Director of Public Prosecutions v Clews (a pseudonym)
[2017] VCC 1965
•19 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Alannah CLEWS (a pseudonym) Jasper STENHOUSE (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 19 December 2017 |
| CASE MAY BE CITED AS: | DPP v Clews (a pseudonym) & Anor |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1965 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Loughnan | Office of Public Prosecutions |
| For Accused Clews | Mr J. Westmore | Doogue, O'Brien George |
| For Accused Stenhouse | Mr G. Thomas | Greg Thomas Lawyers |
HIS HONOUR:
1Jasper Stenhouse[1] and Alannah Clews[2], you have pleaded guilty to two sets of offences, one involving an adult victim and the other set of offences involving your own very young son. I will deal first with the crimes involving the adult victim.
[1] A pseudonym name
[2] A pseudonym name
2You two accused had met when you, Alannah Clews, were hitchhiking and you, Jasper Stenhouse, were driving and picked Ms Clews up some time around 2009. At that time you, Jasper Stenhouse, were married and had been so for many years. You had been a working man but had suffered a debilitating respiratory illness as a consequence of your work in the powder coating industry.
3In essence, you commenced an affair with Ms Clews. She is ten years younger than you are. While the precise timing remains a bit unclear it seems that you, Ms Clews, fell pregnant and you, Mr Stenhouse, left your then wife. You two were later married.
4Your son was born on 8 August 2011. You, Alannah Clews, have a past history of drug use, offending, of gaol sentences and mental health problems. I will later detail your very difficult and traumatic upbringing which no doubt led to your addiction to drugs and consequent offending.
5The point to be understood at this stage is that to fund your drug addiction you had been a sex worker in the past and continued from time to time while in a relationship with Mr Stenhouse. As a consequence of drug use and lifestyle the Department of Health and Human Services had been involved in your life in relation to other children that you have had. They became, that is DHHS, became involved in respect of your son from the time of his birth. Thus you, Jasper Stenhouse, have had custody and care of your son but there was DHHS involvement throughout.
6I do not need to elaborate on the circumstances of the DHHS involvement and the Children's Court orders save to say that from time to time your wife was not permitted to live with you and your son. However, by mid-2015 you were both living together with your son in a house in Boronia. You, Ms Clews, continued to advertise as a sex worker. It is clear that you, Jasper Stenhouse, were involved in that it was your mobile phone that was the contact and there were contacts made with you.
7The adult victim of the first set of offences first contacted that mobile phone in mid-2015. Drugs were purchased by him but no charges arise from that conduct. It seems there was no contact with him for about eight months as it seems the victim ceased his drug use.
8On 10 March 2016 the victim recommenced contact by text message. He had lapsed in respect of drug use. Over the next two days there were many text messages, including offers by you to sell drugs to the victim. In addition, there were discussions about sex for payment. More disturbingly, the adult victim sent many abhorrent text messages about his purported sexual activities with children. He also encouraged you, Ms Clews, to leave your partner, Mr Stenhouse. He sent text messages regarding life insurance and getting rid of Mr Stenhouse for insurance money. That at least was the implication. You, Mr Stenhouse, were privy to these text messages and it seems responded to some of them as if you were your wife, that is you impersonated her.
9On 11 March 2016 the adult victim seemed to come to his senses and sent panic-ridden text messages that nothing that he had sent earlier was true, that he did not want drugs any more and that his messages and phone number should be deleted. You two replied to the adult victim, accusing him of being a child molester, rapist and drug user. You sent screenshots of messages to make him aware that you had kept the disturbing texts that he had sent. In the early hours of 12 March 2016 a message was sent, threatening to tell his parents, his employer and the police unless he paid $4000. The victim immediately cancelled his phone service and there was no communication thereafter for two weeks.
10On the evening of 21 March 2016 both of you went to the vicinity of the victim's house. You, Alannah Clews, went to his front door. You were agitated, telling him that he owed you money and that he must pay. He panicked and took down your telephone number and later texted you, asking what you wanted. The response came from both of you and it was a demand for $1800 and that if it was not paid then, "her bloke", being you, Mr Stenhouse, "was adamant that he was going to tell the victim's parents and the police".
11Eventually a lesser sum of $1200 was negotiated. The victim had to persuade his parents to help him out and the money was transferred to your bank account, Ms Clews, on 30 March 2016. The text then sent to the victim was that the matter was finished. However, the next day the victim received a further demand that you wanted more money to stay quiet. Ultimately $1300 was transferred to your bank account, Mr Stenhouse. Again you reassured the victim that it was all over in a responding text.
