Director of Public Prosecutions v Charles (a pseudonym)

[2021] VCC 1282

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN CHARLES (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 September 2021
CASE MAY BE CITED AS:	DPP v CHARLES (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1282

REASONS FOR SENTENCE

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Subject:

Catchwords:     Sentence -Jury verdict -Guilty of Indecent Act with Child Under 16 x2 - Sexual

Penetration of Child Under 16 x2 - Course of Conduct charges between 2001

and 2004 - significant impact on victim - offender karate instructor of victim

drove her home after training - offences committed in the car - determination

by Trial Judge of objective gravity of offending frequency and duration -

S 5(2F) Sentencing Act - No priors - Weight to assign to previous good

Character - effect of delay - No remorse - consequent moderate risk of

recidivism - impressive character references -

Legislation Cited:

Cases Cited:

Sentence: Total effective sentence of 8 years and 6 months imprisonment with a

non-parole period of 5 years and 6 months – Sex Offenders

Registration for life.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Ms Michelle Rezsneki
For the Accused	Ms A. Roodenburg	Mr Vincent Azzopardi (Tony Hargreaves and Partners Lawyers)

HIS HONOUR:

1John CHARLES,[1] on 14 April 2021, you were found guilty by jury verdict of four charges.  Charge 1 is a cause conduct charge of indecent act with a child under 16, committed between 1 January 2001 and 31 December 2004, and particularised, there is the victim masturbating you.  The maximum penalty for this offence is 10 years imprisonment.

[1] A pseudonym.

2Charge 2 is a cause of conduct charge of indecent act with a child under 16, committed between 1 January 2001 and 31 December 2004, particularised as you touching the victim's breasts.  The maximum penalty for this offence is 10 years imprisonment. Charge 4 is a cause of conduct charge of sexual penetration on a child under 16, committed between 1 January 2001 and
31 December 2004, particularises you digitally penetrating the victim's vagina.  Charge 5 is a cause of conduct charge of sexual penetration of a child under 16, committed between 1 January 2001 and 31 December 2004, particularises you putting your penis in the victim's mouth.  I note it is clear from the numeration I have just recited, that other charges were dealt with on the indictment.  Two of those were directed acquittal Charge 3 and 8, and you were acquitted on Charges 6 and 7.  Can I still be heard?

3MS ROODENBURG:  Yes, Your Honour.

4MR HAMMILL:  Yes, Your Honour.

5HIS HONOUR:  All right.  I take the maximum that I have mentioned in relation to each count as the first guidepost in the sentencing exercise.  These are penalties of significance which reflect the seriousness and gravity with which the legislators have viewed this kind of offending and are a starting point in the court's consideration. 

6The prosecution in its written plea submissions asserted that as the Charges 4 and 5, the maximum penalty applicable is 10 years on the basis conceded by it, there was no evidence sufficient to establish beyond reasonable doubt that the victim was under the age of 12 years in which case, the penalty applicable would be 25 years. This was so in spite of each charge period on the indictment, of which you were convicted, spanning 2001 to 2004, in which the victim who was born in March of 1990 was between 11 and 14 years of age.

7You were born in April 1974, and at the time of the offending, you were aged between 27 and 30 years of age.  It was further said that the victim, because of the circumstances of your offending, was effectively in your care at the relevant time.  Although it is clear that this description does not indicate the formal aggravating legal feature which pertains to certain classes of sexual offences, which were not charged in this case.  I should indicate that when this sentence is revised and published, it will bear pseudonyms to anonymise the victim's name and your name, given the kind of charges I am dealing with.  I shall refer to the victim by Charlotte ANDERSEN.[2]  These efforts are in order to endeavour to protect her anonymity and privacy.

[2] A pseudonym.

8Charlotte ANDERSEN prepared a victim impact statement which she read out to the court at the plea hearing.  It was a measured and dignified statement of the damage you have brought upon her life of your offending, reflective of the impressive way she gave her evidence and consistent with the courage and resilience demonstrated by her demeanour.

9She wrote that the task of articulating how the offending affected her was a painful and overwhelming task.  Judicial processes has been protracted and traumatic, with cross-examination proceeding at committal and twice at trial.  She is angered by your lack of admission and remorse.  She has endured, as she rightly noted in her statement, arduous and forceful cross-examination which brought her career, her mental health, her mother's occupation, family circumstances and not just her allegations, into focus, but into question in an endeavour to discredit her. Seeking justice has required her to relive the offending, its locations, its circumstances in graphic details.

