Director of Public Prosecutions v Cain (a pseudonym)
[2022] VCC 724
•20 May 2022
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYAN CAIN (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Shepparton (Plea); Melbourne (Sentence) | |
DATE OF HEARING: | 13 May 2022 | |
DATE OF SENTENCE: | 20 May 2022 | |
CASE MAY BE CITED AS: | DPP v CAIN (A PSEUDONYM) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 724 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Incest, plea of guilty
Legislation Cited: Crimes Act 1958 (s. 47(1)), s.44 (1)), Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:Director of Public Prosecutions v Walsh [a pseudonym] [2018] VSCA 172, Director of Public Prosecutions v Dalgliesh [2017] HCA 41, Worboyes v The Queen [2021] VSCA 169, Re Diab [2020] VCC 196, [38], R vVerdins [2007] VSCA 102
Sentence: 5 years 8 months with a non-parole period of 3 years.
S.6AAA Sentencing Act 1991 declaration – 7 years 8 months with non-parole period of 5 year 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Office of Public Prosecutions |
| For the Accused | Mr J. FitzGerald | Victoria Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised through the omission of names of people, places and birthdates; as well as through the adoption of pseudonyms in place of names of the offender, victim and family members.
HIS HONOUR:
Introduction
1Bryan Cain,[1] you have pleaded guilty to two charges of Incest and one charge of Indecent Act with a Child Under 16. The maximum penalties for Incest are 25 years each. The maximum penalty for committing an Indecent Act with a Child Under 16 is 10 years' imprisonment.
[1] A Pseudonym.
2It was common ground between the parties that the only penalty available to me was to impose a head sentence of imprisonment and set a non-parole period.
Family Constellation and Relationships
3You were born in 1946. You are now 76 years of age, and were aged between 62 and 65 years at the time of the offending.
4Your victim is Lila Rogers.[2] She was born in 1998. At the time of the offences she was aged between 10 and 13 years. Ms Rogers' mother, Elsa Fleming,[3] is your daughter, making Ms Rogers your biological granddaughter.
[2] A Pseudonym.
[3] A Pseudonym.
Offending
5As a child, it was common for Ms Rogers and her two older brothers, Harry and Lucas, [4] to be cared for by you and to sleep at your house. When Ms Rogers was aged between 10 and 13 , she was staying the night at your house with her brother Lucas. Ms Rogers was worried about you coming into her bed so she set the alarm on your mobile phone, in an attempt to wake up before you. Ms Rogers was sleeping on a sofa bed in the same room as her brother.
[4] Both Pseudonyms.
6Ms Rogers heard the alarm going off in the morning and heard you come into the room where she was sleeping, saying to yourself, 'just a quickie.' You put your hands on Ms Rogers’ ankles and pulled her legs apart. You licked her vagina while she pretended to be asleep and tried to roll away from you. These are the facts that make up Charge 1, Indecent Act with a Child Under 16.
7You then penetrated Ms Rogers’ vagina with your penis for approximately five minutes while she was lying on her back. This constitutes Charge 2, Incest.
8
The last time Ms Rogers recalls you touching her sexually was on the first day of Term 1 in Year 7, January 2012. She was 13 years of age and had been suspended from school before recess for getting into a fight with other students who had picked on her because of her weight. Ms Fleming picked Ms Rogers up from school and took her home. You were at her house and you went into
Ms Rogers' bedroom where she was lying on the bed in her school uniform. You put your hand under the blanket and into Ms Rogers’ underpants. You penetrated Ms Rogers’ vagina with your finger. You pulled your finger out a bit and then back in, repeatedly. This is Charge 3, Incest.
9Ms Rogers’ mother opened the door and you quickly removed your hand and lied to her, claiming that you were checking on Ms Rogers when asked what you were doing.
Complaint
10In either 2013 or 2014, Ms Rogers told a friend that she had been sexually abused but did not say by whom.