12Nearly three weeks passed and then you sent a text threatening the victim that you would go to the police. You demanded $2000 and escalated his fear by sending photographs of his house and making chilling comments about his parents. The victim went to the police. A pretext call was made on 22 April 2016. This call was made by you, Mr Stenhouse. Again demands for money were made with reference to his parents. The next day a text message was received by the victim with further demands. It is clear on all the materials and the concession by your counsel, Mr Stenhouse, that you were the main author and played a more significant role in these later demands than that of you,
Ms Clews.13On 26 April 2016 police executed a search warrant on your premises. Among items seized was a partially completed letter addressed to the victim's parents. In your record of interview with the police, Mr Stenhouse, you made significant admissions and said in essence that you were the more responsible for the blackmail than your partner. You expressed remorse. Also seized were three phones used by both of you during the course of the blackmail. I will return to say more about what was found on the phones shortly. The conduct that I have outlined led to four separate charges of blackmail, two of which secured money and two of which did not. Also there was one charge of trafficking a drug of dependence, being the offer of drugs for sale. No drugs were ever passed over. Both of you face these charges and both of you pleaded guilty early to these offences.
14Blackmail is always a serious crime. The maximum term of 15 years' imprisonment reveals how seriously the parliament considers this crime. In this case you caused fear in the victim for himself and his elderly parents. His own conduct was very concerning and you sought to exploit that. The use of the photographs of his home and the comments about his parents were reprehensible. I do note that you used your own bank accounts and phones, thus you made detection and prosecution easier. It was not, therefore, an example of a sophisticated blackmail operation and the moneys that were sought and passed over were not large at all. Thus yours is not the most serious example of the crime of blackmail. However, I consider the gravity of the blackmails escalated, albeit that on the last two occasions no money was transferred. The prosecution very fairly conceded that this was not the most serious example of blackmail.
15There are mitigating matters that apply to all the offending and I will defer comments about that until after dealing with the other crimes, save that I will expressly say now in respect of those offences that in both your cases, the very early pleas of guilty and in your case, Mr Stenhouse, you taking the greater responsibility, and your expressions of remorse for those crimes, are mitigatory. The pleas of guilty will mean that I will impose a lesser sentence than otherwise would have been the case. I also make it clear now that denunciation of this frightening crime and deterrence, especially to others, are the principal sentencing purposes. I will return to how those purposes are properly met by the appropriate punishment when dealing with the totality of the offending.
16I now turn to the very serious offending that involved the young victim, your son. As mentioned earlier, when the police seized property on 26 April 2016 what was gathered up included three mobile phones. Examination of the phones revealed disturbing videos and photographs taken of sexual activity involving both of you and your four year old son. I have watched the video and seen the still photographs that were taken. The conduct depicted is abhorrent.
17In short, both of you accused treated your four year old son as a mere object, a sex toy to be used for perverse gratification. What was depicted in the video is accurately described in the agreed facts that were tendered by the prosecutor and read out on the plea. In particular, from paragraphs 44 to 51. I will incorporate those paragraphs in my written reasons. There is no particular need to read them aloud now, and good reason not to subject everyone in the court to a description of the degrading and abhorrent images. What needs to be said so as to allow my reasons to be comprehended as they move forward is that the two of you had the four year old boy between your legs, Ms Clews, with him penetrating your vagina. At this point you, Mr Stenhouse, in addition to filming this depravity, were pushing on the child's bottom to aid the penetration. You, Ms Clews, also forcefully and rapidly pushed the child's buttocks into your genitals. At another point you, Ms Clews, straddled the child so as to again have him penetrate your vagina. All of his amounted to one representative count of incest.
18Sadly, this court deals with offences against children routinely. However, not often are the acts of incest filmed. I have endeavoured, and I believe successfully so, to ensure that I have not been overwhelmed by reason of having the visual images available as opposed to the usual narrative of a complainant, which is understandably more general rather than a frame by frame description of an act of incest,
19In addition to the video showing the conduct that amounts to incest it also shows the depraved conduct of you, Mr Stenhouse, having you, Ms Clews, perform oral sex on you, Mr Stenhouse, while your child was between her legs. This conduct is the indecent act in the presence of a child, a separate offence, and an abhorrent one.
