Director of Public Prosecutions v Cole (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

EDWARD COLE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 to 11 April 2025 (Trial); 11 April (Verdict); 29 April (Plea)
DATE OF SENTENCE:	2 May 2025
CASE MAY BE CITED AS:	DPP v Cole (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 577

REASONS FOR SENTENCE
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Catchwords: 3 charges - Verdicts after trial - One charge of sexual penetration of a child (incest); 9 or 10 year old daughter - two charges of sexual assault of a child aged under 16 - Same incident - 38 years of age at time of sentence - No relevant criminal history - Serious Offender regime - Sex Offender Registration Act - Standard sentence scheme
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APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Mr D. Brustman KC (plea)

Ms L. Altoon (sentence)

Office of Public Prosecutions

For the Accused

Mr D. McGlone with

Ms I. Siriwardana

Victoria Legal Aid

HIS HONOUR:

1Edward Cole,[1] following a very brief trial, on 11 April of this year, you were found guilty by a jury of three sexual offences committed upon your child, Sofia.[2] There was one charge of sexual penetration, hence a charge of incest, and two charges of sexual assault of that same child who was under the age of 16.
[1] A pseudonym.
[2] A pseudonym.
2These three offences occurred on the one occasion on an unspecified date in 2019.
3I remanded you into custody after taking that verdict and you have remained there since. There was a single day of pre-sentence detention which had arisen earlier when you had failed to appear on bail at a procedural hearing, I was told a committal mention in the Magistrates Court. That summary offence of failing to appear in accordance with your bail was the subject of a guilty plea before me as it was a related summary matter, and I must sentence you in relation to that matter as well. I will scarcely mention it again as it is not a matter of any seriousness at all.
4You are now 38 years of age and you have no relevant prior convictions. There is a single appearance in 2016 relating to some driving offences and you then breached the community corrections order that was imposed, which led on to a second court appearance in 2018. That history has no relevance at all to my task. I was also told by the prosecutor about a subsequent matter merely to correct a submission that had been made on the plea by your counsel that you had not breached an intervention order which had been in existence - in fact you had. That subsequent appearance assumes no importance at all in my task either.
5The maximum penalties are 25 years' imprisonment for the incest charge and 10 years' imprisonment for the child sexual assault charges. The Bail Act matter has a two-year maximum prison term.
6Incest is what is described in the Sentencing Act as a Category 1 offence where a custodial sentence is therefore required. Nothing hangs on that at all in this case. Your counsel accepted that a prison term is completely unavoidable here. That concession was undoubtedly correct, and I will not mention that provision again.
7The standard sentence scheme also applies to my sentencing task which made quite curious your counsel Mr McGlone’s decision to refer me to a number of so-called comparable cases where the sentences imposed were not subject to the standard sentence scheme at all. I will come back to that a little bit later in my reasons.
8Let me turn then to the sentencing facts in this case.
Facts