11In 2020, Ms Rogers told her boyfriend that you had raped her. In July 2020, Ms Rogers and her boyfriend went to your address and Ms Rogers confronted you saying, 'You raped me and you physically fucked me as a kid when you shouldn't have.' When Ms Rogers asked you why, you replied something like, 'Something happened to me as a kid.'
Arrest and Interview
12Your formal arrest and interview were preceded by an unprompted confession to police and an apparent attempt on your own life. On 16 September 2020, you called police to tell them you had sexually assaulted your granddaughter 12 years earlier. You told them that you had been confronted by your granddaughter a month earlier and were suicidal about it. You were taken by ambulance to the Northern Hospital.[5] I will return to this hospital stay in due course.
[5] Depositions at p. 72, Statement of FC Hannah Patane.
13On the 15 February 2021, police attended at your home. You were arrested and advised of your rights and cautioned. You made a phone call to your support worker at Northern Central Health prior to being transported to Wallan police station for the purpose of the interview.
14You admitted penetrating Ms Rogers’ vagina with your penis, stating:
(a) 'I know I raped her because I did. I think she was 12 years old'; [6]
(b) 'I just had sexual thoughts, and there – from then on went to stepping into her bed, getting into her bed and forcing myself upon her’; [7]
(c) 'Lila was asleep. I got in bed with her. I had an erection and I had sexual intercourse with her.' [8]
[6] At Answer 51 of the Record of Interview (‘ROI’).
[7] At Answer 71 of the ROI.
[8] At Answer 91 of the ROI.
15You denied putting your mouth on Ms Rogers’ vagina[9] but also stated that you could not recall doing so and did not really know if you did.[10] You said Ms Rogers’ claim would 'have to be a hundred per cent true because Lila has never been that sort of child who would say something that wasn't true.'[11] Similarly, you could not recall penetrating Ms Rogers’ vagina with your finger but said, 'Again, coming from Lila, I'd say something like that would have to be a hundred per cent true.'[12]
[9] At Answers 84; 109 of the ROI.
[10] At Answers 109 – 112 of the ROI.
[11] At Answer 88 of the ROI.
[12] At Answers 159 – 166 of the ROI.
16I will indicate now for reasons I will elaborate on later, that I accept these gaps in your memory are genuine and that your interview was utterly confessional. That interview is evidence of your remorse and contrition for the offending you engaged in.
Matters Personal to the Accused
17You were born in 1946 in Melbourne. You have a twin brother, Greg. [13] You and Greg were in about the middle of a sibship of six boys and four girls. Your father worked whilst your mother maintained the home and cared for the large family. You described her as an angel.
[13] A Pseudonym.
18In contrast to this description, you describe your father as a brutal drunk. He inflicted significant physical violence on all members of your family. At one point in your childhood, when you were between eight and 12 years of age, you witnessed your father engaging in intercourse with one of your sisters. This was never reported to police. You also recall an occasion where your father fought with an older brother who had stood up to him over an issue. Your father stabbed your brother. The police were not called in respect of that either.
19You generally got on well with your brothers and sisters. You were close to your next youngest brother. You went to one primary school up until Grade 4 or 5 and then went to another school up till Grade 6. You then you attended a Technical School where you got to the 3rd Form. In your final year you were often absent. Apparently, you were recorded as only being present for 14 days out of the last six months of school. Nonetheless, you were offered an opportunity to study for a junior certificate, which you obtained.
20You did not like school. You were often in trouble and often involved in fights. Between the ages of 12 and 15, you lived at different places, spending time living with older friends in the Daylesford and Hepburn Springs area. You would drink alcohol with these other young people. You would collect wood which you would de-bark and provide to furniture makers. You also spent time living with a school friend who lived nearby in Reservoir. You would also spend some time residing at home, although, this was limited as you were in constant conflict with your father.
21You started to drink quite heavily in this period, though it affected you quickly and badly. After leaving school you looked for work as a mechanic, but that was not immediately forthcoming. You got work at a timber mill where you worked for a few years. In the early 60s, you secured work as a backyard mechanic and worked in this job for close to a decade. At the same time, you managed to complete a certificate in petrol and diesel mechanics at night school.