20A single incest charge is what is shown on both the one minute, 25 second video and the nine second video. On any analysis this is very serious offending. What makes it so is firstly the very young age of the victim. He was a four year old child. It only needs to be said the decent members of our community to be utterly repulsed that such a young and vulnerable child was used as a sex object.
21Secondly, this offending involved a profound breach of trust. Your child was entitled to look to both of you for protection and care. You, Mr Stenhouse, were seen by State authorities who had concerns for the welfare of the child, as the parent who could be trusted to do the best for the child. That you did the opposite is shameful. The community expects and trusts that parents will care properly for their children. It is a fundamental value in our community that children will be nurtured as they grow. Your sexual abuse of your child is an attack on our society's values. You two exposed your child to adult sexuality and the innocence of his childhood has no doubt been gravely affected.
22The courts and the community have, in modern times, learnt time and again of the deep and enduring adverse impact of sexual abuse on a child. The full impact often manifests only after many years have passed. What harm has actually been caused to your son is hard to discern at this point but the presumption of harm from sexual offending of this kind is a matter that I must consider. The physical acts displayed on the video, especially that of you, Ms Clews, forcefully pushing the child's buttock so that sexual penetration was achieved, cannot be overlooked. As I said, the shorter video shows you,
Ms Clews, physically on top of the child. You, Mr Stenhouse, pushed the child's buttocks at one point. The sounds from the video are disturbing and the child is plainly confused and upset.23All too often our appellate courts have had to speak of the dreadful nature of sexual offending against children. I can quote at length from many cases over the decades but the reoccurring principle is this. The blight or scourge of sexual abuse of vulnerable children degrades our community and what is required of the courts is that a firm, unambiguous response is made with the imposition of condign punishment that sees perpetrators imprisoned for years. I will refer later to the sentencing purposes that are engaged in this matter.
24You, Mr Samara, filmed this sordid episode, kept it on your phone and, it seems, transferred it to another phone. By this you produced and possessed child pornography. In addition, when the phones were examined there were three other pornographic still photographs of your son. Relative to the usual vast quantities of internet sourced child pornography, these crimes, while appalling, are to be seen as down the scale in gravity. In that regard the prosecution conceded as much.
25While both your counsel conceded the gravity of the particular crime of incest, what was also pointed out was that the offending was far more opportunistic than many other examples of incest or child abuse. It seems the child came into your room while you two were engaging in some sexual activity and the child wanted in effect to play with his parents. Both of you exploited that situation in a wicked way. However, as was pointed out, this was a one off incident contrasting to most other examples which involve long sexual abuse by a predator adult against young family members quite often moving from one level of sexual offending to another, escalating in depravity and frequency. Those matters raised by your counsel are valid and I have factored them into the sentencing equation.
26I will now deal with matters that relate to each of you separately, beginning with you, Mr Stenhouse. When you were arrested for these sexual offences at first you downplayed things until you were shown the video by the police. Thereafter you were contrite and acknowledged your wrongdoing. This is a matter in your favour. You then pleaded guilty at the earliest opportunity, a mitigatory matter that on its own would lead to a lower sentence. However, in your case when it became clear that your wife's original position had changed or had clarified and she was pleading not guilty, you agreed when asked by the police to provide a sworn statement setting out your own and her involvement in the sexual offences. When your plea was called on, at which time your co-accused was still indicating a plea of not guilty to the sexual offences, you then gave evidence and, in particular, gave an undertaking that you would give evidence if called upon in a trial of your wife. In giving the evidence before me you elaborated on what was set out in your statement. That evidence went to what appeared to be a significant issue in the trial, being the element of sexual penetration.
27The undertaking that you gave entitled you to a further and substantial reduction in your sentence. There are no fixed figures but what I take into account is the need to promote the policy of an accused cooperating with authorities and implicating a co-accused. So it is the fact of you giving evidence that must be acknowledged. That remains the case notwithstanding that in the end, after your evidence on the plea and after further consideration by your co-accused, she in fact pleaded guilty to the sexual offences and there was no need for a trial.
28I also take into account, as you made clear on your evidence, that prison is a more onerous and frightening place for you now because you were someone who has assisted the police. It is not said that you were in any particular danger because of any influence that your co-accused may have, but nonetheless it is a further factor in the overall circumstances of your cooperation and willingness to give evidence. In respect to this mitigatory matter of your cooperation and willingness to give evidence, I have applied the well-known principles distilled from the cases dating back to Perrier, Soo, Golding, Duncan, Cuthbertson, and in more modern times, Nguyen and Phommalysack.