9On a guilty plea these days, there is usually a written statement as to the facts presented to the court, most often an agreed one. That of course never exists in a trial setting where the trial is conducted and witnesses are called, as happened here.
10On some occasions following a trial, it is not necessarily that easy to determine the factual basis of sentencing. Of course, the guilty verdict will always signify that the elements of the offence have been established beyond reasonable doubt but that will not necessarily convey an acceptance of some of the factual allegations that have been placed before the jury.
11A judge is always required to interpret the verdict and to sentence consistently with the jury verdict.
12Having said all that, the factual basis of sentencing is not at all difficult to determine in this case. No suggestion to the contrary was even vaguely floated by Mr McGlone or Ms Siriwardana.
13Given the verdicts, the jury has plainly accepted the complainant as a witness of truth in the critical areas. Her description of the events on the night has been accepted by the jury. The jury has accepted the evidence of your daughter beyond reasonable doubt as to the happening of these three acts. They were satisfied beyond reasonable doubt that you touched your daughter sexually in relation to Charges 2 and 3 in the way alleged and that you penetrated her vagina with your penis in relation to Charge 1, the charge of incest.
14The jury verdicts were of course based on the assessment that they, the jury, made of all of the evidence placed before them in the course of the short trial.
15The evidence as to what took place within that room was led from your direct victim, your daughter Sofia Cole.
16You did not give evidence at trial, as was your right.
17When you had been interviewed by the police back in February 2023 you had denied committing any of these acts. Your interview account has been rejected beyond reasonable doubt and your daughter's account, has been accepted beyond reasonable doubt - of that there can be no doubt.
18She had made the video-audio recorded statement (VARE) back in October 2021, on the same day that she had made some disclosures to teachers at her school. She swore to the truth of that account when she was called as a witness at the special hearing which took place before me on 22 November of last year. Her account was challenged in cross-examination by Mr Goodenough who was then acting for you together with Ms Siriwardana. That first trial ended with a jury disagreement - they were unable to reach a verdict and so I discharged that jury without verdict on 4 December of last year. The retrial started on 7 April of this year and was done predominately on the tapes, with the verdict returned on 11 April.
19Again, you elected not to give evidence, as was your right.
20As I said then, plainly the jury was satisfied of her account beyond reasonable doubt. They accepted her as a reliable and truthful witness when she gave her account of what you had done to her in the master bedroom of the family home on the night in question.
21There was some evidence led of the complaints that she had made to some of her young school friends, and to her teachers and as to her emotional state at the time of speaking to her teachers.
22The factual basis of sentencing is therefore adequately summarised in the summary of prosecution opening for trial dated 26 February 2024. That summary was, after all, based on the account that she had given in the video-audio recorded statement, and when she gave sworn evidence at the special hearing in November of last year, she adopted the truth of that VARE account. There is just no point in my descending chapter and verse into any great detail in these my reasons - I do not need to.
23I will give only a brief summary of the facts, and that is so that my sentence does not exist in a vacuum for anyone who happens to access these reasons when they come to be published.
24The very brief summary is as follows: Sofia was born in August 2009, and she was either nine or ten years of age on the occasion when her mother left the family home to go to an event after dinner one night in that between dates period back in 2019. This left Sofia and her older brother and her younger sisters in your care. She went to sleep in a room she shared with two of the younger girls. You went in some time later, closer to 10:00pm and you woke her up and told her to come with you to the master bedroom. She did so.
25It seems possible you were in some way affected by alcohol, though that is in no way mitigatory. You told her to sit on your lap. You took off her bike shorts and her underwear. You kissed her on the mouth with a tongue kiss, hence Charge 2. Your tongue actually went into her mouth. You then penetrated her vagina with your erect penis and had sex with her without a condom. She described being forced into that position. It was rough and she started crying and felt pain and was scared. You told her to shut up and continued to penetrate her. She described the entire episode as spanning half an hour to an hour - see the VARE Question 301. That was obviously an estimate, and estimates are by their very nature not reliable. I am certainly satisfied beyond reasonable doubt that this was not a fleeting activity lasting only a matter of seconds. I am not able to determine to the criminal standard if you ejaculated.
26You then told her that her vagina was only for her and her husband, and you then touched the upper front of her vagina with your fingers, moving your fingers up and down on a number of occasions. At one point you told you daughter that she needed to shave.
27You also told her not to tell anyone about what had happened.
28She returned to her bedroom but disposed of her clothes in the laundry, as she no longer wanted them anymore. This all occurred on this one occasion when she was in Grade 4. The actual date could not be ascertained, hence the between dates period alleged.
29She described being scared about what had happened and feeling that she could not trust anyone.
30In Grade 6, Sofia made some disclosures to some of her young school friends and then sought out a teacher in an online survey raising in that survey the need to discuss a matter privately with the teacher. She met with the teacher, made the disclosure, and that process led on to the notification to the police on that same day in October 2021, with the VARE taken from your daughter on that day and the investigation commencing.
31There was no issue taken at trial as to your being Sofia’s father, knowing that you were, or as to her age at the relevant timeframe. Nor as to the fact that what she was describing was undoubtedly sexual touching in relation to Charges 2 and 3 and penetrative conduct in relation to Charge 1. The only issue in the trial was the happening of the various alleged acts, not how they would be characterised if the jury was satisfied beyond reasonable doubt that they did take place.
32Well, of course, the jury was satisfied beyond reasonable doubt that each of these acts took place.
33It is conceded by your legal team that this is very serious offending - see paragraph 10 of the written outline.
34So much then for what really is only my brief summary of the offending. Obviously greater detail can be found in the trial evidence, so for instance, the video-audio recorded evidence of your daughter from 2021 and her account at the special hearing from November of last year, as well as the evidence from others, including the school friends and her teachers.
35I see no need to go into more detail as to the facts as there is simply no controversy as to what these verdicts mean or the factual basis of sentencing.
36I have said already, you have been in custody since the day of verdict.
37After verdict and in the lead into the plea, apparently your victim was seeking to retract her allegation. A chronology setting out the steps that she took was placed before me on Tuesday of this week. Initially she was saying that it was just all too stressful. On 24 April she sent an email to the Crown and the informant seeking to retract her allegations. She was then dropped off by her mother at the police station on ANZAC day where she sought to retract her allegations. That mother is the person said to have encouraged her not to tell the truth to the police back in October 2021. She provided no support at all for her daughter on the day that the daughter came forward and made these disclosures. That same person, the mother, was the one who felt a large degree of shame at the very making of the allegation by her daughter. Steps had to be taken to try to ease the shame that the mother felt had been brought upon her family by the daughter making the allegations. So it was then that when the mother was questioned at a s198B hearing, arrangements were made to organise a specific interpreter from interstate, so one from outside the community, and to have that interpreting conducted online to avoid any increase of the sense of shame that the mother felt. So these were steps taken to avoid anyone in her local community hearing of the existence of the allegation.
38An application was made by Mr McGlone to the court on the morning of the plea on Tuesday of this week to adjourn the hearing of the plea to permit the lodging of an appeal against conviction and then to permit a stay of the sentence pursuant to s309(2) of the Criminal Procedure Act. That application was made with virtually no notice to the court other than the bare provision of a decision of Croucher J from the matter of R v Gant & Siddique[3]. There was no hint provided by the defence as to what this concerned prior to my coming onto the bench. That such a stay application is most exceptional is plain enough from the case law in this area. I refused the application to adjourn, and I proceeded with the plea.
[3]R v Gant & Siddique [2016] VSC 662
39The amount of pressure being brought to bear on this young girl can scarcely be imagined. I am not suggesting you are a party to any of this. The background here though was of the mother previously telling the daughter on the day of disclosure back in October 2021 to lie to the police and to say that nothing had happened. She was resistant to that entreaty. She was at the police station and being encouraged to lie by her mother, who was obviously not supporting her daughter in any way. See the notice of additional evidence from Detective Senior Constable Hayne.
40Sofia gave evidence before me on the special hearing. She had ample opportunity to retreat from the allegation either directly or even to water it down or be fuzzy as to the happening of any of these acts. On oath, she rejected any suggestion that the events did not take place. There was not the slightest suggestion of any doubt in her mind as to these acts having taken place, nor was there any approach made by her to recant leading into the first trial or after the first trial and leading into the second. I do not doubt that she is under great pressure to recant. No doubt she had been approached to make a victim impact statement. Incest is an awful crime with deep and confusing impacts for any victim. The offender is a loved one, here a father to the victim, a husband to the girl’s mother and the father of the girl's many siblings. I saw nothing in the way she presented to suggest for one moment that she was doing anything other than doing her level best to tell the truth, as she was bound to. I have not formed any view as to the verdict being unsafe on the materials available to me and have strong suspicions the victim is bowing to the understandable pressure which just exists in this setting. No doubt these matters will be ventilated in the Court of Appeal in due course. It did not warrant my staying the sentence.
41As a result though of this conduct the promised victim impact statement did not arrive. I sentence on the basis of these verdicts, that these acts have taken place as she said they did. Plainly enough the impact would be very large. How could it not be?
42Incest is notorious for the deep impact it causes to victims. You were the trusted adult, her father, and she was only a child, nine or ten years of age.
43She kept it to it to herself consistent with your demand. She did not feel free to raise it with her mother. The evidence of her distressed condition two years later when disclosing to the teachers was powerful indeed, and, for what it is worth, entirely inconsistent with her recent endeavours to recant the allegations.
44I take into account the impact of your crimes.

