Director of Public Prosecutions v Bridges (a Pseudonym)
[2016] VCC 2056
•23 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEITH BRIDGES[1] |
[1] A pseudonym
---
| JUDGE: | HER HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 August, 22 December 2016 |
| DATE OF SENTENCE: | 23 December 2016 |
| CASE MAY BE CITED AS: | DPP v Bridges (a Pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 2056 |
REASONS FOR SENTENCE
---Subject: Criminal Law, Sexual Offences
Catchwords: Indecent assault, sexual penetration with a person aged between 10 – 16 year under care, supervision or authority and incest
Cases Cited: R v Khem [2008] VSCA 136, R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194, DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, Stalio v The Queen [2012] VSCA 120, DPP v CPD [2009] VSCA 114, DPP v Toomey [2006] VSCA 90, DPP v OJA (2007) 172 A Crim R 182, Bauer (a pseudonym) v R [2015] VSCA 55, R v Yates [1985] VR 41, R v Cumberbatch (2004) 8 VR 9, Beck v R [2005] VSCA 11, HMcL v R (2000) 174 ALR 1, Gordon v The Queen [2013] VSCA 343
Sentence: 9 years’ 9 months’ imprisonment and registrable sex offender for life---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Stefanovic | OPP |
| For the Accused | Mr J. Fitzgerald for plea | VLA |
Ms D. Dempsey for sentence
HER HONOUR:
1At the outset, I advise that I am using a pseudonym for the names of the accused and the complainant in these reasons. The accused will be known as Keith Bridges. The complainant will be called Ms J. I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2]. That is the reason for the use of pseudonyms.
[2] Section 4 Judicial Proceedings Reports Act
2Keith Bridges, you have pleaded guilty to 3 charges of indecent assault, an offence with a maximum sentence of 5 years' imprisonment; 3 charges of sexual penetration with a person aged between 10 and 16 years under your care, supervision or authority, an offence with a maximum sentence of 15 years' imprisonment; and 3 charges of incest, an offence with a maximum sentence of 20 years' imprisonment. All maximum sentences are at the time of the offences taking place.
3I sentence you on the basis of the Prosecution Opening[3], which is an agreed summary. The offending occurred between 1982 and 1996, and involved you continually sexually abusing your stepdaughter, Ms J. I will outline the background to your offending, and the offences themselves.
[3] Exhibit A
4You began an intimate relationship with Ms J's mother in 1979. She had two daughters, Ms J, then aged eight, and a younger daughter. In 1982, when
Ms J was aged ten, you put your hand up her bathers, and after fondling her, inserted your finger into her vagina. This is Charge 1 of indecent assault, and is representative of four other specific occasions on which you committed this offence. You told Ms J this was a little secret between you, and thereafter in that year, you touched her almost daily in some intimate way.5Ms J turned 11 in October 1982. In that year after she turned 11, you inserted your penis into her mouth, and taught her "how to do it". You ejaculated into her mouth and made her swallow your semen. This is Charge 2 of sexual penetration with a person aged between 10 and 16 under care, supervision or authority, and is representative of three other specific occasions on which you committed this offence. Ejaculating into her mouth is an aggravating feature of this charge.
6Between January and February 1983, you took Ms J into the spare room one night and touched her breasts and genitals, including inserting your finger in her vagina[4], before licking her vagina. This last sexual act is Charge 5 of indecent assault and is representative of two other specific occasions on which you committed this offence. At the same time, you inserted your penis into Ms J's mouth[5]. You heard her mother approaching and left the room to speak to her and to lie about where Ms J was. Ms J was still aged 11.
[4] Part of charge 1
[5] Part of charge 2
7Between January and October 1983, while Ms J was still 11, you told her to stay home from school. You gave her alcohol and she became drunk. These were both tactics you employed on a number of occasions to give you unfettered access to your stepdaughter to sexually gratify yourself. Supplying her with alcohol is an aggravating feature of this occasion. Ms J put on lingerie you had given her, then you inserted your penis into Ms J's mouth[6]. You again ejaculated into her mouth and made her swallow your semen, a further aggravating feature of this occasion.
[6] Part of charge 2
8On another occasion in 1983, while she was still 11, you again told her to stay home from school and gave her alcohol, again an aggravating feature. You told her to take off her clothes and rubbed your penis on her genitals and inside the lips of her vulva until you ejaculated. This is Charge 3 of indecent assault.