22Your earliest serious relationship was with a woman you met when you were about 16 years of age. You became engaged and were together for about four years. You did not marry or live together and separated when you were about 20.
23Your second serious relationship commenced when you were around 23 years of age. You married this woman when you were 25, in approximately 1971. You lived at various addresses together in Fairfield and Kew. You had no children together.
24In the late 60s, in what is developing as a theme of prodigious work history, you secured work at a scaffolding firm. You did labouring work for this firm for about 18 months before returning to mechanical work. You became a workshop foreman and worked there for around four or five years. After this, you moved to work with another company as a mechanic and stayed there through to the mid-1990s. You also worked in stevedoring.
25Your relationship with your then wife ended when you were about 30 years of age. You then commenced a relationship with a woman by the name of Anita[14] who you later married when you were about 35. Through this union, you had one child Elsa – she is the mother of the complainant in this case.
[14] A Pseudonym.
26You lived as a family in circumstances that your counsel describes as particularly rough. Throughout this time, you were drinking heavily and using illegal drugs – cannabis, but also speed and cocaine when it was available.
27Despite this alcohol and drug use, you were able to hold down employment, although you suspect your substance and alcohol abuse were significant factors in the ending of your marriage with Anita. After you separated you went to live in a caravan park in Sunshine for a time. You ceased having contact with your daughter from this time for about seven years. When you resumed contact, it had to be organised through the local police station.
28Soon after separating from Anita, you met another woman with whom you formed a relationship. You purchased a house together and lived together for seven years until she passed away from lung cancer and heart disease. After her death, you ceased drug and alcohol use, the latter having resumed intermittently.
29I note you admit one prior Court appearance; now something like 17 years ago in the Seymour Magistrates' Court in 2005. You were placed on a Community Based Order for 12 months with conditions for exceeding the prescribed concentration of alcohol while driving, and also for unlicenced driving. Your licence was cancelled for three years. The penalty there suggests it was a high reading and reflects your history as a problem drinker. Your memory about this matter is poor. Again, unsurprisingly given your work ethic, you completed the work component without any issue. It appears you also engaged in counselling, whatever form that took.
30From the late 1990s, you worked for about six years driving forklifts. After leaving this job, you worked as a jack of all trades doing concreting, labouring and painting work for cash until you were 65, when you retired on a pension. I note that this is approximately the time you offended against your granddaughter.
31You had formed a closer relationship with your daughter in the years leading up to the revelation of these offences. For obvious reasons and ones of your own making, you have now no contact with her or your grandchildren.
32You had sold your house but were renting it back until the time that you were imprisoned. You came to that arrangement in preparation for your inevitable imprisonment. Your twin brother Greg lives in the house next door. Greg's grandchildren are young adults and they live at the back of his house. As I said, sensibly, you have made arrangements for others to take over the lease and it appears that it is Greg's grandchildren who do so.
The Offending
The cause of, or context to the offending
33On 15 March 2022, you were interviewed by Simon Candlish, consultant psychologist.[15] He prepared a report dated 2 April 2022. That report outlines a complex combination of factors said to have permitted the offending to occur.
(a) Mr Candlish is of the view that you meet the criteria for Persistent Depressive Disorder (mild to moderate severity)[16] and indeed, that you suffered from such a disorder at the time of the offending,[17] although it was not claimed this itself reduced your culpability or made you a poor vehicle for general or specific deterrence.
(b) Mr Candlish utilised the ICD-11 model to assess personality impairment. This revealed mild disturbance in your sense of self, poor integration of self and poor sense of self-worth. You appear to have met the criteria for a mild personality disorder. [18]
[15] Exhibit 2.
[16] Exhibit 2 at [68].
[17] Exhibit 2 at [103].
[18] Exhibit 2 at [69] – [73].
34Mr Candlish noted that you are likely to have previously met the criteria for alcohol use disorder and stimulant use disorder in sustained remission.[19] In his case formulation, Mr Candlish points to your childhood adversity contributing to mental health vulnerability, poor coping skills and problematic attitudes. He notes that the early onset substance use represents dysfunctional coping in response to your childhood abuse. [20]
[19] Exhibit 2 at [74].