In Mitigation
45Mr McGlone conducted the plea in mitigation on your behalf, assisted by Ms Siriwardana.
46I had made it very clear on the day of verdict that I expected the Practice Note (PNCR 2-2022) would be complied with in terms of the filing of the materials. I really should not need to make clear that there should be compliance with the Practice Note, but it is breached routinely. That request fell on deaf ears, with the defence submissions filed at 4:20pm the day before the plea and with no sensible or satisfactory explanation provided for that breach. I was also critical of your counsel for including some matters within the submissions which I believed ought not to have been included, such as reference to some sentencing outcomes and statistics for matters not covered by the standard sentence scheme.
47These failings have nothing to do with you. It is not your fault that the filing requirements in the Practice Note were ignored. Nor is it your fault that some irrelevant material was presented on the plea.
48I was critical of your counsel, not unduly so in my view, but of course that is where it stops. None of these things lie at your feet and you are not to be punished in any way for any failure or misjudgement as to the way the plea was presented. I put those matters behind me obviously enough.
49Mr McGlone relied upon a written outline of submissions dated 27 April 2025. He had filed a report from Dr Cunningham dated 17 April 2025.
50That report sets out your background, as did the written submissions to some extent.
51So, it was then I was informed as to your family background as well as your educational, employment and relationship history. Mr McGlone made some submissions as to your prospects of rehabilitation. He took me to your very brief history before the courts and he spelt out the presence of family support. A number of family members attended the plea, and some are back present today either in person or remotely.
52He addressed the court as to the level of objective seriousness of the offences, as well as the relevant sentencing purposes in play here.
53He made some submissions as to the principle of totality of sentence.
54The written submissions went into quite some detail as to the absence of some features of aggravation that do, from time to time, exist.
55I asked Mr McGlone to detail the matters actually in mitigation here, as opposed to the matters of aggravation that were absent. He indicated that there was not much in mitigation in this case. That is not a criticism in any way of Mr McGlone, it is just the fact that with the exception of the failure to appear charge, this case did not involve a guilty plea, early or otherwise, and there was no remorse. He was explicit in stating that there was no reliance at all on the application of any of the principles from the case of Bugmy[4] dealing with the mitigatory effect of a disadvantaged background, or the case of Verdins[5] dealing with the impact upon the sentencing process of mental illnesses or psychological conditions existing at the time of offence or sentence, or both.

[4]Bugmy v The Queen [2013] HCA 37 (“Bugmy”)
[5]R v Verdins [2007] VSCA 102 (“Verdins”)
56There was in fact no claim made as to any real reduction in your moral culpability. There was no deficit in your capacity to understand how serious these crimes were. Alcohol may have disinhibited you to a degree, that is, I must say, far from certain on the materials before me, but even if it was the case, that is not a matter in mitigation here. You knew what you were doing. You spelt out to your daughter, correctly, her rights in relation to her own body even as you breached those rights.
57Mr McGlone relied chiefly then on the following matters, and there is a relationship between them, that is:
·that the offences occurred on a single date back in 2019 and were committed by a man with no relevant criminal history, prior or subsequent;
·that you were a man of otherwise good character with family support and prospects of rehabilitation.

