Director of Public Prosecutions v Butler (a Pseudonym)
[2023] VCC 647
•19 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 22-01396
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PRESTON BUTLER (A Pseudonym) |
---
JUDGE: | His Honour Judge Lauritsen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2023 | |
DATE OF SENTENCE: | 19 April 2023 | |
CASE MAY BE CITED AS: | DPP v Butler (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 647 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Charges of incest, sexual penetration of a child or lineal descendant, sexual activity in the presence of a child under 16 and producing child abuse material – offending occurred against biological daughters – offending resulted in pregnancy of complainant and subsequent abortion – breach of trust between parent and child – significant example of a serious offence – some offending occurred in presence of sister – standard sentence scheme – category 1 offences – sentenced as serious sexual offender – offender New Zealand citizen – history of alcohol and drug use – history of traumatic childhood experiences – Bugmy – Verdins limbs 1 and 5 – early pleas of guilty – remorse – positive prospects of rehabilitation – hardship in prison due to Covid-19 – deportation – totality principle – life reporting period
Legislation Cited: Sentencing Act 1991; Migration Act 1958
Cases Cited:DPP v Dalgliesh [2016] VSCA 148; DPP v MJ [2000] VSCA 66; Victorsen v The Queen [2020] VSCA 248; DPP v Hum [2022] VSCA 57; Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160; R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169; Loftus v The Queen [2019] VSCA 24; Harlow v R [2018] VSCA 234; Boxer v R [2021] VSCA 300; Crawford v R [2018] VSCA 113; DPP v Tullipan [2021] VSCA 191; DPP v Howard [2021] VSCA 298; DPP v Jarvis [2019] VCC 1943 and DPP v Murray [2020] VCC 958
Sentence: 14 years imprisonment with a non-parole period of nine years
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Roodenburg | Office of Public Prosecutions |
| For the Accused | Mr J. Barreiro | Chester Metcalfe & Co |
HIS HONOUR:
1Preston Butler[1], I propose to sentence you to a total sentence of 14 years' imprisonment and I will set a non-parole period of nine years imprisonment.
2Excluding today, I will declare the 438 days of your pre-sentence detention as time served under my sentences.
3You pleaded guilty to nine charges, including a charge of incest and six charges of sexual penetration of a child under 16 who you knew to be your daughter.
4The circumstances of your offending appear in the summary of prosecution opening for plea which is Exhibit A.
[1]A Pseudonym.
Circumstances
5You are the biological father of the two victims, Tamara[2], now aged 18, and Angelina[3], now aged 11. There is a third daughter who is not one of your victims.
[2]A Pseudonym.
[3]A Pseudonym.
6Although your acts of sexual penetration of Tamara occurred between 2011 and 2022, only those which occurred in Victoria are the subject of the charges. These occurred after 20 October 2016 when the family moved from New Zealand to Melbourne. Exhibit A describes your offending by location and as convenient my sentencing remarks adopt the same approach.
9 Forest Road, Roxburgh Park[4]
[4]A Pseudonym.
79 Forest Road, Roxburgh Park was the home of a relative Alivia McDowell[5]. You and your family lived there.
[5]A Pseudonym.
8
In late 2016 or early 2017, when Tamara was 12 or 13, you placed her on a bed, removed pants and put a vibrating object between the lips of her vagina. You moved the object around in circles for a few minutes. As you pushed the object, it hurt Tamara. This is the first occasion of the charge of incest, which is a
rolled-up charge.
9Charge 1, encompassed two occasions of charges of incest rolled up into a single charge. The meaning of this expression was given in R v Jones[6],
[6] [2004] VSCA 68 at [13].
'Rolled-up counts are collections of offences bundled together into a
single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner.'
10It works to your advantage because I am restricted to sentencing you on a single charge. As such, I cannot sentence you beyond the maximum penalty for that charge. However, a charge encompassing more than one offence will, ordinarily, entail a penalty exceeding that attributable to a charge with only one offence.
11Returning to Charge 1, you then put your penis against her vagina and rubbed it between the lips of her vagina. You did this for a few minutes. It left her vagina a bit sore. This constitutes the second occasion of Charge 1.
12While living at Ms McDowell’s home you showed Tamara sex videos, you also tried to penetrate her vagina with your penis, but you stopped after she cried and told you it hurt.