10This has had an irreparable and devastating impact upon her.  It has affected her enjoyment of life with recurring depression and a bleak view of life and is suffering.  This offending has alienated her from family relationships and loved ones, estranged her from her mother and family.  Your threat delivered in circumstances of the offending, continues to reverberate in her life.  She experiences pervasive feelings of worthlessness and inadequacy.  Pointedly and eloquently she wrote, 'Most overwhelmingly, I feel grief for the life I could have had if I were not abused'.

11Your offending meant those years when life could have opened up to her, were blighted by your grooming, manipulation and sexual abuse.  She feels a keen sense of betrayal by those who could have protected her.  The bitterness and resentfulness is accompanied by the stigma and shame of being abused.  Her sleep has been troubled, with the recurring nightmares and post-traumatic stress disorder, her executive function in concentration has been effected, as well as her eating patterns. She experiences flashbacks and incidental touching causes her distress.

12Her life has been impacted in every aspect from sleep to hours of therapy, managing other people's reactions, processing the information for statements, looking through evidence, countless hours of anxiety and a life unlived.  The abuse:

'You inflicted upon me has created a black hole, that consumes my time, intellect, energy and spirit and leaves room for little else.  My life has suffered for it and I will never get that time back'.

13There have been physical consequences which she described and the medication required to deal with them.  There have been financial consequences of her physical and mental state, disabling her from full-time work and productive stable employment which not only is a significant loss of earnings, but expenditure on medication, health related expenses and professional therapeutic help.

14Her social life was described in pained terms in her statement.  'These impacts have been the hardest felt', she writes.  She has, and continues to experience these effects which she describes in this part of her statement, in which she refers to feeling like a burden to everyone in her life, withdrawing from life, suicidal ideation, distrustful of most people's intention, fearful of ever having a child.

15The court unfortunately hears of the impact of sexual abuse on a daily basis.  These expressions of hurt and damage written by Charlotte ANDERSEN in her statement are not unusual, but the sad norm for those who suffer at the hands of sexual predators, especially have been preyed upon while children.  Just as this statement, these consequences are heartrending and long lasting. 

16One of the primary functions of the criminal justice system is to seek by its judgments, to a court appropriate social rehabilitations to victim, help in this case.  By imposing appropriate punishment, by extracting retribution for the brazen and contumacious offending upon a child, by deterring others from such vile and abhorrent conduct and denouncing this behaviour as unacceptable, falling far from the values and expectations of our society, the court must endeavour to protect those in the community, which deserve not abuse, but protection of children.  The sentencing exercise is also one which must consider the rehabilitative force of Correction, and the impact of just punishment and take it into account.  I will come to these matters in a moment.  It is plainly clear that the social reclamation of a person like Charlotte ANDERSEN, takes place whether anguish and trauma can be heard and taken into account.  It has been heard and I will take it into account. 

17I will describe the details of the circumstances of the offending when I come to deal with the gravity of the offence later, by reference to the evidence.  The plea in this matter proceeded on 24 June 2021.  Apart from the material submitted on your behalf as to your personal background and history, it became clear that there was a divergent view between defence and prosecution, as to the assessment of the objective gravity of your offending.  This is not covered adequately, in my view, by the written submissions, as this was clearly an important consideration.  I therefore sought further detailed submissions from the parties.  This took some time, given the analysis required in the intervening state of the court's work and the impact of the pandemic on the state.

18The issue was stated by the defence as being informed by:

(a) the number of occasions said at first to be 'approximately 20';

(b) 'the duration of the offending' said to be between March and October 2004, based on diary records of Charlotte ANDERSEN and;

(c) 'the age disparity between you and Charlotte ANDERSEN, approximately 20 years';

(d) 'the absence of threats, inducements, degrading conduct or other actions to cause Charlotte ANDERSEN to engage in sex acts', which added a reference to her 'seeking out sexual activity with you';

(e) 'the lack of risk of pregnancy or STDs'.

19During the first hearing, I took issue with propositions (a), (b) and (d) and sought further submissions. I have reviewed the detailed submissions of both prosecution and defence in relation to these matters. The defence, in a document dated 14 July 2021, requests that I make certain findings of fact for each of the cause of conduct charges, namely:

(a) That at the time of the offending, Charlotte ANDERSEN was aged 14;

(b) That the period was between 9 March 2004 and 30 October 2004.

(c) That the offending occurred, it was now said, not on approximately 20 occasions, but on 'no more than 20 occasions'.

20As a result of these submissions, I have reread the entire trial transcript and in particular, Charlotte ANDERSEN's evidence in chief and cross-examination, as well as all other witnesses for the prosecution and for the defence.  For its part, the prosecution responded on 26 July 2021 with further submissions.  It described the defence approach as 'reductionist and a mathematical accounting of the evidence'.