9On an occasion in 1984, when Ms J was in Year 7, you told her to stay home from school again and touched her intimately, such that she became sexually aroused. I have no doubt that occurred because of your sexual activity with her and grooming of her over the previous two years. You then left the house abruptly and went to the pub. Ms J then used a hairbrush to masturbate herself, causing bleeding. When you came home you were angry, because as you put it, you wanted to be her "first". You told her to take off her clothes, and then had penile sexual intercourse with her until you ejaculated inside her. This was the first time you had full intercourse with her, and is the subject of Charge 4, sexual penetration with a person aged between 10 and 16. Charge 4 is representative of four other specific occasions on which you committed this offence. Failure to use a condom[7], and ejaculating inside her vagina, are both aggravating features of this charge.
[7]R v Khem [2008] VSCA 136
10Later, in 1984, when Ms J was still 12, you gave her two serepax tablets before proceeding to insert your penis into her vagina[8]. Supplying her with drugs is an aggravating feature of this occasion.
[8] Part of charge 4
11On another occasion in 1984, Ms J was home from school again, and, in her mother's bedroom, you dressed her in a camisole and told her to put on her mother's makeup. You touched her breasts and genitals, including inserting your finger into her vagina[9], licked her vagina[10], and inserted your penis into her vagina[11].
[9] Part of charge 1
[10] Part of charge 5
[11] Part of charge 4
12It was in 1984 that Ms J began menstruating. She was aged 13. On one occasion in 1984, you inserted your penis into her vagina[12] and told her that you wanted her to get pregnant. Failure to use a condom[13] and ejaculating inside her vagina, are both aggravating features of this occasion.
[12] Part of charge 4
[13]Khem ibid
13Ms J's mother was a school principal. In 1983 and 1984 she was away on two or three occasions to attend school camps. On one of these occasions Ms J, then aged 12, got into bed with you as she was "desperate for cuddles". Again, I have no doubt that occurred because of your sexual activity with her and grooming of her over the previous two years. A number of sexual acts took place, including you inserting your finger in her vagina[14], licking her vagina[15], inserting your penis into her mouth[16] and into her vagina[17] until you ejaculated. Failure to use a condom[18], and ejaculating inside her vagina, are both aggravating features of this occasion.
[14] Part of charge 1
[15] Part of charge 5
[16] Part of charge 2
[17] Part of charge 4
[18]Khem ibid
14In 1985, when Ms J was aged 13, her mother and sister were in bed, and you told Ms J to come out to the lounge room. Then you inserted your penis into her mouth and urinated, forcing her to drink it. This depraved and humiliating act is an aggravating feature of this charge, Charge 6 of sexual penetration with a person aged between ten and 16.
15Sometime in 1985, when Ms J was aged 14, she took an overdose of tablets, and when taken to sick bay at her school, wrote a note to tell the teacher what you were doing to her. Ms J was taken to hospital and told a psychiatrist what was happening at home. She was admitted to the hospital for over three months. When Ms J chose not to return home, she became a ward of the State. Months after her first complaint, police were notified of her allegations. The prosecution opening refers to an investigation being opened ‑ ‑ ‑
16OFFENDER: Sorry Your Honour, but we have lost - cannot hear you.
17HER HONOUR: Yes, dial back in. Thank you, can you hear me again?
18OFFENDER: Yes I can.
19VOICE: Yes Your Honour.
20HER HONOUR: Thank you. I will just repeat the last sentence. When Ms J chose not to return home, she became a ward of the State. Months after her first complaint, police were notified of her allegations. The prosecution opening refers to an investigation being opened, but it appears you were not interviewed, and the investigation was discontinued, apparently on the basis that there was insufficient evidence.
21Pausing there in my recital of your offending, I need to record that the shocking failure to act on the part of numerous authorities with a duty of care to protect a child in that period of Victoria's history of dealing with sexual offence complainants is unfortunately all too common. Tragically, in the case of Ms J, that failure to protect her led to you probably having a sense of invincibility, and a feeling that you could get away with sexually abusing her, and so you continued to do so when you later regained access to her. It probably also led to her mother not believing her, and so also failing to protect her, although there may have been other matters operating on her mother, I cannot say. All I can say to Ms J is that the system has improved, and a 14-year-old now taking an overdose at school, telling a teacher, a psychiatrist, and government department charged with looking after children in their care, and the police, that she had been sexually abused by her mother's partner, would not be ignored, and should expect to be at the very least, fully investigated and, usually, prosecuted.
22Ms J's sense of betrayal must only have been intensified when you married her mother in June 1986, while Ms J was in the care of the Department.
23You got the opportunity to begin offending when, after Ms J had lived in a children's home for 15 months, she was released back into the ‘care’ of her mother and you. Before her mother would permit this, however, Ms J was told by her mother that she had to rescind her allegations and tell the authorities that she had lied. Under that sort of pressure, Ms J did so, and we now know, because of your pleas of guilty to these offences, that she had indeed been telling the truth.