Diggers Rest[7]
[7]A Pseudonym.
13During 2017, you and your family went to live at the home of Ms Garcia[8] and her family in Diggers Rest. One day while the others were away at work or school, you sought to penetrate Tamara’s vagina with your penis. Despite her saying “no” repeatedly, you persisted. You slapped her head hard to try to stop her moving. Each time you pushed, she screamed, you slapped her head again and told her to shut up. She was scared and realised she could not escape. She buried her face in a pillow to muffle her screams. This constitutes the first occasion of Charge 2.
[8]A Pseudonym.
14The first occasion of Charge 2 continued and you ultimately penetrated her fully. She still tried to get away but you held her by the waist, you ejaculated inside her. You told her to clean herself, which she did.
15On another occasion at the Diggers Rest home, you penetrated her vagina with your penis, this constitutes the second occasion of Charge 2.
16On 25 December 2017 at the Diggers Rest home, Angelina woke to find you and Tamara lying beside her on a mattress in the sitting room. You were lying on top of Tamara. Angelina could feel the bed shaking. She went to sleep. This is the first occasion of the rolled-up Charge 3, a charge of sexual activity in the presence of a child under 16.
77 Burke Court, Sunbury[9]
[9]A Pseudonym.
17Shortly afterwards you and your family moved to 77 Burke Court, Sunbury and lived there for about a year. You continued your sexual abuse of Tamara. These acts are uncharged.
18Angelina saw Tamara lying on top of you under a blanket and moving under the blanket. This is the second occasion of Charge 3, sexual activity in the presence of a child under 16. This activity ended abruptly when the children's mother returned home.
89 Meldrum Street, Sunbury[10]
[10]A Pseudonym.
19In about February 2019, your family moved to 89 Meldrum Street, Sunbury. Tamara shared a bedroom with her sisters. On an occasion you entered a bedroom, locked the door. Her sisters were present on the top bunk and using their iPads. While you and Tamara were standing, you removed Tamara’s pants and held her down so she was sitting on top of you. You pulled a blanket over both of you. Angelina asked you what you were doing. You told her to stay on her iPad and not come down from the bunk. You lifted Tamara up and penetrated her vagina with your penis. This constitutes Charge 4, sexual penetration of a lineal descendant and the third occasion of the rolled-up Charge 3, sexual activity in the presence of a child.
20There were other sexual acts performed by you on Tamara in that house, they are uncharged. Some of those acts were performed in the bedroom in the presence of Tamara’s sisters.
21You were angry with Tamara about her contact with boys. You searched her phone. In the end, you and Tamara agreed if she told you whenever she wants to have contact with a boy, you would limit your sexual abuse of her to four times a week.
22Once Angelina saw you naked and on all fours over Tamara, and both of you were on a mattress in the hallway. Angelina saw this through a partly opened bedroom door. You and Tamara had a blanket over both of you. When Angelina saw the mattress shake, she closed the door. This is the fourth occasion of Charge 3, sexual activity in the presence of a child under 16.
Harker Avenue, Sunbury[11]
[11]A Pseudonym.
23In March 2021, your family moved to 16 Harker Avenue, Sunbury. Your sexual abuse with Tamara continued several times a week, often before the children's mother came home from work.
24Once you entered Tamara’s bedroom while she was on the phone, you removed her pants and closed the door. You penetrated her vagina with your penis and moved in and out for more than 10 minutes until you finished. Afterwards you gave her a towel to clean herself. This is the first occasion of Charge 6, sexual penetration of a child or lineal descendant.
25Another time you penetrated her vagina with your penis while Tamara had her period. You spoke to her about wetness. She said it was blood. You stopped saying, 'she'd put you off by saying it was blood when it was not'. This is the second occasion of Charge 6, sexual penetration of a child or lineal descendant.
26In about May 2021 after another instance of you penetrating her vagina with your penis, Tamara became pregnant. After telling you of her missing four periods, you arranged for her to see a doctor. This is Charge 7, sexual penetration of a child or lineal descendant.
27Tamara saw a doctor who confirmed her pregnancy. You insisted on an abortion but left it to Tamara to make the arrangements. You took her to a clinic where an abortion was performed. She was told, and told you, she could not have sex for two weeks following the abortion. You sought to have penile-vaginal sex two weeks later, but did not because Tamara said she was bleeding. Nevertheless, you penetrated her mouth on about three occasions with your penis. These are uncharged acts.