29I need to add that the evidence that you gave went further than the undertaking and the elaboration on the facts of the case. It went further in ways that made it clear to me that you understand the harm or potential harm that you have done to your child. You said that you are devastated and at a loss that you have ended up where you are. You left your first wife because of your desire to have a child. You cared for the child and looked forward to the years as he grew up. All this has gone and you are contrite and, in my view, genuinely remorseful for what you did.
30I have read the psychologist's report prepared by Ms Cidoni and your counsel's outline of your personal circumstances. I have noticed your many years of good work before your work caused illness rendered you unable to continue. You were of good character until your one earlier court appearance, that is for perjury and attempting to defraud WorkCover in 2002. That was your only black mark until this offending. Those matters in 2002 were dealt with by the very experienced County Court judge, Judge Kelly, who imposed a punishment of ten months' imprisonment to be wholly suspended.
31You were in a long marriage but on taking up with your co-accused things have been far less stable. Your physical health is not at all robust. Your work in the powder coating industry caused you to develop pulmonary sarcoidosis in 1998. This inflammatory disease affects your lungs. In 2004 you were diagnosed with left bundle branch block cardiomyopathy. This is a serious illness requiring a range of medications. While you are and will receive appropriate medication in prison your medical problems leave you feeling vulnerable and worried while incarcerated. You have pain in your chest, sweating and palpitations.
32You reported to Ms Cidoni suicidal thoughts. She felt you had a number of symptoms consistent with situational distress, which is understandable. Other tests revealed a borderline low intelligence. As to your risk of sexual offending, given the nature of the circumstances of your crime it is understandable that using the sexual violence risk inventory you were assessed as a moderate risk. However, I accept that this was aberrant one off offending and that your willingness to participate in appropriate sex offender courses reduces your risk on release. You will need help on release and it is hoped by you that your parents will be around and can assist, but I note that they are elderly.
33So that it is clear, I consider your health problems make prison for you more burdensome and I will factor that into the considerations with respect to your sentence.
34As noted, you offered to plead guilty at the earliest opportunity. That is at a committal mention. You have maintained that attitude ever since. However, as a consequence of your wife indicating she would plead not guilty, and then further, that your plea and her trial were not reached when first before this court, as a consequence of that your case has been delayed. In the meantime you agreed to assist, as I have said, thereby the risks to you in prison have increased, thus the delay in this case caused you not just the ordinary stress but added burdens. Again, I will take this into account in mitigation.
35Your prospects of rehabilitation are enhanced by your insight into your offending and your remorse. However, the need to end your relationship with the co-accused is vitally important if you are to permanently reform. As I have endeavoured to make clear, all the offences were serious, calling for real weight to be given to denunciation and to deterrence. Because of the operation of the serious offender provisions of the Sentencing Act you will become a serious sexual offender in respect of the relevant charge after sentences of imprisonment are imposed on two other relevant charges.
36That means, by operation of the Sentencing Act, protection of the community is to be the primary sentencing purpose. Also I must cumulate the sentences unless I determine otherwise. In the end the principle of totality looms large in this case. I will apply the provisions of s.6E of the Sentencing Act but still mindful of the principle of totality.
37I wish to make clear that I have ensured that the mitigatory matters that have been mentioned are not just given lip service because the sexual offending here was so abhorrent. Notwithstanding the mitigatory matters, your counsel conceded that the only appropriate sentence is one of imprisonment. The urge to lower minimum parole period in this case, he said that was warranted. There is merit, in my view, in that approach but I am also mindful, nonetheless, and I must impose a minimum term which I consider is the minimum amount of incarceration that justice requires. I make it clear I have considered the orders for cumulation and concurrency and I have revisited the total sentence for the blackmail offences involving the adult victim, the sexual offences involving the victim, together with the other minor drug offences, being the offer to sell drugs to the adult victim and some drugs that were found at the house. I will return back to your sentence after I have dealt with matters personal to Ms Clews.