58He referred to some sentencing statistics set out in paragraph 15 of his outline. He referred to comparable cases in paragraphs 17 to 21. I was not assisted by those submissions. Four of the five cases were for sentences passed for offending not even covered by the standard sentence scheme. Only the first case of Mitchell[6] was subject to that scheme, and Mitchell pleaded guilty and was remorseful.
[6]DPP v Mitchell (a pseudonym) [2022] VCC 2027 (‘Mitchell’)
59Given its date, the sentencing snapshot referred to would relate to some sentences imposed where the offence was not even covered by the standard sentence scheme.
60Your counsel conceded the seriousness of the offending and that a prison term was required here, and one obviously requiring the fixing of a non-parole period.
Prosecution
61Mr Brustman who appeared at the trial relied upon two sets of written submissions, the second being an addendum. The addendum related mainly to a correction of an error in terms of the calculation of the length of the reporting obligation under the Sex Offender Registration Act. It also referred to some so- called comparable cases. It was not being suggested that those cases were on all fours. They were not. They were all pleas too, by the way. The written submissions filed by the Crown were quite uncontroversial, so I see no need to set them out in these my reasons which will be already over long.
62The Director of Public Prosecutions was calling for a head sentence and a non-parole period, but of course your counsel had already conceded, correctly, that such an outcome was the only outcome open to the court in this case.
Background
63I will turn to your background now. I will do that quite briefly, as I will act on what has been placed before me in the expert report, the written submissions and also the oral presentation of the plea. I see no point setting out in my reasons all of your background. I accept the account placed before me.
64By way then of executive summary, you were born in South Sudan in June 1986, so you are 38 years of age currently. As with so many born in that region, your life was very significantly impacted by political instability and hostilities, and you fled at a young age to Ethiopia with your mother and siblings. Ethiopia was better but hardly free of issues with famine and then civil war and the family at one point moved back to Sudan. I understand that you attended a boarding school in Kenya and completed the equivalent of Year 12 in 2003. You could not at that point return home to Sudan, so you came to Australia as a refugee with your mother and some of your siblings. It was here that you re-established your links with Bethany Paget[7] and married in 2005. You have a number of children. You and your wife would regularly travel back to Kenya and to Sudan.
[7] A pseudonym
65I was told, and accept, that you are an Australian citizen, so the spectre of risk of deportation does not arise in this case.
66Your father had a stroke and was unwell, and indeed wheelchair bound in Sudan, and you were travelling back there to care for him. He died in 2020.
67You have had a decent or solid employment record in Australia, as described in paragraph 8 of the outline.
68I have said already there is obviously family support.
69Dr Cunningham says you have an adjustment disorder. You have had no contact with your immediate family, and that has not been easy. Tragically your oldest child James[8] died in a drowning incident on Boxing Day 2022.
[8] A pseudonym.
70I have mentioned already you have only the two appearances in that prior criminal history filed before me, and as I said earlier, they are related to each other and have no relevance at all to my task. Nor the subsequent matter that I have been told about.
71It is, though, not that unusual to have someone dealt with for these sorts of crimes who has no criminal history whatsoever. Someone who is otherwise of good character.
72The weight given to good character will vary and will depend on the nature of the charges, their level of seriousness and the particular weight to be given to the various purposes of sentencing. Past good character can have a reduced significance where serious offences are often enough those committed by people who otherwise are of good character, such as these offences.
73Nonetheless, of course you are entitled to, and do call in aid, your past good character. I take that into account.
74I do not suggest I have set out all of the detail of your background, I said I would not. Well, your counsel Mr McGlone was explicit in stating that he was not in any way relying upon the principles from the case of Bugmy, that your disadvantage did not rise to that level. In the past, many counsel, and some courts for that matter, took the view that there had to be significant or profound level of disadvantage before the principles from that case were enlivened. There is in fact no particular threshold, as a number of recent cases from our Court of Appeal have made very clear; disadvantage is disadvantage. Having looked at your early background more closely since the plea, especially the greater detail of it set out within the expert report, it was hardly an enviable early background characterised, as it was, by dysfunction, lack of safety, uncertainty, instability and then exposure to the refugee experience. I take it into account, and I give it full weight. I take it into account in mitigation, and I actually do give some weight to the Bugmy principles eschewed by Mr McGlone.
75I have mentioned the report of Dr Cunningham marked as Exhibit 2 on the plea. I will not set out much detail from that report. He makes some statements as to your rehabilitative needs. I have had regard to it in making judgements as to the mitigatory impact of your early background. You have an adjustment disorder, though that relates to the conviction - see p3. You have some symptoms of depression and anxiety related to the court outcome. You have understandable feelings of grief and loss in relation to the tragic death of your son, James. You are viewed as a moderate risk of sexual reoffending. Mr McGlone correctly conceded that none of the principles from the case of Verdins were enlivened here. I take into account that report in the ways contemplated by your counsel's submissions to the Court.
76You are not to be punished for running a trial. You ran a trial as was your right. But, of course, having done so there is simply no remorse on display in this case. That is not a feature of aggravation. It is just that you do not have at your disposal on this plea the very large discounts available to one who has pleaded guilty at an early stage and who is remorseful for their crimes, the things spoken of in the case of Mitchell, to which I was referred. Those sorts of mitigatory considerations are worth a great deal indeed when dealing with an incest matter and a child complainant. We can see the dimensions of those benefits in that case by reference to the s6AAA declaration made by Judge Chettle, who passed that sentence in Mitchell. Those things do not exist here.
Rehabilitation