28Two days later you tried to have penile/vaginal intercourse but Tamara said she was sore. This is an uncharged act. You waited a few hours and then gradually penetrated her fully and ejaculated. Tamara was still bleeding and sore. This constitutes Charge 8, sexual penetration of a child or lineal descendant.
29The last occasion Tamara can recall occurred after you had a shower. You penetrated her vagina with your penis and moved her. However, you tired and told her to get off you. This occurred on 3 February 2022, this constitutes Charge 9, sexual penetration of a child or lineal descendant.
30In the early hours of 5 February 2022, the children's mother found a video on one of your mobile phones. It depicted you and Tamara having sexual intercourse. Ultimately on the same day, she reported the matter to the police.
31
The police examined this phone and found a video and two photographs of sexual acts between you and Tamara. These were taken on 2 January,
29 October and 16 December 2021. Each is an occasion of producing
child abuse material and as part of Charge 5, producing child abuse material.
32The police interviewed you. You admitted having sexual intercourse with Tamara. You believe it started when she was 16, you confirmed the video showed you and she having sex at the end of 2021. Generally, you had sex with her two or three times a week. You and she performed oral sex. This first occurred when Tamara had just turned 15. You confirmed the abortion. You denied first having sex with her when she was seven and thereafter having sex two or three times a week.
Criminal History
33You have no criminal history. Since your abuse of Tamara started in 2011, when you were about 24, there is only a marginal discount for the fact of your good character up to then. I note you were raised in South Auckland in the presence of gangs. Some of your relatives were involved in gangs. It is to your credit, you were of good character in those formative years.
Victim impact statements
34And there are no victim impact statements. I will return to the issue of impact of your offending later.
Personal
35
You are now 35. You were born and raised in South Auckland. You are a
New Zealand citizen. You have four siblings. You are the second youngest. Your parents separated before you were born. Your father left the family. Even now, you have limited contact with him.
36You remained with your mother but she was a detached parent. Your grandparents raised you with some help from your mother. You were brought up in an anti-social and tumultuous environment. This included persistent sexual abuse of you by persons who stayed at your home. They included extended family members. In particular, you were sexually abused by an uncle who was sadistic and his behaviour once caused your hospitalisation through injury to your penis.
37Your education was limited. You went to secondary school but barely attended. You told the psychologist, Dr Gee:[12]
'At 11 I couldn't go to school and be around other kids. Mum would drop me off in the morning and I would sit in the bush at the back of the school until she picked me up. I was doing that for a long time. She thought I was going to school'.
[12] At [25].
38You have had one intimate long-term relationship. You have known Lili Webster[13] since you were 13. She is your second cousin. She became pregnant with Tamara when you were 15 and she was 18. The birth of Tamara gave you a purpose in life as a father. This relationship produced two more children. Despite that purpose, you started cheating on her, betraying her trust. This included the abuse of your daughter. Despite making you unhappy, you persisted. You told the psychologist[14], 'Felt I was stuck in it'.
[13]A Pseudonym.
[14] At [29].
39There has been little experimentation of illegal drugs in your lifetime. For a period of eight months in New Zealand you used cocaine, cannabis and alcohol heavily. You obtained the cocaine and cannabis from your cousins who were involved in gangs. This period of heavy drug use overlapped with your cheating on your wife.
40After the eight-month period you would drink alcohol heavily from time to time. You resumed drinking after you started abusing Tamara. Again, as you told the psychologist[15]:
'But when I started with my daughter, I was drinking all the time to forget about the day, when wasted it would quiet the mind'.
[15] At [36].
41However, you maintained there were very few times being under the influence when abusing your daughter.
42In your late teenage years, you, Mrs Webster, and Tamara came to Australia. You lived in Victoria and Queensland before returning briefly to New Zealand. The family returned to Australia in 2016.
Psychologist
43Dion Gee is a Forensic Psychologist. At the request of your solicitors, he interviewed you on 27 December 2022 and reported. It was a face-to-face interview unlike those of the recent past.
44To Dr Gee you are formed by your dreadful childhood experiences, including chronic sexual and sadistic abuse. Your transition to early adulthood was marred by different factors.