[20] Exhibit 2 at [97] – [98]
35Importantly, he is of the view that:
'Mr Cain sexualised his granddaughter perhaps in the context of his social disconnection and low mood, as well as poor empathy, impulsivity and poor consequential thinking related to his personality issues. His permissive attitudes predisposed him towards sexually harmful behaviour against his granddaughter.'
36That final comment appears to me to be an insightful, accurate working theory as to how it came to be that you offended in the way that you did.
Gravity and Culpability
37Sexual offending against children, particularly those under an offender's care or protection, is a gross breach of trust justifying a term of imprisonment. Incest is an appalling crime. It is by its definition, an offence of very high culpability. As the Court of Appeal said in DPP v Walsh [a pseudonym] [2018] VSCA 172:
'Since it is so obviously contrary to every tenet of parental care for children and since every parent or parental figure [as is the case here] is taken to understand that sexual activity is absolutely prohibited'. [21]
[21] Director of Public Prosecutions v Walsh (a pseudonym) [2018] VSCA 172 at [33].
38It is inherently a crime of violence. As a category of offending, it represents egregious conduct and any sentence imposed must reflect this. The same can be said of the Indecent Act with a Child Under 16 charge.
39It is clear, however, that this crime, like all offences, can carry with it different levels of seriousness. As it has been stated in a number of authorities,[22] in assessing the relative seriousness of an offence of incest, it is necessary to consider the nature and extent of the offending conduct; its frequency and duration and the circumstances in which it occurs, the culpability of the offender and the impact on any victim.
[22] Director of Public Prosecutions v Dalgliesh (a pseudonym) [2016] VSCA 148; Director of Public Prosecutions v Tewksbury (a pseudonym) [2018] VSCA 38 and Grantley (a pseudonym) v The Queen [2018] 272 A Crim R 340.
40Here, on two separate occasions, you engaged in sexual activity with your granddaughter. On the first occasion, she was as young as 10 at the time that you licked her vagina and had unprotected penile-vagina intercourse with her for five minutes. This occurred in her room at your house.
41Your victim was 13 years of age at the time that you next offended. She had been bullied and collected from school and returned home. While you were at her mother's home, you repeatedly violated her with your finger in her own room.
42Your offending represents a fundamental breach of your familial relationship and, accordingly, represents a breach of trust – a significant factor in assessing the objective gravity of your offending, and your level of culpability for it. Your offending took place over a period of up to three years. You offended twice within that period, with the repetition of your behaviour on the second occasion accentuating the gravity of the overall offending. Both instances took place in a home in which your young victim was living or staying, a place that she was particularly entitled to feel safe in. On the second occasion, your offending occurred in her bedroom on her bed, a location of particular vulnerability, while she must also have felt particularly vulnerable after what had just happened to her at school which further accentuates the gravity of your offending.
43I accept that there is an absence in your case of any grooming behaviour, any force or coercion or additional violence or degradation which is sometimes associated with this offending. Likewise, there is an absence in this case of any behaviour on your part following your offending, which would otherwise aggravate your conduct. There is an absence of any efforts of concealment or cover-up or any entreaties on your part to facilitate silence on the part of your victim. I take these matters into account.
Victim Impact
44Whatever the genesis this offending is of, Mr Cain, it has had nothing short of catastrophic effects on your family. The victim impact statement[23] by your daughter makes harrowing and distressing reading.
[23] Exhibit B.
45Elsa was your only child and she was proud to bear that title for a period of time. She went to efforts to include you in the milestones and achievements of her life. She then describes the horror of hearing her daughter recount what you did to her. Because of your crime, your daughter feels isolated, angry, alone and sad. She shut herself off from her partner and friends and struggles to discuss the matter. She simply cannot understand why you did what you did against her innocent child.
46She ruminates on signs she thinks she should have picked up on to detect your intentions, or changes in her daughter's behaviour that might have saved her from further abuse. Of course, she was not to know about your depravity. You were her father, her daughter's grandfather no less. She trusted you.