38I now turn to matters relating to you, Ms Clews. You are now 43 years old. Your counsel summarised your personal circumstances in this way: "Overwhelmingly her circumstances speak of a woman who has encountered disadvantage, degradation and exploitation at every state of her life". Your counsel went on to highlight a number of matters, all relevant to assessment of when you are and how your unfortunate life has unfolded. He pointed out that you were sexually abused by your father from a very young age, which has left an enduring, adverse impact upon your development. This was not the only time that you were sexually abused. There were other episodes at the hands of relatives and partners throughout your late teens and onwards through your adult life.
39In early childhood you were diagnosed with ADHD and as a consequence education was very difficult. Because of your chaotic family life you were removed from the family home by State authorities, DHS, around the age of 13 and thereafter you lived in unsatisfactory foster homes and too often on the streets whilst still a child. Your lifelong difficulty with drugs commenced at this early time.
40You have had frank mental health problems that have been treated in psychiatric facilities, the first of which was when you were 15, after displaying episodes of self-harm. You have, in other circumstances, attempted suicide, and again been admitted to a psychiatric facility. One occasion occurred after you were raped by a brother.
41You first pregnancy was around the age of 16. However, following violent assaults by the father you lost the child. You married early, although this marriage ended violently when your husband was shot by police during a violent domestic dispute when he was armed with a knife. You were present throughout this ordeal.
42A later partner was a significant drug dealer who fed your addiction. Your first child was born to you when you were 18. You have had four children in total including the victim in this matter. They were all to different fathers. As mentioned, the Department of Health and Human Services has been involved in the lives of all your children given your problems with drugs, your mental health difficulties, your exposure to domestic violence, your incarceration and the commission of crimes by you.
43In recent times your physical health has deteriorated. You presently have a serious lung condition and other problems have been revealed by scans of your brain. You have further scans planned. These physical problems cause you significant stress and are an extra burden upon you while you are incarcerated.
44You have had an almost lifelong addiction to heroin. In addition to heroin in the period of time leading up to this offending you were also using methylamphetamines, cannabis, alcohol and taking a significant amount of Valium. In respect of the use of benzodiazepines Mr Jackson, a neuropsychologist, in his report of 5 May 2017 opined that it was most likely you had a mild acquired brain injury due to long term benzodiazepine use. Of course your drug addiction and its effect upon you also interact with your longstanding psychiatric history which, as I have outlined, has its origins in your early childhood.
45Mr Jackson assessed your intelligence as average but your memory capacity was very much lower, which aligned with his view that your abuse of benzodiazepines and other drugs has left you with deficits. There is no doubt that you were abusing an array of drugs at the time of your offending. Your counsel submitted that on the evidence, including that of the video, it could be concluded that you were drug affected at the time of the sexual offences. After reviewing all the material I am persuaded of that proposition.
46The next step is what impact, if any, does that fact of drug impairment have on the sentence? Your counsel submitted that it operated to reduce your moral culpability. That is you made bad judgments with a brain constantly addled by drugs. Again, after anxious consideration I am now persuaded that your drug usage on the day does operate in this instance to lower your moral culpability for this very grave sexual offending. It was opportunistic offending. There was no indication that you would act in this way while affected by drugs. However, in my assessment the mitigatory effect is slight and your moral culpability thus remains reasonably high.
47Your counsel also urged that your undoubted life of disadvantage has operated so as to lower your moral culpability. His argument was in accord with the High Court decision of Bugmy. I have factored that matter into the sentencing synthesis. I add that your life of disadvantage also operates to elicit a degree of compassion and thus mercy in the sentencing process.
48The matter argued by your counsel was that not only was it the case that you had played the lesser role in blackmail, but his proposition was that you also played a lesser role in terms of the sexual offending. As mentioned earlier,
Mr Stenhouse took the lead in the blackmailing and he admitted as much. In respect of the sexual offending the position is far less clear. Your counsel,
Ms Clews, argued that you were dominated and manipulated in the relationship. Mr Stenhouse gave evidence, albeit untested by your counsel, as to how he was fearful of your outbursts and had done all he could to help you with your many problems because he loved you. In the end resolving to a fine degree the issue of roles in the sexual offending is not really possible, and in the end not that necessary. The key is you both did all that was necessary to be done to commit the abhorrent crime of incest and an indecent act in the presence of a child.49Mr Stenhouse, you filmed, as I have said, the sordid event and face charges for that, but you, Ms Clews, were physically involved in the acts of incest. It is the overall criminality that has to be punished.