45You told Dr Gee of your desire to be caught. You said you left your mobile phone near your wife so she could find the video of you having sexual intercourse with Tamara. You say you encouraged her to contact the police as it was the only way you knew to stop the abuse.
46You could not explain why you chose Tamara. You said it occurred usually when you were stressed. You tried other forms of sexual relief, viewing pornography, masturbating. You did not want to cheat on your wife. Not unexpectedly, Dr Gee commented[16]:
'Upon follow up, he was noted to display a somewhat reduced appreciation of several aspects that underpinned the wrongfulness of such behaviour.'
[16] At [43].
47This finding was reinforced through the results of your psychometric testing.
48You underwent a series of psychometric tests to assess your risk of future sex violence. Dr Gee analysed the results of each tests:
(a) Static-99R: your risk of sexual re-offending is three-quarters of the risk of the average sexual offender;
(b) RSVP-2: you are in moderate risk of sexual re-offending if you are in the community with no further interventions;
(c) PCL:SV: you had minimal features consistent with psychopathy;
(d) SAPROF (2nd edition): your current circumstances gives you a low moderate degree of protection against relapsing into sexual violence.
49Bringing these results together, Dr Gee assessed you as a moderate risk of reoffending sexually. By moderate risk he means you posed the same risk as a typical convicted sex offender. However, if you reoffended it would be in a similar way to your offending against Tamara, that is with a pubescent female child, known or related to you.
50In the search for the reason why you offended, Dr Gee said[17],
'Mr Butler’s aberrant behaviour sees him falling along the avoidant-passive pathway to offending; a pathway characterised by under-regulation. That is, while he presents with a desire to avoid sexually aberrant behaviour, Mr Butler lacks the skills and competencies to meet his needs in more adaptive, pro-social, and meaningful ways. As such his aberrant behaviour appears motivated by an implicit need for self-regulation, rather than an explicit desire to commit sexually aberrant acts because of the ingrained and pervasive deviancy'.
[17] At [11].
51In the next paragraph of his report Dr Gee added[18],
'Mr Butler’s current understandings - or lack thereof - was certainly commensurate with the majority of those first-time sexual offenders labouring under a major mental illness/trauma pathology whom are yet to be availed of tailored intervention services to help them better understand their aberrant behaviour and reduce their potential for relapse'.
[18] At [12].
52Accordingly, he recommended these areas of treatment:
(a) mental health monitoring with an assessment by a psychiatrist under the potential benefits of anti-depressant medicines with a knowledge of the effects of your trauma;
(b) undertaking group by sex offender programs, these are provided for persons in custody by Forensic Intervention Services, a government organisation;
(c) undertaking psychological treatment to address your social, psychosocial, and distorted perceptions of abuse; and
(d) undertaking a psychoeducational program to deal with those factors behind your substance use, specifically alcohol.
Discussion
Purposes
53Section 5(1) of the Sentencing Act, describes the purposes of sentencing offenders. They are
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in, and
(e) to protect the community from the offender.
54Each of those purposes is engaged in your case.
55In the DPP v Dalgliesh[19], the court said,
'Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved'.
[19][2016] VSCA 148 at [129].
56My sentences must be seen as adequately denouncing your offending. They must deter you from committing the same or similar offending in the future. They must deter other persons who are minded to commit these or similar offences. They should protect the community from you. I should be mindful of the issue of rehabilitation. Overall, my sentences must represent just punishment in all of the circumstances.
57Whether you groomed Tamara or not, the fact remains these charges encompass offending over about five and a half years. What you did to your daughter represented an enormous breach of the trust which must exist between a child and his or her parent.
58Section 5(2) of the Sentencing Act sets out factors which I must consider in sentencing you where they are relevant. Not unnaturally, some of these factors overlap with the sentencing purposes in subsection (1).
Maximum penalties
59The maximum penalty for these offences are,
(a) incest - 25 years' imprisonment,
(b) sexual penetration of a child or lineal descendant - 25 years' imprisonment,
(c) sexual activity in the presence of a child under 16 - 10 years' imprisonment and
(d) producing child abuse material - 10 years' imprisonment.