21It highlighted that the defence not assert such a form of 'actuarial reasoning', must be the way the court determines questions of fact, but that it might.  The prosecution argued the court should not adopt this approach, because it makes no allowance for 'the tenor of the evidence as a whole', which it distorts giving examples of paragraphs 8 and 9 of this artificial and contrived 'legal gematria'.  That is an esoteric reference to a peculiar and obscure form of alphanumeric code, which I confess I did not find helpful in the circumstances.

22The prosecution argued that cause of conduct offences enables the prosecution of serial offending, where the specific details of any instance are not disclosed in enough detail by the evidence. Rather, taken together, the incidents described, it must amount to a cause of conduct, having regard to their time, place, purpose of commission and any other relevant matter.

23There is, the prosecution argued, no requirement to define the offending in the - with precision or certainty.  The prosecution invited the court to find you committed 'multiple instances of sexual offending, over a protracted period of time, potentially spanning years'.  The defence went some length to highlight how it said the findings of fact should proceed from the evidence by referring to passages of evidence in the transcript of the file.  It set out the applicable legal principles and tests, then drew conclusions which it invited the court to adopt.

24Having carried out an exhaustive review of the evidence, I am unable to accept the primary propositions put forward by the defence as to (a), (b) or (d).  In order to make clear this conclusion, I will recite parts of the evidence in summary form, before stating those conclusions.  Before proceeding, therefore to the sentence proper, I must deal with the findings of fact for each of the cause of conduct charges.

25The legal principles to be applied in such an exercise are not in dispute between the parties and are in my view, so correctly agreed. Section 5(2)(F) of the Sentencing Act 1991, concerns sentencing an offender for the incidents of the commission of an offence included in a cause of conduct charge. Sub-s(a) provides 'that a court must impose sentence that reflects the totality of the offending, that constitutes a cause of conduct' and (b), 'must not impose a sentence that exceeds the maximum penalty prescribed by the offence, if charged as a single offence'.

26A note to the section in the Act, indicates that if a jury finds a person guilty of a cause of conduct charge, in making findings of fact relevant to sentencing, the Sentencing Judge determines the cause of conduct, in which the person engaged and by reference to which the person will be sentenced.  Precedent establishes that the court must not take facts into account, in a way adverse to the offender, unless these facts have been established beyond reasonable doubt.

27Therefore, stated simply, the duty of the determining the facts relevant to sentencing is constrained by (1) the view of the facts adopted by the Judge must be consistent with the jury's verdict and (2) findings made against an offender, must be established beyond reasonable doubt.  Any reasonable doubt should be resolved in the offender's favour, thus sentencing on a view most favourable to the offender.

28The analysis of the evidence by the defence focused on the issues of the commencement of the offences, its duration and the frequency of the offending.  The defence carried out this review by reference to parts of the evidence and drew conclusions in their submissions from those.  The initial time frame reference is that Charlotte ANDERSEN was born in March 1990, and the year 1990 was the year she came to Victoria with her mother when she was approximately nine years of age and in Grade 4 at school.

29The calculation proceeds from there. I will not recite the details of the submissions.  They were contained in a document which was tendered as a further outline of submissions by the defence dated 14 July 2021.  From the seven main areas of evidence with which it deals, it seeks to draw conclusions which I have mentioned. In my view, that submission is flawed. 

30The analysis which proceeds it with references to trial transcript as selective, as to the issue of the commencement of the offending and its duration, by reference to these aspects, when Charlotte ANDERSEN began training at the Karate dojo, to the first interaction with you at a grading event, to a conversation which first involved sexual references by you to her, to the first sexual contact event, to the evidence of the victim about why she did not tell her mother and the answer she gave, that she did not want 'to out myself as a 13 year old promiscuous girl', to the compliant made to witness Marcos BROOKS,[3] that the sexual activity started when she was 13.

[3] A pseudonym.

31It is said in the conclusion, that it cannot be determined beyond reasonable doubt, that you drove Charlotte ANDERSEN before she was 13.  Having carefully reviewed the entirety of the evidence of Charlotte ANDERSEN and her mother and yourself, I conclude that the assertion is correct.  The entire tenor of the evidence, the details given and the correlation of the matters given in answer by Charlotte ANDERSEN, lead me to accept the proposition, beyond reasonable doubt, that you did not drive her home and commit offences whilst she was 13 years old.

