Director of Public Prosecutions v Case (a pseudonym)
[2021] VCC 1488
•4 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDGAR CASE (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 September 2021 (Plea) 8 June to 18 June 2021 (Trial) |
| DATE OF SENTENCE: | 4 October 2021 |
| CASE MAY BE CITED AS: | DPP v Case (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1488 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Trial – Pleas of guilty to three charges – Convicted of 5 charges by jury – Sexual penetration of a child under 12 years – Co-accused mother and 6 year old son with developmental issues, autism and ADHD – Acts filmed – Distribution of child abuse material via USB – Possession of child abuse material – Prior offences – More serious than middle of the range offending – Serious sexual offender – SORA – Imprisonment – Non parole period
Legislation Cited: s49A(1), s51B(1), s51C(1), s51D(1), s51G(1) Crimes Act 1958
Cases Cited:Brown v The Queen [2019] VSCA 286 - Lugo v The Queen [2020] VSCA 75 - Berichon v The Queen [2013] VSCA 319 - DPP v Gillen [2019] VSC 1371 - McPherson v The Queen 2021 VSCA 53 - Minehan (2010) 201 A Crim R 243 - DPP (Cth) vGarside [2016] VSCA 74 - Worboyes [2021] VSCA 169 - Bugmy (2013) 249 CLR 571 - Tobin v The Queen [2021] VSCA 180 - Dalgliesh (2017) 91 ALJR 1063 - R H McL v The Queen (2001) 203 CLR 452 - Gordon v The Queen [2013] VSCA 343 - Deakin v The Queen (1984) 11 A Crim R 88
Sentence:Total effective sentence of 13 years and 6 months imprisonment with a non-parole period of 9 years imprisonment. 983 days of presentence detention declared and pursuant to s.6F Sentencing Act 1991 (Vic) the offender is sentenced as a serious sexual offender in respect of all charges.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher (Sentence) Mr A. Grant (Plea & Trial) | Office of Public Prosecutions |
| For the Accused | Mr M. Habib | Slater and King Lawyers |
HIS HONOUR:
1In this matter, Mr Case[1] comes before the Court to be sentenced in regard to the convictions recorded against him in Shepparton on the 18th of June 2021. He was born in February 1983, he is 38 as of today. In the trial, Mr Grant appeared on behalf of the Director and today Mr Fisher appears. Mr Habib has appeared for Mr Case throughout.
[1]Pseudonym used. Throughout these reasons pseudonyms have been used to ensure that there is no possibility of identification.
2Mr Case stood trial in regard to 26 charges in indictment number ending 510.2. Mr Case pleaded guilty to Charges 27,28 and 29 before the jury. During the trial by direction, pursuant to s241(2)(b) of the Criminal Procedure Act, not guilty entries were made on the record in regard to Charges 7, 8, 9, 21 and 23.
3On 18 June 2021, the jury found Mr Case guilty of three charges of sexual penetration of a child under 12 years of age, Charges 10, 11 and 12. Such are offences under s49A(1) of the Crimes Act, for which the maximum penalty prescribed by Parliament is 25 years imprisonment. That in itself is an indication of the seriousness of these offences.
4Such are also deemed to be Category 1 offences and pursuant to s5(2G) of the Sentencing Act, must be met with sentences of imprisonment. Pursuant to s49A(3) of the Crimes Act, the standard sentence prescribed is 10 years imprisonment. Such scheme became applicable to your crimes on 1 February 2018, pursuant to Act 34 of 2017. Hence this sentence that I am about to pronounce, is therefore subject to s5A(3), and s5B(2)(a) and (b) of the Sentencing Act.
5As detailed by the Court of Appeal in Brown v The Queen [2019] VSCA 286, [4] and Lugo v The Queen [2020] VSCA 75, such standard sentence is but one of the factors to be considered under s5(2) and does not have primary focus. It is simply one of the factors in the intuitive synthesis which I must bring to the sentence, which relates of course to all factors that have been put to me, in particular, the factors put on your behalf by way of mitigation by Mr Habib.
6Pursuant to s11A(4) of the Sentencing Act, the Court must fix a non-parole period of 60 per cent of the relevant term and pursuant to s(5)(b), such applies to an aggregate sentence, unless I determine that it is not in the interests of justice to so do.
7An offence against s49A(1) is also a serious sexual offence pursuant to Schedule 1, Clause 1(a)(v) of the Sentencing Act, as is the crime under s51C(1), see (a)(xvig), the crime under s51D(1), see (a)(xviha), the crime under s51G(1), see (a)(xvihc) and s51B(1), see (a)(xvih). Mr Case is already a serious sexual offender pursuant to part (a) of the definition of a serious offender, and clause (a)(g) of Schedule 1, and has to be so sentenced accordingly on all charges.