60
One can see the offences of incest and sexual penetration of a child or lineal descendant is punishable by a maximum penalty of 25 years' imprisonment. This is the second highest maximum penalty in our law. The highest is life imprisonment. In your case, those offences are similar. In the legislative
re-organisation in 2016, sexual penetration of a child or lineal descendant replaced incest.
Gravity
61In his written outline of submissions your counsel has captured the gravity of your offending. Each of your offences of incest or sexual penetration was, objectively, a significant example of what is a serious offence.
62The whole of your offending covered a period of about five and a half years. From the agreed facts your offending was persistent. It appears Tamara was your main sexual partner. In that period, Tamara was aged between 12 and 18. Your other daughter is seven years younger than Tamara. That's your other daughter, Angelina.
63The breach of trust is obvious. Where trust exists between two or more persons, it is hard to imagine a greater trust than that which exists between a parent and his or her child.
64Although neither child nor their mother made a victim impact statement, the damage done to each child would be very significant. This is particularly so with Tamara. She was the focus of your sexual attentions. The incidents of sexual penetration captured by Charge 7, led to pregnancy and an abortion. As the court said in the DPP v Dalgliesh[20], this increases the objective gravity of the offending contained in that charge:
'These features are of course characteristic of incest offences across the range of seriousness. 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 occurs, each of which can increase the objective gravity of the offending, the culpability of the offender and the damage done to the victim and the victim's family. In the present case the pregnancy constitutes an aggravating feature which takes the offending towards the top of mid-range seriousness.'
[20] [2016] VSCA 148 at [73].
65In R v MJ[21] the court said,
'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 over 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 place in the offender by the victim and the community and the irreparable fundamental damage to the victim.'
[21][2000] VSCA 66 at [17].
66The events in Charge 8 occurred while Tamara was recovering from the effects of her abortion. This action exemplifies your disregard for the welfare of your daughter and your treatment of her as a sexual object.
67With these charges, they occurred in the family home, that is the usual location of the commission of offences of this nature. It is not an aggravating factor. It is simply part of what is a dreadful offence. It is a place where your daughter should have felt safe and protected. She was neither.
68Similarly, you took steps to prevent discovery. In a minor sense, you locked doors and removed door handles. In a larger sense, you insisted on Tamara having an abortion.
69Some of your offending was perpetrated in the presence of Tamara’s sister, this is captured in the separate charge. Certainly, your behaviour was brazen, you had no regard for Tamara’s welfare nor for that of her sister.
70You showed Tamara pornographic videos before or during some of your offending, this is an aggravating feature of those particular charges.
71Again, for some of the charges there was physical violence. You slapped her to achieve compliance. On others, you disregarded her protest, usually due to pain, and continued your offending.
72Because you used no form of protection, you ran the risk of Tamara becoming pregnant and being infected with a sexually transmitted disease. I am speaking of the risk, for she did become pregnant. There is no evidence of her contracting any such disease.
73The perverse nature of your relationship with Tamara emerges from the agreement you made with her. She would tell you about any proposed contact with a boy if you limited your sexual contact with her to four days a week. If this is an aggravating feature of your offending, it is signed through portraying an aspect of your relationship. You were jealous of her contact with males of about her age.
74Charge 3, is a rolled-up charge, it covers a period of about three and a half years of your sexual activity with Tamara, in the presence of her sister Angelina was then aged between seven and nine.
75As I said, there are no victim impact statements. There is no direct evidence of the impact of your offending upon Tamara, Angelina or her mother. It is not uncommon for victims not to provide an impact statement for proceedings in this court. With the experience of the courts and the academic research shows that the expected effect of your offending upon Tamara, in particular. As the court said in the case of MJ, 'the irreparable fundamental damage to the victim.'
76The harm will affect her psychology profoundly. Your perverted actions will leave her damaged for the rest of her life. These expectations are reinforced by the nature of your offending, her reaction to penetration, your indifference when she told you of her pregnancy and your penetration as soon as possible after the abortion. None of these actions point to a loving relationship, let alone that which should exist between father and daughter.
77I agree with the submission as your conduct continues, the latter incidences of sexual penetration can be seen as progressively more serious than the offences before.
78As to Charge 5, the production of child abuse material. You created this material for your own enjoyment. This is an aspect of the perversity of your behaviour. You did not distribute the video or the photographs and I would not have expected you to do so. Distributing them would have added an extraordinary layer to your offending.