32However, I am persuaded beyond reasonable doubt, and find as a fact, that you did drive her home thereafter, when she was 13 years old, as much in fact was put to Charlotte ANDERSEN in cross-examination in clear terms, during the course of the trial.  The assertion that from that point, the only conclusion to be drawn as to your cause of conduct was that your sexual contact with Charlotte ANDERSEN is entirely and completely encompassed and described as a complete account by the dates and the 2004 diary dates which contain references to sex acts is not tenable.

33In that sense, it is also not tenable to argue that the sexual offending against Charlotte ANDERSEN happened exclusively when she was 14 years of age in 2004.  I am persuaded to the requisite standard of these facts.  The 2004 diaries are a representation of the frequency of sexual contact in that year. The 20 occasions are those noted by symbols denoting sex penetration of a vagina by finger or fingers, fellatio, masturbation and kissing. Out of these 20 noted occasions, nine occasions involved all three serious sexual acts, seven of them describe them masturbation and fellatio, seven describe only masturbation.

34The evidence was that this was not a complete record of that year.  At pp10 and 11 of the diary, there is a type of tally which Charlotte ANDERSEN writes on a diary page, with other numbers, '14, 9 and 7'.  Charlotte ANDERSEN was unable, in her evidence, to say what time frame they were in reference to, but they are different from the numbers which I have just mentioned and referred to above.  On the same pages, there are other symbols like striking out crosshatching with numbers.  These are again different from the two sets of numbers I have just mentioned, '8, 5, 5, 4 and 3'.  They are instances of sexual encounters between you and Charlotte ANDERSEN.  There are also symbols to which Charlotte ANDERSEN could not assign a specific meaning, but which were related to sexual activity in her evidence.

35The 2002 diary have frequent notations about Charlotte ANDERSEN's crush on you.  The 2003 diary, when she was 13, was not recovered by her.  She gave unequivocal evidence that the masturbation of you happened in the vast majority of cases you drove her home. That your digital penetration of her occurred routinely, as did fellatio.  Charlotte ANDERSEN gave evidence that you drove her home when she was 13 years old and she only assigns a mere possibility to you doing that when she was 12.  However, she said in evidence that the 2003 diary would have recorded sexual things that occurred between you and her in that year.

36I do not rely for these findings, on the evidence of Charlotte ANDERSEN 's mother, whose estimate I consider as unreliable, just as her estimates that she gave about travel times between relevant locations.  Similarly, I do not rely on any answers given by you in your interview. It was said at some point by the prosecution that that had been as many 50 times, though I confess that I could not find that reference.  In my view, it is an impossible task to arrive at a complete number, as the defence has endeavoured to do.  Such precision and certainty, so as to narrow the offending to when Charlotte ANDERSEN was 14 and only to the dates noted in her 2004 diary, runs contrary to the entirety of her evidence.

37I am satisfied that I should consider that you began driving her regularly when she was 13 years old and that the cause of conduct included multiple instances of sexual offending against her, that such conduct continued into 2004 when she was 14.  What the diary can do is give a somewhat clearer picture of the frequency of that conduct, as well as the content of that abuse with variations throughout that particular time.

38Charlotte ANDERSEN gave evidence that the sexual abuse lasted a period of three to four years.  This is the general tenor of her evidence, that on the one hand, reflected her uncertainty as it appeared in question.  The commencement and frequency and its conclusion in a numerically precise way.  However, it is clear on the other hand, that what she described was sexual abuse which spanned substantially more than seven months in 2004, when she was 14 years old and which was frequent and consistently connected to you driving her from the days training at the Dojo.

39I do find that on the evidence, the end of 2004 year was the only reasonable conclusion to be drawn as to the endpoint of the abuse, so that the duration is limited within the charged period, to 2003 and 2004.  In my view, that is sufficient particularisation of the offending and I proceed on that basis as being entirely consistent with the verdict of the jury, on the charges upon which they convicted and being limited to the last two years of that period, being the most favourable view of the facts for you.

40This finding deals with the duration and the number and frequency of the offending, that is (a) and (b) mentioned above.  As to (d), I indicated during the course of the plea that to characterise in the context of this trial, the engagement of Charlotte ANDERSEN in sexual acts as 'seeking out such acts' was not acceptable and not a proper reflection of the sexual activity in question.  This is also inherently tied to the argument that there was 'an absence of threats, inducements, degrading conduct or actions to induce or cause Charlotte ANDERSEN to engage in sex acts', a quote from defence submissions.  I do not accept this proposition.  I will explain this position as I briefly summarise the circumstances of the offending.