77I turn now then to your prospects of rehabilitation. Given the ongoing denial of the offending, and the seriousness of this offending, it is really not that easy to make judgments as to those future prospects. From the expert report, you seemingly have none of the issues that often enough hold back the process of rehabilitation, and by that I am speaking of things such as highly problematic drug or alcohol issues or serious mental health issues, or even mental illnesses, including intellectual disability contributing directly to the offending. Some of those things, where they do exist, may even attract some mitigatory value by virtue of a reduction of culpability. We have no such issues here at all. There is no mental illness in any way explaining this conduct. There is no mitigatory cognitive deficit. There was the suggestion of some disinhibition brought about by alcohol, but that really was dependent on the view of a nine or ten year old girl, and she was not definitive in that regard in relation to your alcohol use. Indeed, it was put to her on your behalf that you were not in any way intoxicated on the night. You have stated to the expert that your drinking in the timeframe was very moderate, and that was seemingly the view taken by your wife who saw no signs that you were the worse for wear at all on this night.
78At best, alcohol use might provide context to the offending. It could not explain it and does not. There is no reduction in your culpability in this case arising from alcohol use.
79You are 38 years of age and there are no relevant prior or subsequent criminal matters. You do have some family support, and you have had a decent or solid employment history. You are a person otherwise of good character. As I have said, I do not view those criminal matters in the history as having any relevance to my task.
80But what was in your mind causing you to act in such an appalling and seriously criminal fashion? Even as you engaged in the serious sexual crimes, you were spelling out to your daughter her rights in relation to her own body.
81You were a mature man. You had no cognitive deficits. You knew exactly what you were doing. Your moral culpability is high. The fact that it only happened on this one occasion is no explanation at all. There were three acts on that one occasion, all of them serious crimes targeting your own child who was only nine or 10 years of age. You continue to deny the conduct.
82I have the risk assessment.
83You are not an elderly man falling to be sentenced for crimes occurring 25 or 30 years ago with nothing occurring since. That is not the setting facing me. Often enough, a more elderly offender might be assessed as having a low risk given the passage of time and the lack of any recurrence of offending over a number of decades, and perhaps also their advanced age or poor health or the absence of access to children, or the opportunity to offend in the limited future that lies ahead post-release, given their advanced age. I do not have those things here.
84You are only 38 years of age. One would expect that upon your ultimate release you will hope to forge intimate relationships in the future with women, and those women may have children, or for that matter, grandchildren. What is the risk? It is very hard for me to know.
85It is possible that the Sex Offender Registrations Act limitations and your reporting obligations under that Act for 15 years post-release may serve to reduce your future risk upon your ultimate release.
86I do work on the theory that the very substantial sentence I will soon impose will have a sizable role in deterring you in the future. It is your first time in custody, and it will be for a very long time indeed.
87It is possible, if not likely, that you may be required to do some sex offender program as a condition of being granted parole. I really cannot make any judgments currently as to the benefits that may flow from those sorts of programs.
88I have not found it easy to reach views as to your prospects of rehabilitation or your risk of re-offence.
89I can only be relatively guarded at this point in time. There is obviously a risk of re-offence, though plainly not against this victim. She will be well into adulthood when you might once again be free in the community.
90I am ultimately prepared to accept that you have reasonable prospects of rehabilitation.
Standard Sentence Scheme
91I am dealing with three crimes which fall under the standard sentence scheme.
92The effect of that scheme has been discussed in a number of cases including initially in the case of Brown[9] back in 2019.
[9]Brown v the Queen [2019] VSCA 286 (‘Brown’)
93The period of ten years is specified as the 'standard sentence' for the crime of incest, four years is specified as the standard sentence for the sexual assault of a child charges. That period is the sentence for an offence that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness, without regard to purely personal matters.
94What is plain from the Act itself and from the many decisions interpreting those provisions since that case of Brown, is that the standard sentence is only one of a number of matters that I am required to take into account. Where it applies, as it does here, I must take it into account as one of the factors. This scheme was not intended to interfere with the intuitive synthesis that lies at the heart of sentencing in this state, nor was it in any way countenancing two-stage sentencing processes.
95That style of sentencing is prohibited.
96The scheme does not have primacy over other factors which must be taken into account. The standard sentence scheme introduces an additional factor in the form of this legislative guidepost.
97It does not represent a starting point from which the sentence is to be fashioned. I do not start at that point, for instance either four or ten years and then work my way either up or down from the standard sentence figure making a series of adjustments taking into account various matters.
98Nor does the scheme otherwise affect the matters that the court must take into account. It does not change the requirement to, or the means and manner of, assessing the seriousness of the offence.
Current Sentencing Practice
99I am required to take into account current sentencing practices. That is not a controlling factor.
100The standard sentence scheme does impact upon the ability to take into account sentencing practices from cases dealt with where the scheme did not apply. Where the scheme applies, as it does here, I must only take into account current sentencing practices in relation to cases where the scheme applied to those past sentences. That is why greater care needs to be taken in pointing to comparable cases or statistical material.
101The crime of incest has always been viewed seriously by the courts.
102In the decision of RBN v The Queen, the then President of the Court of Appeal stated the following:
'This court has often said that incest is a crime of great seriousness. It is an appalling crime involving the worst kind of breach of trust as between parent and child, and it is notorious that it causes long-term damage to the child victims whom it is the parent's first obligation to protect.'[10]
[10] [2011] VSCA 261 at [13].