50Ms Clews, your counsel submitted that given your limited memory of the events, the timing therefore of your plea of guilty was more complex than may seem the case. What also was added in was the key fact that you could not view the video in prison but once you did see it at court you then pleaded guilty quickly, and that was an important fact in the assessment of your plea of guilty. In my view, in the end it is an important matter that you did not press the sexual offending to trial. The jury were relieved of viewing the disturbing video. Your immediate indication of a plea of guilty once you saw the video, taken with things that you said to the professionals who assessed you, allow me to see that you were concerned for the effect on your child. I will take into account your plea of guilty and your expressions as they were of remorse in respect of those crimes. You do not get the full benefit of an early plea of guilty but the late timing of your plea of guilty has not operated in your case to diminish the mitigatory impact by too much.
51You have a concerning and lengthy criminal history which I will not detail. It seems to me what flows from that is that I can be no more than very guarded as to your prospects of rehabilitation. The prosecution submitted that the array of crimes committed by both of you inevitably led to the need for significant terms of imprisonment. The prosecution acknowledge the differences in personal circumstances both for and against each of you and the important difference of the cooperation of you, Mr Stenhouse. In the end the crimes, especially against the young victim, were grave and degrading, requiring punishment that denounced and deterred.
52Your different backgrounds, criminal histories, prospects for reform, timing of your separate pleas of guilty, and the fact that you, Mr Stenhouse, cooperated with the prosecution, all have to be weighed up with some aspects operating in a more mitigatory way for one or other of you. What remains highly relevant to both of you in respect of all offences is the need for denunciation and just punishment. This important sentencing purpose must be met in practical terms, not just my words of condemnation but by stern punishment in terms of years of imprisonment.
53I must also give substantial weight to deterrence, especially to others who may be minded to exploit and sexually abuse children. Our community demands that sentences operate as real deterrents. You, Ms Clews, are not to be repunished for your past crimes and I note, not surprisingly, that none of them are for sexual offending. However, there must be an aspect of deterrence to you. You are not to be sentenced according, that is you, Ms Clews, are not to be sentenced according to the provisions of the serious sexual offender, as
Mr Stenhouse must be. However, in all the circumstances I do not consider either of you are at risk of like sexual offending into the future. This was one off and a gross exploitation of the circumstances that presented and not some deep predatory behaviour.54Though your sentence, Ms Clews, is not complicated by reason of the serious sexual offender provisions I will have to order some cumulation to properly reflect all the crimes you committed but I will ensure that the totality of your sentence meets the crimes that you have pleaded guilty to, no more and no less. Likewise applies to you, Mr Stenhouse. I will fix a non-parole period as best I can to facilitate or establish conditions to facilitate your rehabilitation, but whether and when you are granted parole is for others, not me. You, Ms Clews, will need support. You will suffer the likely long separation from your child. You will have to maintain abstinence from drugs, hard as that will be given your long years of use. All the experts emphasise your prospects generally and especially the stability of your mental health depends on abstinence from all drugs.
55In recent times our appellate courts have emphasised the importance of each sentence meeting the individual circumstances of the offence and the offender. Also there have been statements as to the importance of meeting the crime of incest with sentences that do properly acknowledge the maximum term of
25 years, the dreadful impact on victims and on our society. I cannot ignore the recent guidance by our appellate courts and I have considered the cases that were mentioned during the plea, including the matter of DPC where the victim of the incest was also about four years old. No other case sets the figures or the lengths of the imprisonment to be imposed in any other case but I have been guided by what the courts have said, both High Court and Court of Appeal in Dalgliesh as to current sentencing practices and the need for incest to be properly punished.56I will deal with you first, Mr Stenhouse:
Charge 1, of production of child pornography, you are sentenced to two months' imprisonment;
Charge 2, blackmail, you are sentenced to 12 months' imprisonment;
Charge 3, blackmail, 14 months' imprisonment;
Charge 4, blackmail, 18 months' imprisonment;
Charge 5, blackmail, 18 months' imprisonment;
Charge 6, trafficking in a drug of dependence, you are sentenced to six months' imprisonment;
Charge 7, the incest, you are sentenced to four years and six months' imprisonment;'
on Charge 8, being the indecent act in the presence of a child, you are sentenced to 18 months' imprisonment;
Charge 9, being the child pornography matter, you are sentenced to nine months' imprisonment;
Charge 10, being possession of child pornography, you are sentenced to one month imprisonment;
and on Charge 12, being the possession of a drug of dependence, you are convicted and fined $100.