Standard sentencing scheme
79On 1 February 2018, the standard sentence scheme commenced operating. Only a few criminal offences are standard sentence offences on which standard sentences are prescribed. The offences contained in Charges 4, 7 and 8 are such offences. The standard sentence for those offences is 10 years' imprisonment. The offences in these charges were committed after
1 February 2018 and before Tamara turned 18.80What is the meaning of a standard sentence? First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relevant seriousness of that offence, and is in the middle of the range of seriousness.[22] The objective factors affecting the relative seriousness of offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[23] Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[24]
[22] S 5A(1)(b).
[23] S 5A(3).
[24] S 5B(2)(a).
81In Victorsen v The Queen[25] the court discussed the standard sentence scheme. At paragraph 18 it said,
'In Brown this court said that the judge
when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence of an account as one of the factors relevant to sentencing.’ This requirement:
- is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
- does not affect the established ‘instinctive synthesis’ approach to sentencing;
- does not require or permit ‘two stage sentencing’; and
- does not otherwise affect the matters which the court may, or must take into account in sentencing.'
[25] [2020] VSCA 248.
82Section 11A of the Sentencing Act explains the effect of the standard sentence and the setting of the non-parole period.
Category 1 offences
83Charges 2, 4, 6, 7 and 8 are category 1 offences under the Sentencing Act. That is of no significance, for I would have imposed sentence of imprisonment for each of those charges irrespective of their categorisation.
Serious sexual offender
84Since I am imposing sentences of imprisonment on Charges 1 and 2, on the other charges you are to be sentenced as a serious sex offender. The effect of this is:
(a) of the purposes of sentences which I spoke earlier, I must place the protection of the community as the principal purpose;
(b) the sentences imposed should be served cumulatively upon each other unless I direct otherwise. Counsel for the Director pointed to a passage in the case of the Director of Public Prosecutions v Hum as to the proper approach a sentencing judicial officer should take to the application of s 6E of the Sentencing Act[26]:
'The ‘serious offender’ provision of the Act are intended to have more than a formal effect. Where those provisions apply, the scope for applying the totality principle must be more limited than in other cases. The evident object of the legislation is to make sentences to which it applies operate cumulatively rather than concurrently. That object would be compromised or even defeated if the ordinary application of the totality principle was a sufficient ground to enliven the discretion to otherwise direct. Sentencing judges need to be astute, not to undermine the legislative policy of the relevant provisions by applying the totality provision as if s 6E was not on the statutory book.'
[26] [2022] VSCA 57 at [113(d)].
(c) I may impose a disproportionate sentence but such a measurement is not as sought nor warranted.
85Through these measures one can see the legislatures intention to lessen the incidence of this type of offending. In addition to the maximum penalties, it has introduced the concepts of a standard sentence and a serious sex offender. Generally speaking, these measures are meant to increase the severity of sentences where the provisions apply.
86For Charges 4, 7 and 8, the standard sentence is a guide. The figure of
10 years imprisonment, is 40 per cent of the maximum penalty.87For Charges 3 to 9, I must look to the protection of the community primarily. That requirement encompasses the sentencing purposes of general deterrence, specific deterrence, the protection of the community from you and denouncing your offending.
Bugmy
88Your counsel submitted your personal history was shaped by violence and deprivation. These matters have helped to shape you as a person and help to explain your offending. Your counsel quoted passages from the case of
Bugmy v The Queen[27] and the case of the DPP v Herrmann[28]. In the former case the court said,[29][27][2013] HCA 37.
[28][2021] VSCA 160.
[29] [2013] HCA 37 at [40].
'The circumstances that an offender has been raised in a community surrounded by alcohol abuse or violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender, whose formative years have not been marred in that way.'
89Unfortunately, it is my experience of cases in this court, that many offenders have come from profoundly dysfunctional families. Their childhood and adolescence have been marred by such dysfunction. Your upbringing has been tainted by the same factors. I agree your moral culpability is lessened by this factor, however as the court pointed out in Bugmy's case, a factor which may lessen culpability may increase the significance of other purposes of sentencing.
Verdins
90Your counsel relies upon limbs 1 and 5 as stated by the court in the case of
R v Verdins.[30][30][2007] VSCA 62.