24Within days of her returning home in January 1987, aged 15, you recommenced your perverted criminal activity, having her stay home from school, showing her a pornographic video, and touching her sexually, including inserting your finger into her vagina[19], and inserting your penis into her vagina. As you were then married to her mother, this was an act of incest, and is the subject of Charge 7. Failure to use a condom[20], and ejaculating inside her vagina, are both aggravating features of this charge.
[19] Part of charge 1
[20]Khem ibid
25In August 1987, Ms J again moved out of the family home, and after a short period in emergency accommodation, she was placed in the care of her aunty and uncle for 14 months. Sadly, this was also an abusive household, and no doubt for want of an alternative, Ms J wanted to return home. It seems the Department was more alert to the risks associated with her returning home, and so she was not permitted to do so. In 1988, she lived with her father and at age 16-17 repeated Year 10; not surprisingly, her studies had suffered for many years. After that, she began living with her boyfriend, whom she had met in the paediatric psychiatric ward in 1985.
26In 1991, when Ms J was aged 19, and no longer in the care of the Department, she returned to live with her mother and you and began Year 12. Within days of her returning home, you recommenced your perverted criminal activity, having her stay home from school, supplying her with alcohol, and engaging in sexual activity. This included sexual intercourse after which you ejaculated inside her. This is Charge 8 of incest and is representative of one other specific occasion on which you committed this offence. Although she was then over the age of 18, I am satisfied that the years of sexual activity and grooming had led Ms J to be in a powerless position. Failure to use a condom[21], and ejaculating inside her vagina, are both aggravating features of this charge.
[21]Khem ibid
27After about 6 months, Ms J left the home again, and did not complete Year 12. She lived with her boyfriend and his mother for a short time until she and her boyfriend moved into a flat together. In 1992, she and her boyfriend got married.
28Ms J did not see you or her mother for about 5 years. However, you were not yet finished with victimising her. Sometime in 1996, you and Ms J were speaking and you told her you missed her. You met up, and you took her back again to the family home, where the years of sexual abuse had taken place. You again put on a pornographic video, you again plyed her with alcohol, and you again performed sexual acts on her, including sexual intercourse, after which you ejaculated inside her[22]. That is Charge 9 of incest. Failure to use a condom[23], and ejaculating inside her vagina, are both aggravating features of this occasion.
[22] Part of charge 8
[23]Khem ibid
29Although Ms J was then aged between 24 and 25 years, I am satisfied that the years of sexual activity and grooming had led her to be in a powerless position, unable to resist you telling her that you missed her and feeling abandoned by you when you later drove her home.
30The specific occasions of sexual abuse alleged in the charges are to be seen against the background of weekly sexual abuse, often accompanied by the playing of pornographic videos, and the use of alcohol to get Ms J intoxicated. The sexual activity continued until around 1999/2000, when Ms J was aged 28-29 years of age. Her husband, who has an intellectual disability, was apparently aware of this.
31In 2014, Ms J again reported the abuse to the police, and this time, a proper investigation was pursued. In January 2015, you were interviewed and denied the offences; in September 2015, charges were laid; and in April 2016 you indicated your intention to plead guilty at a hearing in the Magistrates' Court.
32Your predatory, perverted behaviour was outrageous. It was even more so because you were in a parental position with Ms J, who was entitled to feel safe in her own home, and who instead became caught up in your web of sexual depravity from the age of 10 years until she was nearly 30. As the adult, you were believed, not the child you were continuously abusing, and you took advantage of your position of control and power, continuing into her adulthood. This was a gross breach of trust.
33I received a victim impact statement from Ms J[24], and the admissible parts of it were read out in court. It is a very sad story of a little girl who was badly abused, let down by all adults who came into contact with her, and is now estranged from her entire family ‘because of the [Keith] stuff’. Her family seem unable to grasp that she is not, and never was, at fault; that you are the guilty one, by your own admission.
[24] Exhibit B
34Ms J has graphically described feeling different to other children because she was ‘doing adult things’, being embarrassed by the physical manifestations of what you were doing to her, and feeling very sad, lonely and in pain. She describes becoming ‘your mistress’ at ten years of age. Being introduced to alcohol by you led to her drinking alcohol at school, even in Grade 6, causing her to be suspended. She describes herself now as an alcoholic.