8I should have indicated that Mr Case is also subject, because of these findings and the recordings of guilt that I will make, to sexual reporting legislation and is so subject for his life. The normal practice is for the Court, when sentencing an offender in Court, for him to be given such certification to sign. The practice now, due to COVID-19, is that that will be sent through to the prison and
Mr Case will be asked to sign. I think that is the practice, Madam Associate, is it not?9ASSOCIATE: That's correct, Your Honour.
10HIS HONOUR: All right. Coming back then to the Serious Sexual Offender Legislation, as a result of such designation in regard to all charges, pursuant to s6D of the Sentencing Act, the primary purpose of this sentence must be the protection of the community and further, insofar as s6E of the Sentencing Act, the sentences for such relevant sexual offences must be cumulated, unless the Court directs otherwise.
11I should note, that there was no submission by Mr Grant on behalf of the Director, in regard to any of those serious sexual offences, that a non-proportionate sentence should be imposed.
12Mr Case was also convicted of Charge 13, being an offence pursuant to s51B(1) of the Crimes Act, for which the maximum penalty prescribed by Parliament is 10 years imprisonment, the charge of involving a child in the production of child abuse material.
13The jury also found Mr Case guilty on the same date of Charge 26, that is, producing child abuse material, an offence under s51C(1) of the Crimes Act, for which the maximum penalty prescribed is 10 years imprisonment.
14The jury were not able to reach a verdict on Charge 19 and pursuant to s177 of the Criminal Procedure Act, were discharged from reaching a verdict. A Notice of Discontinuance as to this charge was subsequently entered by the prosecution.
15At the trial, not guilty verdicts were delivered, in regard to Charges 1, 2, 3, 4, 5, 6, 14, 15, 16, 17, 18, 20, 22, 24 and 25.
16The charges to which Mr Case pleaded guilty before the jury on 7 June 2021 were:
(a) Charge 27, produce child abuse material on 1 October 2018, when he downloaded the videos of 1 April 2018, onto the green USB stick, an offence pursuant to s51C(1) of the Crimes Act, which has the same penalty as I pronounced in regard to Charge 26;
(b) Charge 28, distribute child abuse material, which offence occurred on 16 October 2018 when Mr Case forwarded a screenshot of such videos to Ms Gillen[2], an offence under s51D(1), which again has the same penalty as Charges 26 and 27;
(c) Charge 29, to which Mr Case pleaded guilty was a charge of possession of child abuse material, which was the USB found on his premises when a warrant was issued on 18 October 2018, which was the USB onto to which the videos had been downloaded, as per Charge 27. Again, the maximum penalty prescribed for this offence is 10 years imprisonment.
[2]Pseudonym used.
17On the plea, heard on 7 September 2021, the prosecution tendered as Exhibit A the amended prosecution opening. Such opening reflected the verdicts of the jury. Mr Habib accepted such opening as the facts upon which I am to sentence his client.
18On that day, the prosecution also tendered on the plea:
(a) Exhibit B, a copy of the sentencing remarks of 31 October 2008 of Judge Herriman of the District Court of South Australia;
(b) Exhibit C, which was a copy of the sentencing remarks of Judge Soulio, again of the District of South Australia of 18 May 2010; and
(c) Exhibit D being the prosecution sentencing submissions, dated 4 September 2021.
Analysis of Verdicts
19We come then to an analysis of the verdicts. Both after verdict, and at the plea, the jury verdicts were discussed. Counsel submitted that the guilty verdicts come about from the fact that the charges occurring in the first video, being the actions between Ms Gillen and the victim, her son, as detailed in Exhibit F, that is the oral transcription, and as explained in the statement of agreed facts, Exhibit K, must have been reconciled by the jury with the telephone record of the communications between Mr Case and Ms Gillen, being tendered in the trial as Exhibits G and H, in order for the jury to accept Ms Gillen's evidence beyond reasonable doubt, as to the causing of the criminality which occurred in the first video by Mr Case.
20Such findings having been made, despite the warnings given as to
Ms Gillen's evidence and the fact there was no independent supporting evidence of Ms Gillen.21As counsel submitted, where such reconciliation was not available, for example, in the second video taken that day, and where the transcription demonstrated perhaps some sexual enjoyment by Ms Gillen, the jury were not satisfied, having analysed the agreed facts, as to the second video. That is, not satisfied beyond reasonable doubt that Mr Case had caused such sexual offending.
22As counsel pointed out, there were particular differences between the two videos and they were as follows.
(a) the second video began and was recorded 50 minutes later than the end of the first video;
(b) there were references in the first video, as to the contact with Mr Case, which were not present in the second video;
(c) as I have already said, clearly from the transcription, Exhibit K, there is a question raised in regard to the second video whether Ms Gillen was in fact acting on a 'frolic of her own';
(d) given the fact that this recording, that is the second video took place 50 minutes later, the other part of the submission from counsel was the question as to whether Mr Case in such second video, was in fact taking part by way of causation, as was alleged by Ms Gillen, given the differences between the videos.