47She describes the change in her daughter from her happy first child to one who is now suffering. Her relationship with her daughter is in ruins. She correctly observes that her daughter's childhood has been stolen from her and fears her future relationships will suffer because of the gross breach of trust you engaged in.
48Her daughter self-harms now and in the past has expressed to her that she no longer wishes to live. Your daughter struggles to explain to her autistic son that he will not see his grandfather again. Put simply, she feels as though her family is fractured and cannot be repaired.
49The parties agreed that it is through Ms Fleming’s Victim Impact Statement that I could understand what effect the offending had on the principal victim, Lila. In addition to what Ms Fleming describes, the Depositions reveal that Lila had taken to blocking things out about the offending.[24] Lila had used a coping mechanism whereby she pretended that what was happening was not real,[25] and otherwise tried to repress the traumatic and disgusting memories of your conduct, making it very difficult to talk about.[26]
[24] Depositions at p. 29, [22].
[25] Depositions at p. 29, [25]
[26] Depositions at p. 34, [24] –[25].
50These are the consequences of your depraved acts, Mr Cain. They are cruel, profound and they still endure in those affected a full decade after you committed them.
Matters of sentencing principle
Admissions
51I will commence with this observation. In my experience, it is uncommon for an accused to admit to offending of this type. You made admissions to police before any report appears to have been made about it, which was coupled with thoughts of suicide. [27] You made admissions to police to the most serious of acts, those involving penile penetration, immediately when interviewed. Whilst you equivocated regarding other alleged conduct, you accepted your granddaughter was a truthful girl and she would not have falsely implicated you.
[27] I note that you were able to access services at Broadford Northern Health care, who were helping you with mobility and you dealing with the allegations your grand-daughter made to you (which you accepted).
52There is a further medical basis that fortifies the conclusion you were not dishonestly obfuscating about your memory of relevant events. Since September 2021, neurologists have assessed you for what has been termed a complex movement disorder of unclear cause. This is associated with problems with both walking and memory. [28]
[28] Exhibit 4 and Exhibit 5.
53Your admissions are in contrast to many offenders who cynically plead ignorance or deny offending, undermining the credibility or honesty of their victims as they do so. Your pre-charge co-operation is a matter I give real weight to. The admissions inevitably meant this matter proceeded as a plea of guilty.
Plea of Guilty
54It is submitted, and I accept, that the plea of guilty in this matter was offered at the earliest available time. The negotiation between the parties centred around other charges which have not, in the end, proceeded. By resolving this matter, you have spared the complainant and other witnesses from giving evidence and being
cross-examined at a Trial. This is no small matter. There is a human saving implicit in pleas to offending of this kind. You have acknowledged your wrongdoing and demonstrated a willingness to facilitate the course of justice.55Further, the plea in this matter was offered at a time when COVID-19 was prevalent in the community and I note, still is. [29] Accordingly, the plea is of real utilitarian value to the Court, especially in the context of the pandemic, as observed by our Court of Appeal in Worboyes v The Queen, particularly this section that I will quote:[30]
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. The sentencing judge must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
[29] It still is. At the time the Plea the 7 day average daily case numbers in Victoria was 8132.
[30] [2021] VSCA 169, [39]. See also DPP v Bourke [2020] VSC 130 at [32]; Chenhall v The Queen [2021] VSCA 175, at [34]-[35].
56Your plea, in my view, warrants a significant moderation of the sentence that would otherwise be imposed. The plea is indicative of remorse in this case. You made it clear that you concede your guilt from the earliest point in time and I accept that you are consumed with self-disgust and regret. Your remorse was also evident to Mr Candlish who noted as much many times in his report.
Burden of Imprisonment in Pandemic
57Prison will be a burden on you. By March 2020, for obvious reasons, Corrections took steps to protect the prison system from outbreaks of COVID. Those protective measures negatively impacted detainees and increased the burden of imprisonment. The pandemic is far from over. Unless and until otherwise it is demonstrated to me, I will sentence on the basis that the same hardship will be occasioned to any prisoner now as that which has already been experienced by other prisoners in the preceding two years.