57I order that three months of Charge 2, four months of Charge 3, five months of Charge 4, five months of Charge 5, two months of Charge 6, nine months of Charge 8 and two months of Charge 9 be cumulative upon each other and upon the sentence that I have imposed on the charge of incest. This gives a total effective sentence of seven years and I fix a minimum non-parole period of four years before you are eligible for parole. Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of
11 years with a minimum term of eight years. That also takes into account, of course, the cooperation that you provided, as best I can because that would have been absent had you pleaded not guilty.58I just need the pre-sentence detention.
59MR THOMAS: 601 days.
60HIS HONOUR: You have already served 601 days in custody. This figure having been I declare that 601 days is part of the sentence that I have just imposed. I will ensure that this declaration was entered into the records of the court so that the prison authorities are left in no doubt that you have already served 601 days of the sentence that I have just imposed.
61Ms Clews:
in respect of Charge 1, blackmail, you are sentenced to 12 months' imprisonment;
Charge 2, the blackmail, 12 months' imprisonment;
Charge 3, the blackmail, ten months' imprisonment;
Charge 4, the blackmail, ten months' imprisonment;
Charge 5, the trafficking in the drug of dependence, you are sentenced to six months' imprisonment;
Charge 6, the incest, you are sentenced to six years' imprisonment;
Charge 7, the indecent act with a child under the age of 16, you are sentenced to two years' imprisonment;
in respect of Charge 8, the possession of a drug of dependence, you are convicted and fined $100 for Charge 8;
and for Charge 9, convicted and fined $100.
62I order that four months of Charge 1, four months of Charge 2, two months of Charge 3, two months of Charge 4, two months of Charge 5 and ten months of Charge 7 be cumulative upon each other and upon the sentence of six years for the incest. This gives a total sentence of eight years and I fix a minimum non-parole period of six years.
63Had you pleaded not guilty to these matters and been found guilty of them you likewise would have received a sentence of 11 years with a minimum of eight.
64MR WESTMORE: Yes.
65HIS HONOUR: You have spent 601 days in custody. That figure having been reckoned I declare that the 601 days that you have already spent in prison are part of the sentence that I have just imposed. I will ensure that that declaration's entered into the records of the court, thus the prison authorities will be left in no doubt that you have served 601 days of the sentence I have just imposed.
66Is there any other order?
67MS LOUGHNAN: Yes, Your Honour. The serious sex offender and the Sex Offenders Registration Act.
68HIS HONOUR: Thank you. What is the sex offenders registration for both?
69MS LOUGHNAN: In relation to Mr Stenhouse it is life. In relation to Ms Clews it is 15 years.
70HIS HONOUR: Thank you. The provisions of the Sex Offenders Registration Act require that you, Mr Stenhouse, must register on the sex offenders register and remain on that register for life. There is no discretion about it. In your case, Ms Clews, you must be registered on the sex offenders register for 15 years and remain on the sex offenders register for 15 years. There is no discretion I have about that either.
71You will get a document provided to each of you. That is a document which sets out the very serious consequences if you do not register and comply with the registration. That will be explained to you but I would expect explained in detail as you are about to leave the prison in some years' time, but be under no illusion, the requirements of registration and remaining registered and complying with all that is required of you is onerous and there are serious consequences if you do not meet all that is required of you under that Act. So I give you a document that I sign that says I have given you the document. You get the bundle of document and you sign another one that says that you have been given the document. That will occur shortly.
72In respect of the serious sexual offender matters just remind me, I am sorry,
Mr Loughnan, that I do not wish to create a problem for the record but as I understand it, the first charge for Mr Stenhouse, which he received in prison, was Charge 2. The next offence is the incest. The third being the indecent act with a child under the age of 16.73MS LOUGHNAN: That is right, Your Honour.
74HIS HONOUR: In respect of that matter you are declared a serious sexual offender, and that applies to the next charge of possession of child pornography.
75MS LOUGHNAN: That is right, Your Honour.
76HIS HONOUR: Thank you. I will ensure that the declaration that you are a serious sexual offender is entered into the records of the court. Are there any other orders?
77MS LOUGHNAN: No, Your Honour. I believe there were forfeiture orders - or disposal orders handed up on the plea.
78HIS HONOUR: Was there?
79MS LOUGHNAN: I am afraid I was not here on the day, Your Honour.
80HIS HONOUR: No, you were not.