23Clearly, by the verdicts, the jury as to Charge 13 and Charge 26, were satisfied with the evidence given by Ms Gillen as to the arrangements made by
Mr Case for, and his request made in such calls, both prior and during the video, that is, video one, and were satisfied as to him causing the production and the child to partake in such production.
Prior Offending
24I then come to the prior offending. Mr Habib accepted the priors of Mr Case handed to the Court. Of particular note was the sentence in October of 2008 by Judge Herriman, when Mr Case pleaded guilty to three representative counts, involving some 43 occasions of unlawful sexual intercourse with a 13 year old girl, over a period of 13 months, which in fact produced a pregnancy. Mr Case was aged between 23 and 24 at the time of such offending and for such, he received a 16 month sentence.
25Significantly, in analysing Mr Case’s priors at the time, His Honour said this, that
Mr Case 'had a very limited regard for the law', [8], and further, considered that the criminality of Mr Case was 'wilful and predatory conduct'. To that date, there had been no prior sexual offending by Mr Case.26In 2010, Judge Soulio sentenced Mr Case for predatory behaviour and the possession of pornography, involving children under the age of 12. It is noted that in such sentence, his Honour referred to a conviction recorded in July of 2007 of aggravated indecent assault against a domestic partner. Despite the Court seeking details of same, there has been no further enlightenment possible, on advice from the Director.
27The behaviour in regard to that sentence in fact involved the child, of which Mr Case was earlier sentenced by Judge Herriman. There were five videos and one still image of sex acts which involved Mr Case with the child in the earlier offending. For some reason, it had not been dealt with at the earlier time, perhaps because it was never found. In addition to those videos, for which one would think the earlier sentence had to be taken into account very much, there were 13 additional images of female children aged between seven and 11, and one of a boy aged eight.
28In regard to that sentence, Judge Soulio imposed a period of imprisonment of two years, which he suspended in the circumstances for a period of three years. It seems to me that those two prior offences, and the reference to the third offence are such, that when taken with the offences of which Mr Case has been convicted here, confirm the opinion of Ms Lechner set out in Exhibit 2, tendered by the defence, in particular at p2, that Mr Case has a psychosexual deviance as to offending with underaged females and as of the date of that report, which is current, presents a high risk of further offending.
29In this regard, I of course assure Mr Case that he does not come before this Court to be sentenced again for his prior crimes. As was said by the High Court in Veenv The Queen (No 2) (1988) 164 CLR 465, 477:
'... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'.
30On that same page, the High Court went on, in talking about a person's priors, to say as follows:
'It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind'.
31In this regard, I note the reference by the Victorian Court of Appeal in Berichon v The Queen [2013] VSCA 319, [44], where in talking of dangerous propensities and the community need for protection as being sentencing principles, the Court took the view and used the phrase, insofar as considering a person's prior offences, to describe them as ‘an animating factor’ in the sentencing process.
32It is agreed by the parties that the pre-sentence detention served by Mr Case, not including today, is 983 days.
33I also accept the submission put by Mr Habib, and agreed with by the Crown, that there is a need in this case for Renzella time to be taken into account. That relates to the material tendered from the District Court of South Australia, which has been made Exhibit 3, when a nolle prosequi was entered in regard to offences charging Mr Case for which he had been remanded. That nolle prosequi was entered on 22 September 2017 and insofar as the materials show, the period was 461 days.
34It should be noted that the defence conceded that imprisonment was the only course in this matter, given the criminality of Mr Case, see [26] of Exhibit 1.
Gravity of Offending
35I then come to the issue as to the gravity of this offending. In the sentence of Ms Gillen, anonymised as DPP v Gillen [2019] VSC 1371, Judge Tinney of this Court described the sexual offences committed against her child, as grave, perverted offending, and being such as to be in his view impossible to comprehend and indeed, beggaring belief, [54].
36I think such is also an apt description of the offending disclosed in this case by Mr Case, in particular, in regard to Charges 10, 11, 12, that is, the behaviour of which he is found guilty of causing and of course, the recording of that encapsulated in Charge 13. Mr Case of course has been convicted of causing such offending and the videoing of such offending.
37Of course the immediate distinction to be made is that Mr Case is convicted of:
(a) causing the sexual penetration of the child in three instances, who is under 12 at the time. While the mother was in fact charged with a rolled up count of incest, albeit that both the charges that Mr Case faced and the two rolled up counts of incest that Ms Gillen faced, had the same maximum penalty of 25 years;
(b) the mother, Ms Gillen pleaded guilty to the two rolled up charges, Charges 1 and 3 in her Indictment, which relate to the charges for which Mr Case was found guilty. For each rolled up charge, she was sentenced to seven years gaol. It should be noted, however, that those rolled up charges also encompass similar activity, carried out in the second video;
(c) the actual sexual activity was carried out by the mother on her own child;
(d) of course the point also made is that the sexual activity was more serious in the second video.