41When Charlotte ANDERSEN was eight or nine, she moved from the Gold Coast to a regional city in Victoria with her mother. She attended primary school and there met another young girl who introduced her to karate.  The local club was located in a community leisure centre.  Charlotte ANDERSEN then started to train at the club, while still in primary school, ages 9, 10 or 11. 

42The training took place at a dojo by reference to karate culture, that was the name.  Her first year of secondary year, when she was 12, she continued attending the dojo. Charlotte ANDERSEN recalls meeting you at her first grading, where you said to her that you thought she looked older than her age and you thought she was at least 16.  Charlotte ANDERSEN started as a junior and attended classes on Tuesdays at first.  She relied on her mother to pick her up, as well as her friend's mother.

43Because of the nature of her mother's work, she was either late on occasions, or required others to give Charlotte ANDERSEN a lift home, including adult trainers from the dojo.  Charlotte ANDERSEN was talented at karate and progressed up the grades.  As she did so, she trained more than one night a week.  On occasions, she would wait for a lift outside the dojo at the end of her sessions.  You started waiting with her on occasions.  On one occasion, she gave evidence that while you waited with her, you asked her whether she had a boyfriend, what she did with boys and if she had ever been fingered by a boy.  When Charlotte ANDERSEN said no, you said 'You haven't lived until you've been fingered'. 

44After that occasion, on a time when her mother was late and you were waiting with her, Charlotte ANDERSEN gave evidence that you offered to drop her off at home, to which her mother agreed to the offer.  And having made those arrangements, it became routine for you to drive her home.  As Charlotte ANDERSEN progressed up the grades, you dropped her home on more than one day during the week, with training days on Mondays, Wednesdays and Fridays, at times as well.  Others during that time, from the dojo, also gave Charlotte ANDERSEN a lift, but you were the main one.

45She said you drove her home 70 to 80 per cent of the time at the height of frequency and 70 per cent when it was less frequent.  At that time, Charlotte ANDERSEN had a crush on you.  She enjoyed the attention you gave her.  She thought that your interest in her was romantic.  She looked up to you as a senior.  That you were good looking, while realising in her feelings that were wrong, she was a young girl and when this turned into sexual intimacy, she did not want it to stop.

46In my view, it must have been clear to you, that you were a significant adult person in this young girl's life.  You began to dare her to behave sexually towards you during the drive.  You dared her to touch your penis on the outside of your clothes, then inside, then dared her to rub it, then masturbating you.  This touching occurred, she said, nearly all of the time you drove her home.

47It progressed with you upping the challenges, until it got to fellatio upon you, and you penetrating her vagina with your fingers and touching her breasts under her top.  You would tell you that you were aroused and had an erection and told her 'I can't wait till you're legal'.  Charlotte ANDERSEN said this routine, particularly of masturbation and fellatio, would happen 90 to 95 per cent of the time.  At times, you would drive using other routes to her home in order to allow more time for sexual touching.  At one point, you told her that if Charlotte ANDERSEN said anything to anyone, you would have to kill her and it was restated to her.  It was, she said, said in an offhand way, but she took it seriously. 

48On another occasion, when she declined sexual contact because she felt that during the training session, you had been unfair or had humiliated her or had been too hard on her, you told her 'You wouldn't be getting dropped home if it wasn't for me, so you owe me one'.  However, she still felt that she was enjoying your compliments about her karate ability, that you cared for her to drive her home, that you thought she was good looking, paying her attention, showing her and showering her with affection as an older man of senior authority.  That was her evidence.

49You exploited the situation for your sexual gratification. This conduct was rendered more brazen, not just by the age difference, but by the clear power imbalance between Charlotte ANDERSEN and you.  You had a cup of tea with her and her mother in her home, after the very first sexual occasion in the car, and the sexual abuse continued even after the time when you were engaged and then married. 

50In order to please you, Charlotte ANDERSEN pretended to orgasm when you penetrated her and swallowed your ejaculate, so that there would be no mess in your car.  The contention that you used no threats, or inducements, or other degrading conduct or other actions to cause Charlotte ANDERSEN to engage in sex acts is untenable, in my view.  Your demeanour may not have been aggressive, but the situation you created for yourself required Charlotte ANDERSEN to understand discovery would have repercussions. That the attention and affection was predicated on her engaging in sexual acts with you and that the relationship you nurtured with her, was designed to ensure she continued to provide you with sexual gratification.  It was certainly not the case that this could be described as her seeking out this activity.

51Despite her sense that this was a romantic and exciting involvement, as a 13 and 14 year old, the responsibility for this abhorrent and repulsive conduct, rests entirely on you.  It may have been conduct which had no risk of pregnancy or STDs as mentioned in submission, but it entailed acts which violated her physical integrity, which distorted and exploited her feelings towards you by psychological manipulation, which violated and corrupted her innocence, and which abused the trust that she and her mother had reposed upon you.