81MS LOUGHNAN: But they were supposed to be and I do not have them with me.
82HIS HONOUR: That is all right.
83MS LOUGHNAN: There were two disposal orders.
84HIS HONOUR: What for? For what?
85MS LOUGHNAN: For - no, I do not have the brief with me but they are various videos.
86HIS HONOUR: The phones, I suppose, and drugs and various things.
87MS LOUGHNAN: There was one order in relation to each of the two matters, Your Honour. I can have those - - -
88HIS HONOUR: All right. You do not seem to have them? So we will provide you with some time to forward that to my staff. They will be signed and delivered back to you and to the accused's lawyers in due course.
89MS LOUGHNAN: Thank you, Your Honour.
90HIS HONOUR: Is that satisfactory to both of you?
91COUNSEL: Yes, Your Honour.
92HIS HONOUR: You do not stand in the way of these forfeitures, do you?
93COUNSEL: No, Your Honour.
94HIS HONOUR: I mean you could put up an argument but there it is. Is there anything further? Did the maths add up by the way, in the time that you
have - - -?95COUNSEL: I have not had time to check that.
96HIS HONOUR: Good heavens. I do not want the accused to leave with some misapprehension just because my mathematics is not good enough.
97MR WESTMORE: It adds up for me.
98HIS HONOUR: Thank you, Mr Westmore.
99MS THOMAS: Yes, Your Honour.
100HIS HONOUR: Thank you, Mr Thomas. There is a document here for
Mr Stenhouse - or were they both (indistinct). Mr Thomas, if you just take that down. He signs a particular document there.101MS THOMAS: Yes, Your Honour.
102HIS HONOUR: Likewise, Mr Westmore, there is a document here.
103MS LOUGHNAN: Your Honour, I apologise.
104HIS HONOUR: Ms Loughnan, we will just allow for - - -
105MS LOUGHNAN: Sorry.
106HIS HONOUR: - - - counsel to deal with something. Apparently the transcript is not enough to satisfy the legislation that I have given them documents. Just bear with me. I have received a form signed, acknowledgment pursuant to sex offenders registration regulations by Ms Clews. That will be forwarded to the Chief Commissioner. Likewise Mr Stenhouse. Yes, Ms Loughnan.
107MS LOUGHNAN: Your Honour, I apologise.
108HIS HONOUR: Not at all.
109MS LOUGHNAN: There is a of confusion in relation to a forensic sample order.
110HIS HONOUR: sure.
111MS LOUGHNAN: As I understand it, Ms Clews is already on the database.
112HIS HONOUR: Sure.
113MS LOUGHNAN: But my friend thought that he had consented on an earlier plea. I am sorry, I just was not here but - - -
114HIS HONOUR: That is all right. Do we have such a document provided to us?
115ASSOCIATE: Nothing was handed up, Your Honour.
116HIS HONOUR: If you want a 464ZF in respect to Mr Stenhouse then forward it to us. You do not stand in the way?
117MS THOMAS: That is not opposed, Your Honour, no.
118HIS HONOUR: I indicate to you, Mr Stenhouse, the document I will be provided and I will sign, it is that you will be asked to provide a sample, a forensic sample, a scraping from your mouth, DNA will be extracted and kept on a database. I have no hesitation in making that order in this case because of the seriousness of the offending, because you have a prior matter and because it is in the interests of justice that I make that order. You do not stand in the way of it. I note that as well. So when the authorities come to take a scraping from your mouth please understand that if you do not cooperate at that time they are authorised to use reasonable force to get the sample. The way forward is to cooperate. Thank you.
119MS LOUGHNAN: Thank you, Your Honour. I will forward those orders this afternoon.
120HIS HONOUR: Thank you. Anything further required?
121MS LOUGHNAN: I hope not.
122HIS HONOUR: I thank counsel and Mr Maguire for the very significant help that was provided in this matter. I have referred to the names of Stenhouse and Clews. They will be anonymised in the sentencing of ultimate reasons that will ultimately be provided so as to ensure complete confidentiality ultimately for the child victim and to a lesser degree, the adult victim. Their names were not mentioned at all at court. So that process will take a little bit of time before the written reasons are available given what else we have to do at this time of the year. So hopefully that will be with you fairly shortly.
123COUNSEL: As Your Honour pleases.
124HIS HONOUR: Mr Stenhouse and Ms Clews can be removed. Thank you.
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