58Examples of the impact of the pandemic effects correctional facilities include:
(a) generally making time in custody very difficult and/or significantly more difficult for all prisoners;[31]
[31] Re Diab [2020] VCC 196, [38] (Diab); DPP (Cth) v Stanley (a pseudonym) 2020 VCC 898, [63] (Stanley).
(b) creating greater isolation for prisoners by restrictions on face-to-face visits;[32]
(c) reducing access to education and programs for prisoners;[33]
(d) the increased burden caused by lockdowns;[34]
(e) infection scares occurring at various prisons;[35]
(f) the increased anxiety arising from concern as to contracting the virus in prison;[36]
(g) the inability of prisoners to protect themselves from exposure by avoiding areas of concern or distancing themselves from others;[37]
(h) the fact that the risk in prison of contracting the virus is far higher than in a person's home;[38]
(i) the fact that there is a 14-day isolation period mandatory for all new prisoners;[39]
(j) increasing fear and concern, both for family members and by them;[40] and finally, as I have noted already,
(k) making the plea of guilty, one of greater utilitarian benefit.[41]
[32] Diab, [38]; Stanley, [63]; DPP v Suleiman & Mahmoud [2020] VCC 454, [81]-[88] (Sulieman); DPP v Teplin [2020] VCC 846, [44] (Teplin); DPP v Williams & Anor [2020] VCC 739, [75] (Williams); DPP v Barnfield [2020] VCC 631, [42]; DPP v Hoblos [2020] VCC 720, [121] (Hoblos).
[33] Diab, [38]; Stanley, [63]; Teplin, [44]; DPP v Vu [2020] VCC 755, [27]; Hoblos, [121].
[34] DPP v Zampatti [2020] VCC 628, [59]-[67] (Zampatti); DPP v Bietman [2020] VCC 894, [63]; Teplin, [44]; Williams, [75].
[35] Stanley, [63]; DPP v Danci [2020] VCC 575, [55].
[36] Zampatti, [59]-[67]; Teplin, [44].
[37] Zampatti, [59]-[67]; DPP v Noble [2020] VCC 600, [50] (Noble); Hoblos, [121].
[38] DPP v Lang [2020] VCC 759, [117]; Noble, [51].
[39] Zampatti, [59]-[67]; Sulieman, [81]-[88].
[40] DPP v Osman [2020] VCC 638, [87]; Sulieman, [81]-[88]; DPP v McInnes [2020] VSC 799, [35]; DPP v Vu [2020] VCC 755, [27].
[41] Teplin, [43]; DPP v Barnfield [2020] VCC 631, [41].
59I accept that there has not been a more difficult time to be a prisoner or remandee in this State than presently. I accept that these are the conditions that you will be confined in for a significant period of time. The sentence I impose will reflect this additional burden of imprisonment in the circumstances as I have described them above.
Age and Infirmity
60
You are now 76. You were between 62 and 65 when you offended. You now suffer from mobility and memory issues. Any sentence of imprisonment imposed now will likely represent a significant proportion of your remaining life. More than that, you will be an elderly, frail, first time prisoner whose age related conditions will inevitably deteriorate as you grow older, rather than improve or resolve.
Mr Candlish posits that there is an increased risk of suicide upon incarceration.
61
Mr Candlish further notes that you might struggle to cope effectively in custody and experience increased withdrawal and distress, resulting in further deterioration of your symptoms.[42] Mr Teo urged me to treat this statement cautiously, given the rather speculative way the opinion is expressed. I am not convinced that
Mr Candlish’s comments provide a sufficiently cogent evidentiary basis for me to apply Verdins[43] limbs 5 and 6, but that is not to say I have ignored that prison will inevitably be harsh for you, particularly now in the present custodial environment and with your advanced age.
[42] Exhibit 2 at [107] – [108].
[43] R v Verdins [2007] VSCA 102.