35As an 11 year old, she deliberately gained weight and cut her hair to try and make herself less attractive, but that did not stop you. She felt hated by her mother, who, along with everyone else, did not believe her allegations. She self-harmed for many years, and is still on antipsychotic and antidepressant medication. Her education suffered as she missed so much school, repeated years, and moved to 6 or 7 different schools. She has never had any friends except her husband, and never had a job. She has three children, conceived through donor sperm, who she considers to be the only good things to have come out of her life but the Department is involved in their care, and not all her children are at home with her. She and her husband struggle financially, and she says the home is dysfunctional and all the children are in therapy. She herself only began seeing a psychologist in 2012. As her family have disowned her, she and her husband have had no support in raising the children, apart from her husband's now elderly mother.
36Ms J looks at the occupations of her biological parents - school principal and a manager - and you, her stepfather - a printer - and thinks that she could have achieved more and gone to university if she had had a normal childhood. She feels guilty for not achieving more, for being your ‘mistress’. Saddest of all, she says, "I still want my family back. But I never really had them." And that is because of you. You took away her innocence and her childhood. You turned her from Barbie dolls to pornography, alcohol and adult sexual activity.
37I want to say some things to Ms J. I am very sorry that the system let you down years ago. I cannot apologise for your mother, who will have to come to terms with her own conscience, but I can say that others, who are trained to protect children, and who are part of the criminal justice system, should have listened to you and done something sooner. Nothing I say or do can take away the pain and suffering you have endured, and continue to endure. But you have shown your inner strength by persisting with reporting the offending even when you were not believed at first, and you have been vindicated by the pleas of guilty that he said out loud. You should always remember that you are not to feel guilty; the only one who is guilty is the one who pleaded guilty to abusing you. Consider yourself as a strong person who has survived the abuse; you now have children who depend on you, and who should be your continued focus when things get too much to bear. I hope that now that this case has been dealt with, that there will be something brighter in the future for you, I wish you well.
38Returning to you and your offending, Mr Bridges: When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological[25], and which includes future harm[26]. In this case, the harm you caused to Ms J covers all of these aspects. She has clearly suffered considerably, and will continue to do so for some time.
[25]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[26]Adamson v R [2015] VSCA 194, [56]
39There are features present in your case that characterise the offences of incest and sexual penetration that you committed as serious:
"extreme invasion of the victim's person, exploitation of a vulnerable child, violation of societal norms; long-term and severe victim impact; serious breaches of the trust reposed in you by the child…; and an undermining of the familial roots of society".[27]
[27]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, [72]
40In order to pass a just sentence, I must assess the seriousness of your offending. What distinguishes worst case offending from mid-range offending is the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurred.
41In your case, I am satisfied that the offending involved multiple forms of penetration and numerous acts of depravity; took place over 15 years against a background of weekly abuse; began when the victim was aged 10 and you were aged 36; was accompanied by aggravating features as I have described; and was criminal behaviour in which you persisted even after it had been reported, and even after your victim was an adult.
42On the other hand, it is sadly the experience of this court that there are worse examples of this type of offence. For example, it is not alleged that Ms J was impregnated by you, even though that was an expressed wish of yours on one occasion, and you took no steps to avoid that happening on any occasion.
43I make the finding that your offending is not in the most serious category primarily because it did not result in pregnancy or sexually transmitted disease, and there was no overt violence beyond that involved in sexual activity perpetrated by an adult male on a child. However, because of the other features I have mentioned, I find that your overall offending is at the high end of the scale of seriousness. Your moral culpability is high.
44As has been pointed out by your counsel, there are however some factors that must be taken into account in your favour. The first of these is the fact that you pleaded guilty, and did so at the earliest opportunity after being charged. I accept that this shows that you now accept some responsibility for your offending, which you had not done at any earlier stage when the allegations were raised, and also demonstrates a level of remorse for the impact of what you did on Ms J. I also recognise that your pleas of guilty have not only saved the community the time and cost of a trial, but it has saved Ms J from the ordeal of giving evidence. As a result of your plea of guilty, the sentence I will impose will be less than would have been imposed had you been found guilty by a jury after a trial.
45Next, you have no criminal record alleged against you. That means that you are to be sentenced as a person who had not committed an offence before 1982. I note you have committed no other offences since 1996.
46Turning to your background, you are now aged 70 years. You had a happy childhood growing up with both parents and two younger brothers. After leaving school at the end of Form 5, you completed an apprenticeship as a printer, and worked at that trade for your entire working life to age 55 when you stopped work and went onto a Disability Support Pension. You describe yourself as being a nervous wreck at the time.
47At the age of 22, you had suffered what you described as a nervous breakdown, and spent 4 months in hospital receiving electro-convulsive treatment. In 1971 at the age of 24 you married an 18-year-old woman and had two sons over the next three years. The marriage broke down in 1978 and you had custody of the children. Your wife took her own life about 18 months later. You moved back to your parents’ house with your sons, but by then both of your parents were drinking heavily. You met another woman through Parents Without Partners and moved in with her briefly with your sons.