38Unlike Judge Tinney, I have had the unfortunate experience, pre-trial, of viewing these two videos. As to the first video, which displays the offending for which Mr Case has been convicted of causing, I want to applaud counsel for their decision, given that there was no issues about the sex acts in the trial, that the jury were not forced to see the video. As a result of counsels' decision, a statement of agreed facts was tendered, being Exhibit K.
39As I say, I have actually seen the video, that combined with Exhibit K, demonstrates that the child victim was:
(a) emotionally pressured;
(b) cajoled;
(c) bribed;
(d) resisting being party to such activity for which he was prevailed upon by his mother, and for which the jury found Mr Case had caused; and
(e) clearly visibly distressed by such crimes.
40The victim of course at the time was a six year old autistic boy, who suffered ADHD and had an early learning development disability. Mr Habib accepted that the child involved was a vulnerable child.
41While such sexual activity was carried out, filmed and forms the basis of Charges 13 and 26, I accept the matters referred to in this regard by the prosecutor at [13], Exhibit D.
42I also accept the remarks made in Exhibit 1 by Mr Habib, [52], of that written submission, being:
(a) that each sexual act in Charges 10, 11 and 12, took place over a short period of time, as detailed in Exhibit K. The first video, that we are concerned with, was eight minutes in length. As best as can be ascertained, from looking at that video, Charge 10 took place in a period of 28 seconds, Charge 11 in a period of one minute and 11 seconds and Charge 12 in a period of 41 seconds;
(b) The second point Mr Habib made was that there was no overt violence. I accept that point, although I repeat my earlier comments as to what the child was doing, while being prevailed upon by his mother and indeed, in such a manner as the jury found was caused by Mr Case;
(c) I do not, as was put by Mr Habib, in this sentence take into account any other aggravating factors, as are detailed in the second video.
43I assess the gravity here as high.
44While complying with the standard sentencing scheme in this type of case is very difficult, see the comments of the Court of Appeal in McPherson v The Queen [2021] VSCA 53, [30] and [31], I have no hesitation in determining that the offending here, that is, in each of Charges 10, 11 and 12, when one takes into account the objective offending as is required by the Act, is more serious than the middle of the range of seriousness for these offences.
Victim
45Coming then, as best I can, to understand the impact on the victim. There is of course no victim impact statement tendered. By consent, tendered as Exhibit E is an advice from the particular department in South Australia which is caring for the child at the moment, by way of foster care. That report demonstrates features of what one could expect in regard to a child, not only being subject to foster care, not being in the 'care' of his mother and having endured the crimes that I have referred to.
46Given his actual underlying vulnerabilities, I am really not able to be precise as to his suffering caused by the offending. The prosecution put in regard to these types of offences, that they are indeed promulgated by the Parliament, on the presumption that children are harmed by premature sexual experiences of all kinds, [10] of Mr Grant’s submission. I make the point insofar as that impact was concerned such was not disputed by Mr Habib.
47As to the downloading and possession of child abuse material, the authorities are replete with the vice and degradation caused to all children who are so victimised. I was referred by the prosecutor to the principles set out in Minehan (2010) 201 A Crim R 243 and I take into account all those principles. As I said during the plea, similar principles were expressed by the Victorian Court of Appeal in DPP (Cth) vGarside [2016] VSCA 74, [24].
48As described, the video depicts Ms Gillen naked with her child, the child being also naked, that is her son, and as the video demonstrates, twice penetrating her mouth with his penis and once having him utilise his fingers to penetrate her vagina. Charge 13 only relates to the sexuality in the first video, as does the downloading charge of which the jury found him guilty, Charge 26.
49Charges 27 and 28 relate to both the videos. However, it should be said that such involves a further production by downloading to a USB of exactly the same sexual activity recorded on the day of the Charges 10, 11 and 12 by way of the two videos and as to Charge 28, again, involved a forwarding to Ms Gillen for the purpose of blackmailing her of a portion of one of such videos.
50The expert analysis of the videos and the exhibits agreed to by counsel, by way of explanation to the jury, demonstrate that the videos had only been played once, apparently when Mr Case returned from South Australia and had not passed out of the possession of Mr Case. Hence, Charge 29 involved, that is the possession charge, the same two videos which were originally recorded. Insofar as that analysis, I have already said that the first video with which we are concerned, given the verdicts of the jury lasted eight minutes, whereas such expert analysis shows that the second video recorded later, lasted eleven minutes.
51As I have determined, these crimes by their very nature are crimes of a serious degree, but of course, insofar as the abuse material is concerned, the crimes are limited by their volume, and the fact of limited exposure which is confined to the circumstances I have just described. Having been so recorded, they were always of course capable of being further exploited.
52As to Charges 27, 28 and 29, Mr Habib noted that these resulted from a plea of guilty, which was indicated to the prosecution well before the trial, albeit ultimately formally made in front of the jury, and that as a result, such were utilitarian and that Mr Case is entitled to the appropriate discount for those pleas, in particular, the extra utilitarian discount as detailed in Worboyes [2021] VSCA 169, [39].