103The sentencing practices for the crime of incest have undergone very significant changes in this State owing to the strong observations made in the cases of Dalgliesh. There were three cases. There was firstly an authoritative pronouncement from the Court of Appeal in the original appeal decision of Dalgliesh[11], which altered our approach to sentencing in this area. We then had the decision of the High Court in that same case[12] remitting the matter back to the Court of Appeal to be appropriately dealt with and then that remitted hearing in the Court of Appeal.[13] That series of decisions spelt out in some detail the seriousness of the offence and the many reasons for that.
[11]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148.
[12] [2017] HCA 41.
[13] [2017] VSCA 360.
104The Court of Appeal in their first judgment dealt with the misconception that they said had seemingly arisen over time as to crimes of incest not really being crimes of violence.
105Plainly, sexual penetration of a child is by its very nature an act of violence.
106The Court of Appeal in that original Dalgliesh[14] decision concluded that current sentencing practice did not reflect the objective gravity of the offending or the moral culpability of the offender. The court spoke of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under 18, the recurrent features being extreme invasion of the victim's person, exploitation of a vulnerable child, violation of societal norms, long-term and severe impact, serious breaches of trust and the undermining of the familial roots of society. These features, they said, are common in incest cases occurring across the range of seriousness. They went on to say that the factors distinguishing worst-case offending from mid-range offending was the nature and the extent of the offending conduct, its frequency and duration, and of course the circumstances in which it occurs.
[14]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148
107The Court of Appeal concluded that the sentences imposed in the past devalued the objective gravity of the offence as informed by the egregious breaches of trust and the consequences suffered by victims; that there had been inadequate sentencing practices in the past.
108How had this state of affairs arisen? The Court of Appeal in that case considered in great detail many of the past cases and the statistics and what it was that they disclosed, which was a complete lack of sentences above a certain band, a band which was so far removed from the maximum penalty provided for by the Parliament.
109I interpose, not much seems to have changed when I look at the recent statistical material.
110There had been horrendous examples of the crime which seemingly had not been adequately punished and the weight given by sentencing courts to current sentencing practice had some responsibility for that sad state of affairs.
111It is clear enough from the Dalgliesh line of cases that I have referred to that we had somehow in this State got to the point where inadequate past sentencing practices for the crime of incest themselves operated as an unwarranted restraint on sentencing. That the significance of current sentencing practices had, for whatever reason, been elevated to the point where they had then become determinative of sentence, operating in a way they ought not to, almost as an arithmetic fetter upon the exercise of sentencing discretion by the court. That they had in fact become a controlling factor or primary consideration. Well, they are not, and the High Court has now made that abundantly clear.
112That is why such caution has to be adopted in considering sentences imposed in a pre-Dalgliesh timeframe. The Judicial College of Victoria case tables alert judges to the need for caution in looking at pre-Dalgliesh cases.
113Further, there was even a phase post-Dalgliesh, despite the very strong statements in that case, where it was thought that the way to deal with inadequate sentencing practices in the past was by way of a slow or incremental or gradual uplift rather than by an immediate and direct response. There was, the Court of Appeal said, an aspect of fairness in that approach for people who had pleaded guilty with the expectation of being dealt with according to the admittedly deficient, yet then known, existing current sentencing practice. Well, the High Court made it plain enough that one could not have any legitimate expectation of being dealt with on a flawed basis, but even if one did, the court's true obligation was to sentence appropriately. That practice of incremental or gradual uplift was quite wrong, as the High Court made very clear.