62However, the effect of delay on the victim must also be considered[44] and a sentence should not be moderated purely because the offender is significantly older as the result of a delay.[45] This is often a feature of sexual offending against children. It takes them a long time to disclose the abuse that they suffered, as was the case here.
[44] R v DD (No 2) [2008] VSCA 15 at [22].
[45] Mush v The Queen[2019] VSCA 307, [98].
63Just punishment, proportionality and deterrence will always remain primary sentencing consideration, regardless of the offender's age.[46] So too, it is relevant to an individual's prospect for reform.
[46] RLP (2009) VSCA 271, [39]. See also Fichtner v The Queen[2019] VSCA 297, [90], [95].
Rehabilitation
64Mr Candlish utilised the Static-99R and RSVP models to undertake a risk assessment of you in respect of future sexual offending. He is of the view that you fall into the lower risk category for sexual offending. [47] You reveal no other history of contact sexual offending or signs of entrenched deviancy or problems managing any possible underlying deviancy. You appear to be aroused to adult females.
[47] Exhibit 2 at [94].
65According to Mr Candlish, as I said earlier, you present as regretful and remorseful. You have discussed an awareness of the serious impact of your behaviour and you have not been detected engaging in any further harmful behaviour since 2012. This suggests a capacity for self-control and effective management of risk. [48]
[48] Exhibit 2 at [99] – [102].
66You have no relevant or even recent prior convictions. You acknowledge guilt and are deeply ashamed. As I said, you are found to be a low risk of further sexual offending; a finding not challenged by the Crown on the Plea and one that I accept as accurate.
Serious Offender Provisions (Protection of Community)
67Because of the nature of your offending, under the Sentencing Act, Incest under s44(1) and Indecent Act with a Child Under 16 under s47(1) are sexual offences within the meaning of the serious offender regime. Once you are convicted and sentenced to terms of imprisonment on Charges 1 and 2, and you will be, you fall to be sentenced as a serious sexual offender on Charge 3. That manifests in a number of ways:
(a)
the Court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed in relation to
Charge 3;
(b) I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence, considered in light of its objective circumstances;
(c) I must, unless otherwise directed, order that the sentence for Charge 3 be served cumulatively; and finally
(d) I must enter into the record of the Court that you were sentenced as a serious sexual offender on Charge 3.
68
The Crown, quite properly, do not urge me to impose a disproportionate sentence in order to achieve the principal aim of protection of the community on Charge 3. Mind you, that is a sensible concession to make, given the available evidence regarding specific deterrence, remorse and clinical indicators of a low risk of
reoffending.
Formulation of Sentence
69In formulating an appropriate sentence in your case, I have had regard to current sentencing practices, as one of the many sentencing factors I must have regard to. Neither your counsel, nor counsel for the prosecution, referred to me comparable cases, but I have nonetheless had regard to decisions of this Court and our Court of Appeal in order to give appropriate weight to current sentencing practices.[49]
[49] Director of Public Prosecutions v Hardin (a pseudonym) [2018] VCC 1834; Grantley (a pseudonym) (supra); Carter (a pseudonym) v The Queen [2018] VSCA 88; Director of Public Prosecutions (Vic) v Wilson (a pseudonym) [2018] VSCA 263; Tewksbury (a pseudonym) (supra); Director of Public Prosecutions v Shearer (a pseudonym) [2019] VSCA 47.
70While sentences of other Courts are not binding precedents and are merely historical statements of what has happened in the past,[50] and current sentencing practices represent just one of the sentencing factors to be considered, clearly, sentences for the crime of Incest, particularly in recent years, have involved significant sentences of imprisonment of some years' duration.
[50] Dalgliesh (a pseudonym) [2017] HCA 41 at paragraph [83].
71In formulating an appropriate sentence in your case, I have had regard only to the purposes for which sentences must be imposed. Previous sentencing decisions have made clear the importance of general deterrence and protection of the community in relation to sexual offences against children.[51] I am satisfied in the circumstances of this case, the need for specific deterrence and the need for community protection, is decreased. There is also a need though for any sentence to facilitate your rehabilitation as appropriate. Ultimately, however, your serious offending must be denounced on behalf of the community and you must be justly punished for your crimes.