52This conduct was frequent and a course of behaviour over a significant period of time, in the life of a young girl, which calls for the imposition of just punishment, retribution for this criminality and to promote deterrence of anyone, who would offend in this way.  In my view, your moral culpability is high, as is the objective gravity of your offending.  When coupled with the absence of remorse, this calls for clear denunciation and just punishment.

53I take into account your personal background and circumstances. You are now 47 years of age and this will have been your first period of incarceration, as you come before the court as a man with no prior criminal history. I denote make a finding that this lack of previous convictions has been of assistance to you in the commission of the offence, so that s5AA of the Sentencing Act does not apply.

54Although the general proposition that previous good character is to be afforded less weight in the case of sexual offending against children, and in cases involving other types of offending, I take into account your otherwise good character which remains a mitigating factor and which I am bound to consider.  This previous good character has a bearing on your prospects of rehabilitation and any perceived need to protect the community from you.

55In this sense, I accept, because of your history and the references to which I will refer later, that your prospects are good.  As to community protection, because you are to be sentenced as a serious sexual offender, the aspect of your otherwise good character has to be balanced with other legislative considerations, which I will explain later, and which creates some tension in this context which requires resolution.

56You are third of four sons to your parents, and all whom you have a close relationship with.  You have lived mostly in the Ballarat region on a family property.  In 1990, you commenced a relationship with a woman whom you later married in 2004.  You separated in 2015.  You have two children aged 12 and 13, with whom you have daily contact, including daily dinner and holidays, given you have remained on cordial terms with your ex-wife, who gave evidence in the trial on your behalf.  One consequence of your conviction is the intervention of DHHS which has prevented you from contact with the children, and which has also prevented you from visits or even photographs of them, whilst on remand. 

57You completed Year 12 in 1991 and have a wall classing certificate.  You have had work as a jackaroo and overseer for two years and in 1994, you returned to the family farm to assist your father in its management, which you took over eventually.  In 2007, the property was leased to a pastoral company which is part of a large secondary college.  As a result, you became the farm manager, not only of the family property, but also of the other large holdings of the pastoral company, which directs its profits to educational scholarship for underprivileged children.

58You worked in that role until you were charged in 2017, at which point you were unable to do so, particularly as the managerial functions meant you had interactions with students.  You then acted as a consultant to the pastoral company and you were able to work on their properties which did not have student attendance.  You also undertook other work on farms, drove trucks for transport companies, worked as a driver.  The employer of this later work has offered an ongoing work after your release from custody.  I take this excellent work history into account.  I take into account that you have for many years, given of your time in volunteering service to the club in question, commencing as a junior around 1982 and then as a teacher and trainer.  You are a life member there and have reached the highest rank in that discipline.

59You do not drink or smoke or have ever partaken in illicit drugs and have no health concerns.  I take into account the delay in this case which has been significant and the determination of this matter has been hanging over you for some time.  The chronology contained at paragraph 20 of the defence first submissions, sets out the processes which have taken place.  The time from Charlotte ANDERSEN 's statement to the first committal mention in 2017 are not unusual, nor in truth, is the contested committal and the initial trial direction hearing in January 2018.

60From that point, however, there has been procedural delays through 2019, 2020, beyond your control, and the first trial in March 2020 had to be unfortunately discontinued right at the end of the trial due to COVID-19 concerns.  The second trial was then only able to be reached and heard in March of this year.  That has meant a delay of some four and a half years from the charges.  The vast bulk, at least half of that time, due to pandemic restrictions.  The delay is largely not attributable to your conduct, even if able in part to be explained by unprecedented conditions of emergency and restrictions and it is an important factor.

61It is a matter going firstly to fairness and in my view, it is factor which although is not mitigatory of the offending, should ameliorate the sentence to be imposed.  The same delays of course reflect that in the similar impact upon the victim, but in the case of an accused nevertheless, it represents a period of uncertainty and anxiety which amounts to unfairness, echoed also in extra curial punishment of a personal nature, added to the impact on your work situation which I mentioned before.

62Where delay is not laid at the feet of an accused who has the right to contest the charges and is confronted with inordinate delay, the sentence should reflect this mitigation effect.  However, delay in your case informs the exercise of my sentencing discretion in a limited way, because I cannot infer rehabilitation as fully as I could, in the interim period you had accepted your responsibility and shown remorse for your wrongdoing.  That you have not committed any offences since the offending for which you are to be sentenced is relevant, to the assessment or to the assorted reformation during the period of delay.  So without an unacceptance of wrongdoing and remorse or steps flowing from this, the weight to be given to delay is reduced.