Parity
53I come then to the next heading, and that is the issue of parity. Such concept is quite complex here. The immediate differences being:
(a) Ms Gillen was charged with two rolled up counts of incest, but her charges involved both videos;
(b) Ms Gillen pleaded guilty to her charges;
(c) Albeit the same penalty prescribed by Parliament, the crime of incest or sexual penetration of ones child in my view, must be seen as more serious than charges under s49A(1). However, of course, the charge of incest under s50C of the Crimes Act, provides for a similar standard sentence of 10 years and indeed, makes no discrimination, provided the child is under 18 years of age;
(d) Ms Gillen received what Judge Tinney described as a 'sizeable discount' for her undertaking to give evidence against Mr Case. Indeed, as is obvious, it must be remarked that she fulfilled that undertaking;
(e) Ms Gillen came before the Court, with no relevant history, indeed no priors at all;
(f) Mr Habib made the point, as best as can be ascertained, that Ms Gillen pleaded guilty to double the charges of which Mr Case is convicted. Indeed, as I have already said, the gravity of the second video was more serious in the sense of more serious offending, albeit the same charge was involved, in that she prevailed upon the child in the second video to have sexual intercourse with her and to place his fist in her vagina. In this regard of course, Mr Habib stressed that it is a grave breach of trust where a mother is carrying out such activity, albeit at the behest in the first video of Mr Case, but is carrying out such activity upon her own child; and
(g) finally, as to Charges 10, 11 and 12, and its recording, Ms Gillen, as to her sexual offending was the actual perpetrator, albeit the finding of causation against Mr Case made by the jury.
54As I have said with such factors, the issue of parity is exquisite. I take all of those factors into account in sentencing Mr Case and seeking as best I can, to apply the principles of parity, given the circumstances that I have just detailed.
Plea
55I come then to the plea. Mr Habib tendered:
(a) Exhibit 1, which were the submissions he made, dated 4 September 2021, and spoke to those submissions;
(b) Exhibit 2, the report of Carla Lechner, a clinical psychologist, that report being dated 13 August 2021;
(c) the materials that I have referred to in Exhibit 3, which have led to the Court accepting the submission, which was also agreed to by the Crown, as to the need for the Renzella allowance;
(d) Exhibit 4 were gaol certifications of urine samples and steps taken by Mr Case in gaol as to counselling and also some imagery dated 2018, as to Mr Case suffering from a dural lesion and consequent dizziness in 2018; and
(e) also tendered was the final exhibit, Exhibit 5, which was the medical material that related to Mr Case's parents.
56In regard to Mr Case's personal history, I note the details as set out by
Mr Habib in Exhibit 1, [13] to [24]. I note that these have been rehearsed in the report, Exhibit 2 of Ms Lechner. I note the issues as to the early sexual abuse experienced, the hypervigilance in Mr Case's character, which is particularly impacting upon him in gaol. Given the offences I imagine it is difficult enough to be in gaol, that is as a child sexual offender, without having inherent hypervigilance as part of your personality. I note the diagnosis of clinical depression. I accept, for the purposes of Verdins principle number five, that prison for Mr Case would involve far more difficulty than a person of normal health.57Taking into account the personality as described, it is necessary for me to read from the report of Ms Lechner, Exhibit 2 dated 13 August 2021. In particular, I want to read from p8 and perhaps I will just read from p2, because I have referred to this earlier. It begins on p1:
'Mr Case presents with symptoms of major depressive disorder and borderline personality disorder. The latter features, effective instability, impulsivity, interpersonal mistrust, engagement and self-defeating behaviours and a fear of abandonment. He is therefore likely to be insecure in his intimate relationships and attempt to assert dominance, either by virtue of age or psychological abuse/intimidation. Mr Case has a history of psychological deviance. This being reflected in previous offending with underaged females and production of child pornography. The current offending suggests a move into paedophilic sexual interests, although Mr Case strenuously denies this. He currently presents as 'a high' risk of further sexual offending'.
58As I said, I then come to p8, where the following is said:
'Mr Case presents with symptoms of major depressive disorder, borderline personality disorder and sexually deviant interests. At face, hebephiliac and paedophilic interests, possibly tied to a desire of dominance in a sexual relationship. He is already prescribed antidepressant medications. The efficacy of this in alleviating symptoms need to be monitored. He copes best with structure, routine and minimal level of stress. Therapy approach to intervention is recommended. In respect of his sexual offending and apparently deviant sexual interests, further assessment by SOATS is strongly recommended. Mr Case's denial of his offending is a hurdle to his participation'.
59It is quite clear to me that the principles of Bugmy (2013) 249 CLR 571, 592-3, [37], as referred to by the High Court, apply given that background. It may well explain the deviation, I am not sure. However, given the assessment by Ms Lechner, the issue as to the priority to be attached to community protection must of course be very prominent, not only on the principles of Bugmy, but also on the serious sexual offender principles and that balance is exquisite.