114So, as I say, looking at past cases, whilst always problematic enough, is more so in this area where the impact of Dalgliesh may not have filtered though.
115A further significant issue is that I am dealing with standard sentence offences in this sentencing exercise and the sentences passed for matters not covered by that scheme are just not to be taken into account by me. I can have regard to statements of principle, but not the actual sentences themselves.
116I am dealing with one offence of incest and two charges of sexual assault of a child under the age of 16. I also have the charge of failing to appear.
117It was here there that there was a problem in the manner of the presentation of the plea - see paragraphs 15 and 17 to 21. I must only have regard to sentences previously imposed for the offence as a standard sentence offence - see s5B(2)(b) of the Sentencing Act. Mr McGlone was referring me to what he described as five comparable cases. Only the first case was a sentence imposed for a standard sentence offence. That sentence followed the earliest of guilty pleas, one made in the course of the global pandemic, and so with a heightened benefit, and one indicative of remorse with a man calling in aid the fifth limb of the case of Verdins. There was a feature of seriousness posed by the filming in that conduct, but I note that there was a separate charge which pertained to that conduct. Judge Chettle made it clear in his reasons that the filming was not treated as a feature of aggravation for the incest - see paragraph 25. Mitchell received 12 years' imprisonment on the incest with six months' cumulation for the filming. He had not run a trial. Had he run a trial, Judge Chettle indicated the quantum of the sentence that would have been imposed. The s6AAA declaration was 17 and a half years with a non-parole period of 13 years.
118None of the other sentences presented by Mr McGlone are of any value to me. None were standard sentence exercises. They should not have been referred to. Judge O’Connell in the case of Churchill[15], for instance, spent a good deal of time dealing with the moderating effect by way of equal justice of the lower sentencing practices that were in existence at the time of that offending back in 2005. There was a significant moderating effect.
[15]DPP v Churchill (a pseudonym) [2023] VCC 300
119Some of the cases involved differing forms of penetration. One, Carter[16], involved an eight-year delay after the formal police interview and before Carter was charged. That offending took place in 2003-2004. The Harris[17] offending took place in 2001 to 2003. So, each of these matters, other than Mitchell, were not covered by the standard sentence scheme, and some of those sentencing exercises were undertaken at a time where I suspect the full impact of the Dalgliesh line of authority was perhaps not so clear.
[16]Carter v R [2018] VSCA 88
[17]DPP v Harris [2018] VCC 2039
120I was not at all assisted by being taken to those cases. To have regard to the sentence imposed would be to ignore the statutory prohibition set out in ss5 B2. One of the purposes of the standard sentence regime was to strike free of the fetter of inadequate past sentencing practices. I am simply not free to ignore that provision. Indeed I must apply it. The Crown placed before me three cases which included that case of Mitchell. The other two also arose from guilty pleas. They were, at least, all standard sentence matters.
121The defence reliance on the incest sentencing snapshot No. 284 of 2023, I am afraid suffered from the same vice. Statistics are just numbers, pure numbers relating to the sentences imposed in that specified timeframe. There were no principles to be gleaned at all from the bare numbers. That snapshot embraces sentences imposed in the period from 2017-2018 to 2021-2022. For some reason Mr McGlone was seemingly also referring to some statistics for rape - see paragraph 15.
122The standard sentence scheme of which I have spoken only came into force for offences committed after February 2018. Many offences of incest follow a very decent delay in reporting - many are historical. Plainly enough a number of those matters embraced by those statistics in that snapshot will pertain to non- standard sentence outcomes, or for that matter, sentencing outcomes where the full weight of the Dalgliesh line of authority was not necessarily that clear. There is the useful function in the Sentencing Advisory Council online statistics to narrow the search down to sentences imposed for standard sentence offences. That avoids that problematic issue of having regard to non-standard sentence matters, the very thing that I must not have regard to.
123If counsel seek to rely upon statistical material in relation to a standard sentence plea, they need to isolate the statistics relating to standard sentence matters. There needs to be much greater care taken than was taken here, and the same applies in relation to any so-called comparable case. There is no point referring off to a so-called comparable case that is not the subject of the standard sentence scheme.
124In relation to the incest and the sexual assault matters, as I have said already, you have none of the very sizeable benefits that accrue to a person who has pleaded guilty.
125I have looked at the case collections available on the online Judicial College of Victoria sentencing site relating to both the crime of incest and the sexual assault of a child under the age of 16.
126I only have regard to matters where the sentence was imposed for a standard sentence offence.
127I have looked at the Sentencing Advisory Council online filtered statistics pertaining to sentences for each crime, again where the standard sentence scheme applied.
128Statistical material is inherently limited and can never greatly assist a court in the individual sentencing task at hand.
129Statistics, even the filtered ones that I have referred to, provide none of the detail of the offence or of the offender. None of the matters in mitigation or aggravation are disclosed in what are just bare numbers. They do not for instance disclose the frequency or the duration of the conduct. They do not describe or identify the form of penetration or any of the surrounding circumstances. They do not describe whether the charge was rolled up or representative or a single event. They do not descend into the detail of the impact in a particular case. They do not even describe whether the matter was a sentencing exercise after a trial or after a guilty plea. They do not touch upon remorse or prospects of rehabilitation.
130I am exercising a sentencing discretion in relation to your crimes, and I am acting as a judge, not as a mathematician or statistician. What has happened in other cases, or as is disclosed in the statistical data, cannot provide the answer to my task. What has happened in other cases does not operate as a precedent, and as I said on the plea, so many of the cases represented in the statistics would arise from guilty pleas with a whole range of mitigatory features that are completely absent in this case. I said earlier, a guilty plea in an incest matter is a very significant mitigatory matter for obvious reasons, given the savings involved and the sparing of child witnesses from giving evidence.
131One can never find an identical case, and even if one could be found, there is no such thing as one correct sentence. There is instead a range of available sentences open to a court. Mitchell was being put forward as a comparable case by each side and at least it related to a standard sentence matter where there was a single penetrative act. The 12-year sentence for incest was, however, imposed on a plea.
Gravity of Offences
132I am required to consider the gravity of the offences before the court. There was no dispute that your culpability was high here. No dispute that this was extremely serious offending.