63A report was tendered dated 5 June 2021 from Patrick Newton, a clinical and forensic psychologist.  Mr Newton provided a personal history elicited from you, educational and occupational history as I have outlined above, as well as the relationship and sexual history.  You have worked to develop a cooperative co-parenting arrangement with your ex-wife and your lack of contact from the children currently is naturally upsetting to you.  You reported prominent reactive anxiety and depression in the time also following the verdict.

64You maintained to Mr Newton that nothing happened with Charlotte ANDERSEN and wished to comment no further.  Your distress is not extreme and you are not manifesting more severe features typically seen in a case of major depressive disorder.  You do not meet the criteria for a mental disorder of any kind, a mood disorder, adjustment or anxiety related disorders.  There is no indication of a mental disability or cognitive dysfunction, or personality disorder of the kind which would enliven Verdins principles.

65In your assessment, you expressed that you aspired to high personal standards of conduct and hold clear views about moral and ethical matters.  Although I accept you display no antisocial personality traits, exposed prosocial values.  It is clear, given the evidence and the jury's findings, that there is a clear dissonance between some of these aspirations and what took place in the course of your sexual abuse of Charlotte ANDERSEN.

66It is clear that given the circumstances of the offending, that at the time, you gave into manipulative self-gratification over an extended period towards someone who must have been clear to you was vulnerable to your attention, compliments as I have said.  This is not a result of a mental disorder or cognitive dysfunction, but a relationship which a willing and naive minor, which you cultivated for your own purposes.  Mr Newton carried out a risk assessment for sexual recidivism and found you to be in the low risk range, using the Static-99R evaluation. 

67You also administered the risk for sexual violence protocol, which presented an elevated risk of recidivism.  This was said to be related to the considerations of your offending and your ongoing denial, which also limits the liability for the current design of effective treatment programs to address relevant factors to your risk.  Mr Newton notes such denial is not uncommon at this stage, motivated typically by a need to maintain support networks at a time of elevated stress.

68Taking into account all the information, Mr Newton concludes you present as a moderate risk of recidivism for further sexual offending, a level typical of sex offenders undergoing sentence.  He notes this risk is most likely in contact offending against a known complainant, given the noted instability in an intimate recent relationship. Mr Newton opines that the sex offender registration requirements are likely to have a significant benefit for you.  Finally, if you were able to engage in appropriate treatment, it is likely your risk of recidivism would be reduced to the low range. 

69An addendum report dated 15 June 2021 was prepared.  It was sought in an endeavour to perhaps ameliorate the original report, by informing Mr Newton of matters which I do not consider could have reasonably changed his opinion, such as your acquittal on some counts or what was said to have been the victim's 'consent' in the context of a child complainant.

70It is notable Mr Newton, who is an experienced forensic psychologist, place these queries in the correct context.  The question directed him to confining the offending to a defined time and frequency as in the argument which was put to the court, which I also rejected, in order to moderate risk levels.  Mr Newton commented that in the context of extended sexual offending against an underaged individual, it would be likely that attitudes condoning sexual violence were present at the time of the offending conduct, even though they are not currently present.

71Had you pleaded guilty, the no sections where assessment in RSVP was not possible, may have been possible.  I note that on p6, Mr Newton candidly notes that with the more limited offending scenario proposed in the question, the likelihood of paedophilic arousal is lower.  Given that I reject such offending scenarios, this is of concern.  Further, he notes, Hebephilia arousal and psychosexual issues would remain in any event, which he notes are more amenable however, to treatment and containment. 

72When queried about the exacerbation of risk, posited by recent relationship instability, in a situation posited by the questioner, who requests clarification from him, Mr Newton writes that you had in fact provided a history that differed in a number of aspects, from that asserted in the question, which effected the level of risk.  That is, you had told him of another more unstable relationship.

73He concludes that your ability to benefit from treatment will become manifest with the passage of time, although a denier's program is not currently available in Victoria.  He recited the containment value of the sex offender registration provisions, though the level of containment is not possible to quantify.  I accept that you do not currently condone sexual violence or attitudes which indicates sexual violence, and therefore, specific deterrence, given the age of the offences and subsequent conduct, does have a diminished role.

74Your consequential lack of remorse, however, in relation to your offending, and a failure to demonstrate insight into your behaviour, nevertheless argues against what was said to be in defence submissions, 'little role to play in sentencing of specific deterrence'.  I disagree with this proposition for the reasons I have just outlined.  Lack of remorse is not an aggravating feature, rather, it is a lack of a mitigating factor and in my view, it does reflect that specific deterrence remains relevant.