60The next matter relied upon by way of mitigation by Mr Habib was the Renzella allowance. The period involved is some fifteen and a half months, that is 461 days. It must be taken into account, and has importance in regard both to the aggregate sentence and the non-parole period.
61The next matter relied upon by Mr Habib was the issue of delay. The matter was originally set down for trial in, as I understand it, May of 2018. It had already been indicated by then that Mr Case would plead guilty to Charges 27, 28 and 29. At or about that time, or after those matters were agreed to, the co-offender, that is Ms Gillen, made her statement on 6 August 2018, and as a result, a new indictment for an additional, at least twenty, charges issued.
62The original date for the trial was late 2020 and as a result of it being necessary to be heard on circuit in Shepparton, and of the impact of COVID-19, the matter was not able to be finally dealt with till June of 2021. I should say that there is no untoward delay or fault by the Director, given the circumstances that I have just described. However, there has been a considerable delay that Mr Case has had to endure and he is entitled to an appropriate discount for that fact, as put by his counsel.
63Coming then to the issue of COVID-19 and its impact upon sentencing. I accept that for the whole period of the remand, which has been agreed today, Mr Case has been subject to the rigours of being on remand while we have all been subjected to the impact of this virus. In a way, Mr Case is safer than the rest of us because certainly until the most recent days, there has been no experience, by dint of some very good work it would appear, of community spread within the prisons. However, at the same time, that has meant untoward lockdowns, it has meant inability to be visited, for example by his parents, reduced programs and all of those matters are appropriate to be taken into account. As I also indicated, in regard to the charges of which he has pleaded guilty, the principles of Worboyes [2021] VSCA 169, [39], apply.
64The final matter put by Mr Habib was the issue of totality. Both counsel and myself discussed the issue of cumulation, which was part of the totality discussion as well. That is the cumulation required because of the principles of being sentenced as a serious sexual offender and how that plays out in regard to particular charges, but also in the final submission made by Mr Habib, both in his written document and oral submissions, that the Court, because of the number of matters necessary to take into account, but in particular on the issue of totality, despite the seriousness of this offending, needed to avoid a sentence which was crushing.
65In particular, it was submitted by Mr Habib as to Charges 10, 11, 12 and 13, that all relate to the one incident and need cumulation to be taken into account. Charges 26, 27, 28 and 29, all relate to the same material albeit, that the material was used for different purposes, and further Charges 27, 28 and 29 are different in the sense that an appropriate discount needs to be made in regard to those charges because of the guilty plea.
66It is also important Mr Case that you understand that albeit, insofar as the charges of which you have been convicted, there is no benefit to you by way of a discount of your sentence because of remorse shown, because you choose to go to trial you do not suffer any extra penalty. The only consequence is you are not able to call on your own behalf and nor was Mr Habib, insofar as the charges of which you have been convicted after trial, to put remorse as a mitigatory factor.
67I have considered in this sentencing calculus, McPherson, [30] – [31], Tobin v The Queen [2021] VSCA 180, [35] and [50] and of course Judge Tinney's sentence of Ms Gillen. Such cases have been decided, two by the Court of Appeal and of course one by Judge Tinney, subsequent to the introduction of the standard sentencing scheme.
68Mr Case is of course, as detailed in Dalgliesh (2017) 91 ALJR 1063, 1072, entitled to a just and individualised sentence upon the facts of this case, which this Court is always at pains to deliver.
Sentence
69After much consideration of the issues I have identified Mr Case, you will be convicted of all these charges and sentenced as follows. You can remain exactly where you are, obviously there is no option for - that we normally would require you to stand to be sentenced.
70Firstly, I indicate, you are sentenced on all charges as a serious sexual offender.
71Secondly, under the sexual reporting scheme, you are required and subject to that Act to reporting for life. You will be given a notice in that regard. I know that you have experience of that because during the trial, it came out that you were in fact reporting, as I understand, because of such requirements from South Australia.
72As to the charges, firstly as to the charges of causing sexual penetration to a child under the age of 12, on each charge you will be sentenced to imprisonment for 12 years. That is, Charges 10, 11 and 12. I impose such sentences upon my finding that the criminality in each charge was not mid-range offending.
73In this regard, I again refer to McPherson and the comments of the Court of Appeal. Given my assessment of the gravity, depravity and the vulnerability involved in these charges, the sentences imposed take into account the high need to reflect principles of general deterrence, denunciation and punishment.
74As to the production charge involving a child, being Charge 13, which occurred on the day of the offending of the earlier three charges I have referred to, I sentence you to three years imprisonment.
75As to the production Charge 26, involved in copying the videos onto the green USB, I sentence you to imprisonment for nine months, that offending having occurred on 27 April 2018.
76As to the offence of 1 October 2018 of production of such material by downloading from one USB onto another, that is the green USB to the red and black USB, Charge 27, I sentence you to six months imprisonment.
77As to the distribution of material on 16 October, that is the screenshot taken from one of the videos and sent to Ms Gillen for the purpose of blackmailing her to come back to you, that is Charge 28. I sentence you to six months imprisonment.