48In 1979, you met Ms J's mother, also through Parents Without Partners, and you moved into her house in the same year. In 1980, your sons went to live with one of your brothers, as apparently there was tension between them and Ms J's mother. You lost contact with them for quite some time. You began consuming alcohol to excess most nights and only reduced your consumption in 2012, which was the same year that you and Ms J's mother separated. You have continued to have contact with your brothers and have now reconciled with your sons as adults.
49In 2012, you had to call one of your sons to get emergency services and you were taken to hospital. A medical report from your doctor dated 20 May 2016[28] refers to conditions of acute myocardial infarction, angina, cardiomyopathy, gout, and insomnia in 2012. In 2013, conditions noted are gastro-oesophageal reflux disease (GORD), and in 2014, you were diagnosed with colon cancer and Parkinson's disease. In 2015, conditions noted are depression, continuing GORD and obesity. The letter accompanying the report refers to your poor mobility and high risk of falls, that you walk slowly and steadily using a four-wheeled walker, and have a poor prognosis when considered together with your history of heart disease and bowel cancer, complicated by severe depression.
[28] Part of Exhibit 4
50That report brings me to the most important factor to be taken into account in mitigation of this very serious offending - your current state of health, both physical and mental.
51Because of your Parkinson's disease, you have deteriorated physically and become housebound, living alone, and before the plea you spent most of your time in bed watching TV. You had some home help provided by the council. I will return to your current physical ailments shortly. Assessments carried out for the plea hearing were conducted in your home because of your extremely limited mobility.
52You were assessed by psychologist Carla Lechner in June 2016[29]. She considered you to be currently depressed at a clinical level, for which you take medication, and she noted at least two lengthy psychiatric admissions in the past. You described being depressed most of your life. On testing, Ms Lechner found that your score fell in the extreme range, which she thought was consistent with your presentation. You told her that apart from colon cancer, you also had cancer on your kidney; although that was not in the medical report from your doctor, it has recently been confirmed on testing. You also told Ms Lechner that you had been diagnosed with cirrhosis of the liver; that was also not in the medical report from your doctor. Ms Lechner formed the view that on account of your physical and mental health problems, you will find time in custody more onerous than the general prison population.
[29] Exhibit 2
53In relation to the offending, she reported that you told her that you were sexually attracted to Ms J, that "it just happened", that you believed it to be consensual, and that the offending occurred after she reached puberty, with you denying that you had a sexual interest in children. Pausing there, I reject your statements. Correctly, Ms Lechner pointed out that if the offending started before puberty, which it did, your behaviour would fulfil the criteria of paedophilia. She found you were unable to explain why you had persisted with the offending, even after the Department of Human Services became involved, and she considered you to have limited insight into the impact on Ms J, and into the transgression of parental boundaries that your behaviour represented.
54You were assessed by a neuropsychologist, Martin Jackson, in July and
August 2016. You told him that you had not seen your neurologist, heart specialist, or urologist for a while, as you could not get to appointments. On testing, Mr Jackson found that you have low-average intelligence, and before your illness, probably had average intelligence. The test results indicate the presence of mild impairments of working memory, processing speed and executive functions, and severe impairment of high-level attention and complex new learning. Mr Jackson thought that these impairments could be caused by your long term, high level alcohol consumption, or by the Parkinson's disease. Mr Jackson expressed concern for your mental health, and noted that your Parkinson's disease "is going to mask [your] ability to express" [your] mental condition and its severity”. He was also concerned about your ability to be properly managed in a prison environment from a physical perspective, as well as the high likelihood of your mental ill health being exacerbated by a prison sentence.55As a result of the material the court received about your physical and mental ill health, the plea was adjourned and you were remanded into custody. I requested that evidence be obtained from Justice Health as to how you would be managed in a prison setting. This has taken some considerable time, but I have now received an affidavit from Brendan Money, Assistant Commissioner of the Sentence Management Branch of Corrections Victoria, sworn
7 September 2016 on his own information and information received from
Jan Noblett, Director of Justice Health Unit, and an email from
Debra Coombs, Victorian Government Solicitor's Office, dated
21 December 2016[30], incorporating the relevant parts of an email fromCharles Roth, Medical Director of St Vincent's Correctional Health Service.[30] Exhibit 6
56In summary, you were assessed the day after your reception into custody,
23 August, and you provided a medical history as outlined in paragraph 17 of
Mr Money's affidavit. As a result, medical investigations were requested, as detailed in paragraph 18 of his affidavit. Your capability was assessed for the particular unit at Hopkins Correctional Centre, which houses elderly prisoners with medical and other issues, to which you were transferred on 26 August, and it was confirmed that you had significantly decreased mobility and were confined to a wheelchair when outside the unit, but were able to personally perform active daily living skills of showering, dressing and toileting.57The medical investigations detected cancer in the kidney, multiple mesenteric and bony metastase and two likely malignancies, as well as follicular lymphoma at Grade 2 and Grade 3. The Urology Multidisciplinary Team are awaiting further blood tests regarding ongoing treatment options. At some point, you were transferred to Port Phillip Prison, and are now housed in St John's Ward, where you continue to manage your daily living skills independently. Dr Roth noted that you are using your four-wheeled walker and wear hip protectors, and that there is no further evidence of delirium from which you suffered about two months ago.
