75 Count 11: one-and-a-half (1½) years’ imprisonment.
76 Count 12: one-and-a-half (1½) years’ imprisonment.
77 Count 13: one-and-a-half (1½) years’ imprisonment.
78 Count 14: one-and-a-half (1½) years’ imprisonment.
79 Count 15: four (4) years’ imprisonment.
80 Count 16: one-and-a-half (1½) years’ imprisonment.
81 Count 17: four-and-a-half (4½) years’ imprisonment.
82 Count 18: four-and-a-half (4½) years’ imprisonment.
83 Count 19: one-and-a-half (1½) years’ imprisonment.
84 To the summary offence of assault police, 6 months’ imprisonment.
85 By reason of your conviction on Counts 1 and 2, in respect of Counts 3, 4, 5, 6, 7, 8, 9, 10, 15, 17 and 18 you fall to be sentenced pursuant to s.6B of the Sentencing Act as a serious sexual offender and further that, pursuant to s.6F of the Act, your status to be so recorded. As a consequence, s.6D of the Sentencing Act requires that the paramount sentencing consideration is the protection of the community, and by s.6E of the Act, that the sentences be cumulative unless I otherwise order.
86 It was conceded by the prosecution that the number of offences you fall to be sentenced, and the sentencing principles of totality are such that total cumulation is unnecessary to ensure the interests of the community are adequately safeguarded, because the length of the sentence of imprisonment which I propose to impose, as your counsel conceded, must be a considerable one.
Concurrency
87 Count 7 of five-and-a-half years’ imprisonment is the base sentence. I direct that one (1) year of the sentences imposed on each of Counts 5 and 6 and that four (4) months of the sentences imposed on each of Counts 1, 2, 4, 9, 10, 15, 17 and 18 and that three (3) months of the sentence imposed on Count 8 and that two (2) months of the sentence imposed on Counts 12, 13, 14 and 19 and one (1) month of the sentences imposed on Counts 3, 11 and 16 and the summary offence be served cumulatively on each other and upon the sentence imposed on Count 7.
88 This results in a total effective sentence of eleven (11) years and five (5) months’ imprisonment, and I fix a non-parole period of eight (8) years and five (5) months.
89 The counts of incest, indecent act with a child under the age of 16, administering drugs for the purpose of sexual penetration, and attempted incest, are all charges relevant to your classification as a serious sexual offender.
90 Pursuant to the provisions of the Sex Offenders Registration Act 2004 s.34(1)(c), these offences, being Class 1 offences, require that you be registered under that Act for life. Notice to that effect is to be served on you and acknowledged by you in the presence of my Associate. You will now do so.
91 I record that you have served a period of 247 days in prison awaiting this proceeding, and I direct that the records of the court record that you have served that period as part of the sentence which I have today imposed. That is to say, the period of 247 days is to be reckoned as part of this sentence pursuant to the provisions of s.18 of the Sentencing Act.
92 Further, pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty to these offences I would have imposed a sentence of 14 years’ imprisonment and set a non-parole period of 10½ years in the event that you were convicted by a jury of these counts.
93 Finally, I have made an order that you supply a forensic sample of your saliva for retention by the authorities on its databank. I do so for the reasons that you do not oppose the application, the seriousness of your offending, and the fact that your records ought to be retained in the public interest.
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