91Limb 1 deals with moral culpability. Although your experiences explain aspects of your offending behaviour and your dysfunctional psychological state, the extent to which they reduce your moral culpability is very much entwined with the considerations explained in Bugmy's case. Nevertheless, this is a mitigating factor.
92Relying on the opinion of Dr Gee, I accept the applicability of limb 5, namely your sentences will weigh more heavily on you than they would on a person in normal health.
Guilty pleas
93You were charged on 5 February 2022. In the Magistrates' Court there were three committal mention hearings. At the third you were committed for trial based on the contents of the brief of evidence. There was no formal committal hearing and no one gave oral evidence.
94In the Magistrates' Court and in this court after you were committed, there were negotiations. Ultimately, on 30 September 2022, there was agreement. On 27 October 2022, a fresh indictment was filed and you pleaded guilty to the charges.
95On the perspective of timing, I consider your guilty pleas were made early in the proceeding. By pleading guilty to the charges, you have saved the time and expense of a trial. You have allowed other trials to be listed earlier that would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is never easy, in particular I daresay it would be very difficult for Tamara to recount the circumstances of her abuse. Through those pleas you have accepted responsibility for your offending.
96At the present time, pleas of guilty deserve a greater discount on sentence. Why this is so, was explained in the case of Worboyes v The Queen[31] where the court said,
[31][2021] VSCA 169 at [35].
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence”.
97Your guilty pleas evidence remorse for the offending. Overall, they entitle you to a significant discount on the sentence which would otherwise have been imposed if you had pleaded not guilty but had been found guilty.
Prospects of rehabilitation
98In Dr Gee 's opinion your understanding of the reasons for your offending may emerge through tailored intervention services, as this may reduce your potential for reoffending.
99I accept you are remorseful for your offending. You engineered the intervention of the police to bring your offending to an end. You cooperated with the police. Your remorse indicates the determination not to reoffend. But your inability to stop offending until the police intervened, means your determination alone is insufficient at present. However, I expect you to engage satisfactorily with whatever program is offered by Corrections Victoria.
100For someone who has never been sentenced to imprisonment, my sentence should be an enormous deterrent to reoffending. The prospect of a penalty for further offending of the same or a similar nature should deter you from behaving in that fashion. It may even aid your rehabilitation.
101I consider your attitude the availability of appropriate treatment and the deterrent effect of my sentences, means your prospects of rehabilitation are positive. I will not say good or better, for you must overcome behaviours dictated by your youthful experiences and ingrained over years.
Covid-19
102You have been in custody since 5 February 2022. For the entirety of your time in custody you have been subject to the restrictions on movement while in prisons, personal visits from family and friends and educational and other programs and courses. Inevitably your time in custody has been difficult than it would have been in normal times.
Deportation
103Your counsel expects the cancellation of your visa following my sentences and the possibility of deportation to New Zealand. You are a citizen of New Zealand and not Australia. You have lived in Australia since you were 19, that is most of your adult life.
104In Loftus v The Queen[32], the court examined the operation of the relevant provisions of the Migration Act 1958. In the context of sentencing the court said[33]:
[32][2019] VSCA 24.
[33] At [79].
‘The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.'
105There is the potential for deportation. This uncertainty makes your time in custody more difficult. The difficulty is in the form of stress, something about which you deal with poorly.
106Second, if you are deported it will be an additional punishment. You will not be allowed to re-enter Australia. Your wife and children live here. Deportation will prevent you seeing them in Australia if, at some stage, that were to occur.
107The chance of deportation occurring is a factor in sentencing you. It is difficult to assess the likelihood of your deportation. All I can say is that is a possibility and some weight should be given to that possibility and its effect on you in the form of stress.
108The factors identified by Loftus' case apply to you. They are mitigating circumstances.
Current sentencing practice
109In relation to the standard sentencing regime, the charges relating to Tamara straddle two sentencing regimes. Counsel to the Director drew my attention to six decisions of the Court of Appeal on sentencing appeals and two sentences of this court.[34] Since none of the cases in the Court of Appeal involved charges attracting the standard sentence scheme, they are relevant in relation to charges 1, 2, 6 and 9. The two decisions of this court are relevant to Charges 3, 4, 7 and 8.