58There is no evidence before me of your prognosis regarding the multiple serious diseases that you suffer from. Had the information been provided by Justice Health in a more timely manner, that evidence could perhaps have been sought. In any event, the evidence I do have satisfies me that you have serious physical and mental health issues, which mean that your time in prison will be more onerous for you than for the general prison population, and there will be a reduction in the sentence as a result; however, I am also satisfied that you are being well cared for, and your medical needs met, probably, as I remarked to your counsel yesterday, better than they were being met when you were in the community and not managing very well on your own.
59Apart from those matters personal to you to which I have referred, I must also take into account deterrence, especially general deterrence which is of the utmost importance in cases involving sexual offending against children, and even more so, when committed by parental figures. That means that by my sentence of you, the court must seek to deter other men from committing sexual offences against children, especially those within their care.
60However, I find that because of your age and ill health as well as the lack of contact with the victim now, there is very little risk of you committing more offences, and so my sentence need not have as a major purpose deterrence of you from re-offending. I make that finding in your particular circumstances, even though I find that your lack of insight and a recognition of your wrongdoing would otherwise have increased your risk.
61Counsel for the prosecution submitted that only a sentence of imprisonment to actually serve was appropriate because the offences you committed were serious examples of serious offences over a long period with aggravating features, you returned to the offending after significant gaps in time, and the impact on your victim is high. It was submitted that the option of a suspended sentence was not open, because that restricted the court to a total sentence of three years' imprisonment. A number of cases were provided[31] and I have read those and have regard to them and others as detailed below.
[31] Exhibit D
62On your behalf, while conceding that the offences were serious examples of serious offences, with a breach of trust, age disparity, aspects of degradation and supply of alcohol, your counsel submitted that there was a tension between the sentence to be imposed on a person now with the public’s expectations, and the sentence that would have been imposed at the time of the offending. He conceded that the expectation, of the public, and of you, was that a head sentence and non-parole period would ‘normally’ be imposed. He submitted, however, that I should still consider the sentencing statistics for sentences imposed at the time of the offending[32], and have regard to the case of Stalio.[33] The end result is that it was submitted on your behalf that in all the circumstances, a wholly or partially suspended sentence could still be imposed.
[32] Exhibit 5
[33] [2012] VSCA 120
63I have carefully considered the authorities in respect of regard to be had to sentences imposed at the time of the offending, but that is only one aspect to which regard may be had. Even if I were to give that aspect greater weight, the circumstances of your offending are such that a sentence imposed then would have attracted a sentence above, and perhaps well above, the median. Taking just one example, all of the indecent assaults involved penetration, and are therefore the most serious example of that type of offending.
64Further, I find that you should not get the benefit, if any, of potentially lower sentences imposed at the time of the offending, because there is not in your case the passage of time before report to police that prevented sentencing at the time. The victim told many people, including the police, what was happening, in 1985. You should have been dealt with then, but the criminal justice system failed the complainant.
65Not only is the report to police at the time of the offending a feature that distinguishes your case from many others, you have the added, aggravating feature that after notification to the authorities, you returned to abusing the complainant as soon as you got the opportunity - not just after the initial time that Ms J was out of the home, but on a subsequent resumption of contact after a period where you had had no opportunity to abuse her.
66Once the police had said they would not proceed in 1985, you probably thought you had got away with your crimes, and continued to offend. In those circumstances, I do not take into account any benefit that might have accrued to you, even assuming that such serious offending would have received lower sentences back then.
67Nevertheless, I have not ignored the fact that I am sentencing you now for offences committed between 1982 and 1996. I have been assisted by the case of CPD[34], where Table C sets out 25 cases, the dates of which indicate that many of them would involve offending during the same period as yours.