[51] Tewksbury (a pseudonym) [2018] A Crim R 205 at paragraph [82].
72Charges 1 and 2 occur within the same episode and represent different acts of violation of your victim. There will be substantial concurrency on the sentences imposed on those counts. Further, given your offending occurred years apart in somewhat different circumstance and given that there is a statutory presumption of cumulation once I am considering Charge 3,[52] there is an obvious need for a degree of cumulation to be imposed on the sentence for the last incident of Incest, subject, of course, to overriding principles of totality.
[52]s.6E of the Sentencing Act1991 (Vic) – to be cumulative unless otherwise ordered.
73Finally, in affixing an appropriate sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
74The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Due to the constellation of mitigatory factors in your case, I have concluded it is appropriate to allow for a longer than usual parole component to your sentence. Accordingly, the non-parole period, that is, the period of imprisonment to be served before which you become eligible for parole, will be shorter than usual to appropriately take into account the number of mitigatory factors in this case and to facilitate your reintegration into the community and ultimate rehabilitation.
Sentence to be Imposed
75I come now, Mr Cain, to the portion of my sentencing remarks where I pass sentence on you. As I have said earlier, there is no alternative to me but to impose the head sentence and a non-parole period to be served immediately.
76On Charge 1, Indecent Act with a Child Under 16, you are convicted and sentenced to 18 months' imprisonment.
77On Charge 2, Incest, you are convicted and sentenced to four years' imprisonment. This is the base sentence.
78On Charge 3, Incest, you are convicted and sentenced to three years eight months imprisonment. On this charge you are sentenced as a serious sexual offender within the meaning of the Act. Such an entry will be made in the records of the Court.
79I order six months on Charge 1 be served cumulatively on the base sentence. That should take it to four years and six months.
80I further order that 14 months imposed on Charge 3 be served cumulatively on Charge 2, as well as on that accumulated portion of Charge 1.
81It is my intention to impose a total effective sentence of five years and eight months imprisonment.
82In your case, Mr Cain, I order that you need to serve a period of three years before becoming eligible for parole.
PSD
83Pursuant to s18 of the Sentencing Act, I declare a period of seven days have already been served by way of pre-sentence detention and I will order that this period be administratively deducted from your sentence.
s6AAA
84Mr Cain, I am obliged under s6AAA of the Sentencing Act, to tell you what sentence you would have received, had you not have pleaded guilty. In this case, I would have imposed a total effective sentence of seven years' and eight months imprisonment, with a non-parole period of five years four months.
Sex Offenders Registration Act (SORA)
85
Finally, having been convicted of relevant Class 1 offences under the
Sex Offenders Registration Act[2004], registration under the scheme is mandatory and the reporting period is for life.[53] Documents will be forwarded to you that outline your obligations under that regime that Mr FitzGerald will take you through in due course.
[53] s. 34(1)(c)(i)
86HIS HONOUR: Are there any matters that require clarification?
87MR TEO: No, Your Honour.
88MR FITZGERALD: No, Your Honour.
89HIS HONOUR: I have just had confirmation that this requirement under the Sex Offenders Registration Act can be processed without the accused signing and I will do it that way. But I would be very grateful if you can take your client through the obligations as well.
90MR FITZGERALD: Yes, thank you, Your Honour. We'll arrange a meeting with him next week via video link and go through those with him.
91HIS HONOUR: All right. Can I extend my thanks to counsel for the quality of their written and oral submissions and the sensible sensitive way in which this case was approached. I particularly give thanks to you, Mr Teo, for assisting me throughout the Circuit. It think this is the last matter throughout the circuit, so thank you.
92MR TEO: Thank you, Your Honour.
93HIS HONOUR: What I propose to do if you want, Mr FitzGerald is simply leave the link open for you for 10 minutes. If you don't mind my staff here, you can have a frank discussion with your client about the result.
94MR FITZGERALD: Yes, thank you, Your Honour. I'll take you up on that, if I may.
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