75In this context, I accept that the many impressive references which were tendered, attest to your character and reputation, commitment to your family, work history, work ethic, esteem in which you are held and dedication to community organisations and causes.  I carefully read and have taken into account a large body of 34 references written in May and June of this year.  I will not list them all, but I read each one and have taken their extensive contents into account.  I note particularly those from your parents and family members, who are distressed and dismayed by your predicament.  Their support is a reinforcing and strong protective factor in your rehabilitation and future prospects.  They also attest to the out of character nature of these offences and your dedication. 

76As you will be imprisoned in relation to Charges 1 and 2 on the indictment, you fall to be sentenced on Charges 4 and 5 as a serious sexual offender pursuant to s6B(2)(a) of Part 2A of the Sentencing Act 1991. I am required to consider the protection of the community as the paramount sentencing consideration in imposing sentence. Despite the fact that the prosecution does not seek a disproportionate sentence in this case, I do not lose sight of this legislative purpose, in noting the maximum already available to the court, for the proper sentencing of your offending.

77I consider community protection as I must, and I am of the view that appropriate sentences will in your case, properly address this principle even as a paramount consideration.  I do not intend to impose a disproportionate sentence in the circumstances.  The sentence will enliven the provision of the Sexual Offender Registration Act 2004, as Charges 1 and 2 are classified as Class 2 Schedule 2 offences and Charges 4 and 5 are Class 1 Schedule 1 offences.  You will be registered as a sexual offender and will be subject to the obligations under the Act for life.

78I am conscious of the need to keep in mind the principle of totality in relation to your sentence.  When sentencing for multiple offences, the court is required to impose a term which is just and appropriate measure of the total criminality involved.  In this context, I sentence you upon the course of conduct in which you engaged and which was composed of the separate charges, not in complete combination, but in various combinations, where the more serious charges, digital penetration, Charge 4, and oral penetration Charge 5, appear the most frequent combination.  Often combined with the most frequent conduct of Charge 1 of masturbation.  There will be a significant level of concurrency, therefore reflecting these combinations and their close and contemporaneous occurrence.

79I give special consideration to the current epidemic restrictions which have also effected the delivery of justice in our state, and which has effected significantly the burden of imprisonment.  COVID-19 has impacted on the delivery of programs and services, the ability to receive visits, the ability to have access to facilities.  It has imposed periods of quarantines and lockdowns and restrictions beyond the normal experience of reclusion.  It has increased also the fear of exposure and infection as is coincidentally currently the case in New South Wales prisons, where risk increases the burden, which accompanies imprisonment and I take this impact into account.

80I was provided with some comparative cases in order to extract guidance, if not current sentencing practice for then, a factor which is difficult to do and which remains only one of the many factors to consider in the instinctive synthesis, particularly given the age of the offending, in which tangent I am mindful of the sentences and maxima which have particular application given the time at which the conduct took place.  Cases I was provided with deal generally with similar offending, but really only one, Lyon v The Queen, involves sentencing of a course of conduct and then, deals only with that question briefly.

81On Charge 1, you are convicted and sentenced to five years imprisonment.  On Charge 2, you are convicted and sentenced to three years imprisonment.  On Charge 4, you are convicted and sentenced to five years imprisonment, which is the base sentence.  On Charge 5, you are convicted and sentenced to five years imprisonment. 

82I order one year and five months on Charge 1 and one year and five months on Charge 5 and eight months on Charge 2 to be served cumulatively on Charge 4.  It is a total effective sentence of eight years and six months.  I order a non-parole period of five years and six months to be served before being eligible for parole.  I declare you have served 141 days by way of pre-sentence detention and I will have that noted in the records of the court.  Mr Hammill, are there any other ancillary orders that are required?

83MR HAMMILL:  Nothing is sought, Your Honour, no.

84HIS HONOUR:  Is the calculation of the pre-sentence detention correct?

85MR HAMMILL:  Yes it is, I discussed that with Ms Roodenburg this morning, Your Honour.

86HIS HONOUR:  Yes, thank you.  Ms Roodenburg, I know we are connected and that Mr CHARLES can hear you if we discontinue this hearing in a formal sense.  Do you wish to speak to him in this way or do you wish not to speak to him?

87MS ROODENBURG:  No, Your Honour, we have an appointment booked in for this afternoon.

88HIS HONOUR:  That is fine.   Yes, we'll adjourn sine die.

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