[34] [2009] VSCA 114
68As I said a moment ago, even if consideration of sentencing practices at the time of the offending was to be engaged in, that is only one aspect, and must be looked at with all other considerations in the exercise of the sentencing discretion. Thus, I have also had regard to the clear statements of the Court of Appeal[35] that the lapse of time since the commission of the offences and the “otherwise blameless life” of the offender are not unusual, and that:
"It is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour through the sentences imposed on perpetrators."
[35]DPP v Toomey [2006] VSCA 90, [14], [17]
69The applicable principles for this sentence in all of these circumstances appear to me to be as follows:
·Existing sentencing practice does not constrain a sentencing judge from imposing a higher or lower sentence than the prevailing practice[36];
·Over time, views may change about the length of sentence which should be imposed in particular cases, and when that occurs, the notions of manifest excessiveness or manifest inadequacy will be affected, and one must allow for the possibility that sentences to this point have simply been too low[37];
·The guidance provided by current sentencing practices for a particular offence may conflict with the guidance provided by the statutory maximum, and where that is so, the requirement to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences[38]; and;
·The Court of Appeal in 2009, and again in 2016, found that there is a disparity between the maximum penalties and the sentences handed down for sexual penetration offences against children[39], with a real question as to the adequacy of current sentencing. That must be an even more important question if considering sentences imposed some time ago.
[36]Dalgliesh, [118]
[37]DPP v OJA (2007) 172 A Crim R 182, [31]
[38]CDP, [7], citing R vAB (No 2) (2008) 18 VR 291, [68], [71]-[74]; CPD, [72]-[81]
[39]CPD, [8]-[9]; DDJ (2009) 22 VR 444, [72]; Dalgliesh, [87]
70I therefore propose to sentence in accordance with the applicable principles. These include a starting point[40] of imposing proper and proportionate[41] sentences individually on each charge, taking into account the factors in mitigation, before turning to concurrency and cumulation, and ultimately, totality[42].
[40]Bauer (a pseudonym) v R [2015] VSCA 55, [194]
[41] As the prisoner is a ‘serious sex offender’ from charge 3 onwards, a disproportionate sentence may be imposed.
[42] Totality is qualified by the ‘serious sex offender’ regime – see HMcL v r (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
71There are two final matters before I turn to sentence. The first is that you are to be sentenced as a serious sexual offender after sentences of imprisonment are imposed on charges 1 and 2, which will happen. Although you are to be sentenced as a first time offender, most of the factors that make your offending serious apply from the first charge, and there is no alternative to a term of imprisonment for all charges.
72As a result of your status as a serious sex offender, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed today. That requirement is mandatory. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. The prosecution do not seek that, and I do not intend to do that.
73It is also necessary for the sentences I impose today to be cumulative on each other unless I order otherwise, because of your status as a serious sex offender. I have decided to order some concurrency because of the need for the sentence I impose not to be crushing[43].
[43]R v Yates [1985] VR 41; R v Cumberbatch (2004) 8 VR 9; Beck v R [2005] VSCA 11
74I have had regard to the serious sex offender sentencing regime and recognise there are limits placed on the application of the principle of totality by the law relating to sentences imposed on serious sex offenders[44]. However, I have still considered the need for today's sentence to reflect to an extent the totality of your offending: that is, 3 charges of indecent assault (two representative); 3 charges of sexual penetration of a child between 10 and 16 under care, supervision or authority (two representative); and 3 charges of incest (one representative) over a 15-year period. In the end, however, because of the multiple constraints on me of current sentencing practice and totality, and the factors mitigating the seriousness of your offending, the cumulation will be relatively modest and not total cumulation as required by the Sentencing Act, unless otherwise ordered.
[44]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
75The second matter I come to is that as a result of my sentence today, you become a registrable sex offender. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. At the end of the sentence, I will have handed to your legal representative a notice of your reporting obligations which will be provided by them to you. As you are hearing the sentence over the video link and not physically present in court to personally receive the notice, it follows that I do not require you to sign an acknowledgement of receiving it.
76Despite the factors that mitigate the seriousness of your offending, these are offences which the community expects to result in stern punishment. As courts have said,
"a society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate"[45],
and
"Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their care".[46]
[45] Hedigan AJA, cited Toomey, [18]
[46]Dalgliesh, [43]
77You are convicted and sentenced as follows:
78On Charge 1 - indecent assault (representative) -18 months' imprisonment;
79On Charge 2 - sexual penetration with a person aged between 10 and 16 under care, supervision or authority (representative) - 3 years and 6 months' imprisonment;
80On Charge 3 - indecent assault - 2 years' imprisonment;
81On Charge 4 - sexual penetration with a person aged between 10 and 16 under care, supervision or authority (representative) - 4 years' imprisonment.
82On Charge 5 - indecent assault (representative) - 18 months' imprisonment.