78As to the possession charge of the green USB, found pursuant to warrant on 18 October, which encompasses the two videos being Charge 29, I sentence you to six months imprisonment.
79As to cumulation, I have referred to the submissions of counsel and in regard to all charges, I am required to act in accordance with s6E of the Sentencing Act. I refer to the High Court in R H McL v The Queen (2001) 203 CLR 452, 476 to 477, [75] to [76], and further the comments of Redlich JA as he then was, in Gordon v The Queen [2013] VSCA 343, [74] where His Honour said:
'A Sentencing Judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence. Ensuring there is no disproportion between the totality of the criminality and the totality of effective length of sentences imposed. A Judge is also required to ensure that totality of principle is applied in a manner that not undermine the legislative policy inherent in s6E of the Sentencing Act 1991. This tension between the policy underlying s6E and the principle of totality is difficult to reconcile. Authority is thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s6E and the principle of totality'.
80As I have said, Mr Habib submitted that the sentence should not be crushing. I find in this case the solution of the tension referred to by His Honour in Gordon, is difficult. Totality must, in my view, prevail to ensure, as required by the High Court in Dalgliesh, that a just sentence is passed upon Mr Case and as such, I order as follows.
81The sentence on Charge 10 of 12 years, shall be the base sentence. I order that 12 months of the sentence on Charge 12 and six months on the sentence of Charge 13, be cumulated with the base sentence and upon each other, to produce an aggregate sentence of thirteen and a half years.
82As to the non-parole period, given the classification of the offending in regard to Charges 10, 11 and 12, and the depravity and vulnerability involved, and taking into account the principles set out by the High Court in Deakin v The Queen (1984) 11 A Crim R 88, 89, I have determined that it is not in the interests of justice to comply with s11A(4)(c) of the Sentencing Act, and I impose nine years as the period which Mr Case must serve before being eligible for parole, which I consider appropriate in the circumstances to satisfy all of the purposes for which such a minimum period is imposed.
83Pursuant to s18, I declare that the period agreed today, being 983 days, be deemed service of this sentence and the declaration to such effect be recorded in the records of this Court.
84Pursuant to s6AAA, in regard to the charges to which Mr Case pleaded guilty, being 27, 28 and 29, the totality of the circumstances raised in this sentence, complying with the requirements of Parliament to determine what sentence would have been appropriate, had he not pleaded guilty, is clearly difficult. Doing as best I can in each case, can I indicate that I would have imposed a sentence of nine months and not six months.
85I have signed the disposal order requested.
86Insofar as s6F of the Sentencing Act, I order that it be recorded in the records of this Court, that on all offences of which Mr Case has been found guilty and is sentenced, pursuant to that finding and his own plea, he is sentenced as a serious sexual offender.
87Mr Case, the end result of that will no doubt be explained to you by your counsel and instructing solicitor. Can I indicate that what it means Mr Case to you, is that the aggregate sentence, after taking into account the Renzella time, is thirteen and a half years that you have to serve for these crimes, and the minimum period that I have imposed for you to serve before being eligible for parole is nine years. Insofar as that sentence is concerned, the 983 days that you have served have been declared as service of this sentence.
88Mr Case, if you can just relax there for a second, I will ask counsel if there is anything I need to clarify. Mr Fisher?
89MR FISHER: No thank you, Your Honour, nothing.
90HIS HONOUR: Mr Habib?
91MR HABIB: Not to be a stickler, Your Honour, as I understand, ‑ ‑ ‑
92HIS HONOUR: Yes, yes Mr Habib.
93MR HABIB: Thank you, Your Honour. Your Honour is aware how detailed I'm trying to be. As I understand Your Honour's sentence, that I believe that it needs to be noted to Mr Case to satisfy the Act. That means that in Charges 11, 27, 28 and 29, that they are wholly concurrent.
94HIS HONOUR: Well I don't know whether it has to be noted does it? I thought it's automatic under the Act.
95MR HABIB: Because Mr Case is being sentenced as a serious offender, then it's automatically cumulative, unless Your Honour notes otherwise.
96HIS HONOUR: No, no, well I can tell you that there is a draft provision to the order, which my associate presented me with, which makes that very point and I thought it wasn't necessary, but if you want that in, we'll put it in.
97MR HABIB: As the Court pleases.
98HIS HONOUR: All right. Any other matters?
99MR HABIB: Your Honour, I'll simply seek the indulgence of the Court to have a moment with my client?
100HIS HONOUR: Sure. Can I thank both counsel and in particular, if you could convey this Mr Fisher to Mr Grant, not only for their assistance through the trial, but their assistance in what I would think is obviously been a very difficult sentence.