[34] DPP v Dalgleish [2016] VSCA 148; Harlow v R [2018] VSCA 234; Boxer v R [2021] VSCA 300; Crawford v R [2018] VSCA 113; DPP v Tullipan [2021] VSCA 191; DPP v Howard [2021] VSCA 298; DPP v Jarvis [2019] VCC 1943 and DPP v Murray [2020] VCC 958.
S 5B(5)
110Each of Charges 4, 7 and 8 contained standard sentence offences. For each of the charges after the second, you were also sentenced as a serious
sex offender. I have already explained the significance of those concepts.111Charge 7 contains a single instance of sexual penetration which had disastrous consequences for Tamara in her pregnancy and abortion. Pregnancy was to be expected as you used no protection and the frequency of your sexual intercourse with Tamara. Apart from these sentencing purposes and the maximum penalty this charge attracts two forms of guidance in the maximum penalty and the standard sentence. It also attracts the serious sex offender provisions.
112To you, Mr Butler, this must be complicated and confusing. However, the essential message is the offending contained in Charge 7 and to the same or differing extent for the other charges, is it will be punished severely. That is the message to you and to other persons who might commit offences of the same or similar character.
113The sentences on Charges 4 and 8 are less than the standard sentence. The sentence on Charge 7 is the same as the standard sentence. Each of the sentences on those charges is affected by the various factors which I have examined, whether aggravating or mitigating or dealing with actual sentencing purposes.
114The standard sentence and the serious sex offender provisions created a particular sentencing environment. Among the mitigating factors your guilty pleas have particular effect.
Totality principle
115In Crawford v The Queen[35] the court said,
[35][2018] VSCA 113 at [89].
'The totality principle requires that, when a court sentences an offender for multiple offences, the overall sentence must be a ‘just and appropriate measure of the total criminality involved’'.
116The principle remains, although the landscape with the sentencing for these offences has altered. What is a just and appropriate sentence has been changed through various measures, including the standard sentence and the serious sex offender provisions.
Sentence
117On Charge 1, a rolled-up charge of incest at the Roxburgh Park address, I sentence you to seven years' imprisonment.
118On Charge 2, a rolled-up charge of sexual penetration of a child or lineal descendant at the Diggers Rest address, I sentence you to seven years' imprisonment.
119On Charge 3, a rolled-up charge of sexual activity in the presence of a child under 16, I sentence you to two years' imprisonment.
120On Charge 4, a charge of sexual penetration of a child or lineal descendant at the Meldrum Street address, I sentence you to eight years' imprisonment.
121On Charge 5, a rolled-up charge of producing child abuse material, I sentence you to six months' imprisonment.
122On Charge 6, a rolled-up charge of sexual penetration of a child or lineal descendant at the Harker Avenue address, I sentence you to eight years' imprisonment.
123On Charge 7, a charge of sexual penetration of a child or lineal descendant being the occasion which led to Tamara’s pregnancy, I sentence you to 10 years' imprisonment.
124On Charge 8, a charge of sexual penetration of a child or lineal descendant, this being the first occasion of penis-vagina penetration after the abortion, I sentence you to eight and a half years' imprisonment.
125Charge 9, a charge of sexual penetration of a child or lineal descendant, being the last occasion of penis-vagina penetration of Tamara, I sentence you to eight and a half years' imprisonment.
126The sentence on Charge 7 is the base sentence. Six months of each of the sentences on Charges 1, 2, 4 and 6 and 12 months of the sentences on Charges 8 and 9, are to be served cumulatively upon themselves in the base sentence. The other sentences of imprisonment are to be served concurrently of themselves and the other sentences.
127The total effective sentence is 14 years' imprisonment. I will set a non-parole period of nine years imprisonment.
128Excluding today, you have been in custody for 438 days. I declare the 438 days of your pre-sentence detention as time served under my sentences.
S 6AAA
129If you had not pleaded guilty to these charges but had been found guilty of them after a trial, I would have sentenced you to a total effective sentence of 21 years' imprisonment.
Sex Offenders Registration Act
130Given the nature of your crimes under the Sex Offenders Registration Act, you will need to obey the reporting conditions for the rest of your life.
Disposal order
131I will make the disposal order in the terms sought.
Serious sex offender
132On Charges 3 to 9, you have been sentenced as a serious sex offender, I will cause that fact to be entered into the records of the court.
- - -
0
17
0