83On Charge 6 - sexual penetration with a person aged between ten and 16 under care, supervision or authority - 5 years' imprisonment.
84On Charge 7 – incest - 5 years and 6 months' imprisonment;
85On Charge 8 - incest (representative) - 6 years 3 months' imprisonment;
86On Charge 9 – incest - 6 years' imprisonment.
87I make the following orders for cumulation in the usual terms, rather than in the terms required by the wording of s.6E of the Sentencing Act, to make them easier to understand.
88The sentence of 6 years and 3 months on Charge 8 is the base sentence. I direct that 12 months of the sentences imposed on Charges 6 and 2; 4 months of the sentences imposed on Charges 1, 3 and 4, and; 2 months of the sentences imposed on Charges 5, 7 and 9, be served cumulatively on the sentence imposed on Charge 8, and on each other.
89That makes a total effective sentence of 9 years and 6 months' imprisonment.
90Taking into account your age and poor health[47], I set a lower non-parole period than might otherwise be set, and direct that you serve 6 years and 6 months before becoming eligible for parole.
[47] Acknowledging that whether the sentence I impose destroys any reasonable expectation of a usefule life after release does not determine the real issue, which is whether the sentence imposed in appropriate to the crimes in all the circumstances – see R v Cumberbatch (2004) 8 VR 9, [11]-[13]; R v Yates [1985] VR 41, 48
91I declare that you have served 122 days in presentence detention, including today. These will be deducted administratively from your sentence.
92I declare that in respect of Charges 3 - 9, you have been sentenced as a serious sex offender and direct that this be entered into the records of the court.
93Finally, the sentence I would have imposed if you had not pleaded guilty is extremely difficult to determine, given the large number of representative charges. Doing my best, the sentence that I would have imposed if you had been convicted of the equivalent 23 single events after a trial is 18 years' imprisonment with a minimum of 15 years.
94Yes, are there any further orders required?
95MR STEFANOVIC: No, Your Honour.
96HER HONOUR: Yes, if you want to just check the calculations, yes.
97MS DEMPSEY: I was just counting, Your Honour. Just with the base sentence being Charge 8, which was six years and three months ‑ ‑ ‑
98HER HONOUR: Six years, three months.
99MS DEMPSEY: And you have got a total effective sentence of nine years and two months?
100HER HONOUR: Sorry, it should be nine years and three months, I think.
101MS DEMPSEY: I am bringing it to nine years and nine months, if I am counting, unless I have missed ‑ ‑ ‑
102HER HONOUR: I think I said nine years, six months, but I think it should be nine years, three months.
103MR STEFANOVIC: Your Honour, we both added the additions, and it is nine and nine.
104MS DEMPSEY: So Your Honour, I have got - in terms of the base sentence being Charge 8 being six years and three months.
105HER HONOUR: Yes.
106MS DEMPSEY: I have then got 12 months on Charges 6 and 2.
107HER HONOUR: Yes.
108MS DEMPSEY: Which gives us two years. Then on Charges 1, 3 and 4, I have got four months.
109HER HONOUR: Yes.
110MS DEMPSEY: Which would give it three years. And then I have got in relation to Charges 5, 7 and 9, that is two months each, which would bring it up to three years and six months, which then added onto the base sentence of six years and three months would bring it to nine years and nine months.
111HER HONOUR: Yes, thank you for correcting that.
112MS DEMPSEY: And I also just - because I was counting, I missed the s.6AAA if you could have that provided again.
113HER HONOUR: Yes, that is quite all right. Yes, well the non-parole period will still remain at six years, six months, despite the correction to the total effective sentence, and the s.6AAA declaration, what I said was that it was difficult to determine, given the large number of representative charges, so working on the basis of the equivalent of 23 single events, that would be 18 years with a minimum of 15 years.
114MS DEMPSEY: Thank you, Your Honour.
115MR STEFANOVIC: Thank you, Your Honour.
116HER DEMPSEY: Well, could I thank everyone for their patience in returning on the last sitting day of the year. And for the time it has taken, it now being after 1.30 in the afternoon.
117MS DEMPSEY: Thank you Your Honour, and thank you for accommodating defence in relation to trying to get as much material from ‑ ‑ ‑
118HER HONOUR: Not at all, it was important, very important to do so. Could I advise that you may not be back at your desks, but the sentencing remarks will be available in an unrevised version this afternoon.
119MS DEMPSEY: Mr Fitzgerald will be very pleased, I am sure, to receive that.
120HER HONOUR: Yes, all right, thank you.
121MS DEMPSEY: Thank you, Your Honour.
122MR STEFANOVIC: Thank you, Your Honour.
123HER HONOUR: We will now adjourn sine die.
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