101MR HABIB: Your Honour, there is one thing that I just forgot. Does Your Honour still intend on - in relation to the Open Courts Act, ‑ ‑ ‑
102HIS HONOUR: Yes, that's right, I'd forgotten that myself and I was going to raise it. I've got two notes here. As you will know, in Judge Tinney's sentence, there was a nom de plume used for Ms Gillen and I have used her name in the sentence, but my associate will also create a nom de plume for her. The issue of suppression is, as you know I made an order last time and we had a representative of the fourth estate here who professionally said, having heard it, that it was not the intent of his organisation to make any reporting.
103It would be my view, that's subject to what both counsel think, just because, and I don't make this order because I don't trust the press, but just to ensure that - this child has had a pretty tough life already, is not subject to any disclosure. I would be inclined, in his interest, to suppress any publication of this sentence until he reaches the age of 18. I understand he's 11 now.
104MR HABIB: Yes, Your Honour. Your Honour made reference to it in your sentence I believe. Your Honour has a copy of the letter from ‑ ‑ ‑
105HIS HONOUR: Yes.
106MR HABIB: ‑ ‑ ‑ the South Australian Department dated 16 September 2021?
107HIS HONOUR: Yes.
108MR HABIB: I'll note that Judge Tinney, His Honour, referred to every involved party by way of a nom de plume, and I'd seek that to be the same in this matter.
109HIS HONOUR: I think that's what my associate does. Madam Associate, is that right?
110ASSOCIATE: Yes, Your Honour, and I've checked with the County Court publications, it's the preference that we use the same pseudonyms that are used in His Honour Judge Tinney's sentence for consistency.
111HIS HONOUR: I thought that was right, so you'll use for Ms Gillen the one that His Honour used?
112ASSOCIATE: Correct, Your Honour and also Mr Case and ‑ ‑ ‑
113HIS HONOUR: And then you'll create one for Mr Case?
114ASSOCIATE: Judge Tinney actually created one for Mr Case which was Mr Case. I just have to provide him a first name.
115HIS HONOUR: I see, very well.
116HIS HONOUR: No.
117MR HABIB: No, so I ‑ ‑ ‑
118HIS HONOUR: Yes I did, I did refer to the issue in - on the issue of delay of the matter, finally being dealt with on circuit in Shepparton.
119MR HABIB: On circuit in Shepparton is not a specific concern, Your Honour, it's more specific ‑ ‑ ‑
120HIS HONOUR: Yes.
121MR HABIB: ‑ ‑ ‑ small towns are being referred to.
122HIS HONOUR: No, no, very well. All right, now come back to the - I haven't - what's the ‑ ‑ ‑
123MR FISHER: Yes, Your Honour, can I just say something very briefly in relation to the suppression order?
124HIS HONOUR: Yes certainly, Mr Fisher.
125MR FISHER: It's not sought by the Crown in the circumstances and assuming that there'll be anonymisation and a pseudonym employed, that in my submission and upon my instructions, would be sufficient in the circumstances of the case.
126HIS HONOUR: Yes, well I don't think it was made by Judge Tinney, as best I can ascertain.
127MR FISHER: No.
128HIS HONOUR: And the purpose I put it on, after the plea, was simply to ensure there was no publicity at all until the sentence was made.
129MR HABIB: If it can assist, Your Honour, I'd adopt my learned friend's position. If the case is being treated as Your Honour intends, there's no need for suppression, in defence's view.
130HIS HONOUR: Yes all right, well I'll accept the submissions of counsel on that matter. That solves that issue.
131MR FISHER: As Your Honour pleases.
132HIS HONOUR: All right, well as I said, did I say Mr Fisher, if you convey to Mr Grant my thanks and Mr Habib, thank you and your instructors in what's been a long and arduous matter in many ways.
133MR FISHER: I'll convey that ‑ ‑ ‑
134HIS HONOUR: Thank you, Mr Fisher.
135MR FISHER: I'll convey that, Your Honour, thank you.
136HIS HONOUR: All right, so we'll put you and your client in the lobby.
137MR HABIB: Well Your Honour I might note this, it might be easier that if the Court stands down, I don't believe that we would need to return to before Your Honour and I'd simply have a moment or two on the link before it's terminated.
138HIS HONOUR: All right, we'll do that and - but I think you'll have to - be able to communicate, I think you've got to be put in the lobby, don't you Madam Associate?
139ASSOCIATE: Everyone else in the lobby, Your Honour.
140HIS HONOUR: Everyone else in the lobby?
141ASSOCIATE: Yes, Your Honour.
142MR FISHER: Perhaps I could - if we're not returning, can I just leave the link completely once Your Honour has adjourned the Court?
143HIS HONOUR: Yes absolutely. Well I'll adjourn and - yes all right, Mr Case well all the best. It's recommended you take the opportunity to continue that counselling that you've had and seems to me from what Ms Lechner says, that that's ‑ ‑ ‑
144OFFENDER: Counselling of something I didn't do, yeah whatever, cool.
145HIS HONOUR: All right, good.
146OFFENDER: Yep. Good on you.
147HIS HONOUR: Thank you. Yes, Mr Tipstaff.
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