133Incest is an inherently serious crime, so too sexual assault of a child under the age of 16.
134Your counsel was not suggesting otherwise but was endeavouring to assist the court in making judgments as to the objective gravity of these offences. It was for this reason that he addressed me as to the absence of a range of features of aggravation that sometimes do exist. I cannot say that I was greatly assisted by drawing on principles from cases dealing with rape allegations - see paragraph 7 - nor am I greatly assisted by reference to the case of Reid[18] from 2014 looking to guidelines from a 1989 English Court of Appeal decision. I have mentioned already the Dalgliesh cases that are more recent, and there have also been many cases arising since in our Court of Appeal in a post-Dalglieshand a post-standard sentence era.
[18]Reid (a pseudonym) v R [2014] VSCA 143
135Your counsel worked his way through various factors, nonetheless - see paragraph 9. So, he went to the absence, for instance, of premeditation. Obviously, there was some premeditation here in going to the room and extracting your daughter and then undressing her. He was speaking of the absence of any earlier planning, and I accept that submission. He submitted that you acted alone. Well, this was not a gang rape. It was a crime of incest, and though it is not unheard of for there to be joint activity, your acting alone is not mitigatory, it is very much the norm. He spelled out that the offending comprised the three assaults but was limited to that one occasion. Well, if there was greater frequency the answer is I would be dealing with a more serious instance of the crime. You told your victim to shut up in response to her obvious distress, your victim being your daughter. No weapon was used but there was some pain. He conceded it was an unprotected act and there was obvious vulnerability in relation to each one of these crimes. You told her not to tell anyone. Mr McGlone had earlier raised in his submissions the absence in this case of perversions abhorrent to the victim, so humiliation or degradation over and above the act itself.
136Well, I do accept that there are some features of aggravation which do not exist in this case. That is not a matter in mitigation.
137I am not dealing with conduct occurring over many years or occurring at a great level of frequency. I am dealing with what I am dealing with.
138The breach of trust is inbuilt into the crime of incest. The familial relationship is after all an element of the crime. Breach of trust is always there, and it must not be doubly counted by me when assessing the gravity of this instance of incest. It is why the crime is so seriously viewed and why it commands a 25 - year maximum prison term.
139Sexual assault of a child under the age of 16 is, however, in a quite different position, it is not a crime where a breach of trust is inbuilt at all. It can be committed without any breach of trust at all. Here, of course, Sofia was your daughter. She was in your charge. She was under your care in her own home and with her mother absent from that home.
140There is a serious breach of trust in relation to the two sexual assault charges that I am dealing with. That is relevant to the assessment of the gravity of those crimes as opposed to the incest where the relationship is built into the charge.
141As to those sexual assaults, then there was the conduct itself.
142Charge 2 involved a tongue kiss delivered by a father to his daughter. Charge 3 involved skin-on-skin contact in the genital area but obviously did not involve penetration.
143The factual basis of a charge of sexual assault of a child will never involve a penetrative act. Sexual assault of a child could be constituted by the briefest touching, even touching on the outside of the clothing to the buttock or the breasts in broad daylight or in a public place. For Charge 3, I am dealing with skin-on-skin touching to the most intimate of areas by a father upon his 9 or 10 year-old child, a child who had been woken up and removed from her own bedroom and taken to the master bedroom at night and undressed. This conduct was committed by the person charged with the duty to care for and protect that child. It is an unmistakably serious example of that crime. Charge 2 is less serious given the conduct.
144As to the incest charge, I am dealing with unprotected penile/vaginal penetration in the face of some distress and discomfort on that same occasion.
145You knew exactly what you were doing. You knew that it was wrong. You spelt out to your daughter the sanctity of her own body whilst you set about defiling it.
146Your conduct was highly culpable.
147As I said on the plea, it is easy enough to envisage or construct a hypothetical worse case of any crime, including crimes of incest or sexual assault of a child under the age of 16.
148I have sat as a judge now for over 15 years, and in that period I have seen pretty much every feature of aggravation that one could imagine.
149They generally do not exist in a single case.
150An examination of the Judicial College of Victoria table of sentencing cases will disclose the existence of many and varied aggravating features over the years. There are cases where there has been offending spanning many years, cases where there have been multiple pregnancies, cases where there has been childbirth, or even cases where an abortion has been organised by the offender. There have been some cases involving serious acts of violence over and above the violence constituted by the actual penetration, cases sometimes involving threats. Sometimes there has been filming or photography or other acts that are designed purely to humiliate or to degrade. More rarely, there has been 'in company' offending - that is unusual. Sometimes there are very small infants offended against. The possibilities are almost endless in terms of features of aggravation.
151There is always a danger in trying to rank offences by applying an adjective to describe them. Low-level, mid-level, high-level or falling towards any of those levels, what does it really mean? Those terms, I am sure, mean different things to different people, to different practitioners, to different judges. It is a practice that has been, at least to some extent, disapproved of by the Court of Appeal in the case of Weybury.[19] Yet, of course, I must strive to reach a view as to the nature and the gravity of these offences, and further, the standard sentence scheme leads me to consider where these matters sit viewed purely objectively.
[19]DPP v Weybury [2018] VSCA 120.
152The incest charge does not fall anywhere near the highest level. Nor, though, does it fall at the lowest level - nowhere near it. I believe it falls at the mid-range viewed purely objectively.
153The sexual assaults have a much lower maximum penalty but Charge 3 represents, in my view, a serious example of that offence given the physical conduct engaged in, the venue and the timing, the age of the girl and the relationship then in existence. It falls comfortably above mid-range viewed purely objectively. Charge 2 falls below mid-range. The breach of trust in relation to those two sexual assault offences is a significant feature of aggravation.
Serious Offender Provisions
154Mr McGlone accepts that a prison term is unavoidable here for each indictment charge and that I will therefore be sentencing you on one charge as a serious sexual offender. If I sentence in the order of the indictment charges, that would mean that those provisions would apply for the sentence imposed on Charge 3.
155Under the Serious Sexual Offender provisions, unless I otherwise direct, that sentence passed upon you would be served cumulatively upon the earlier sentences imposed upon you.
156Additionally, for the sentence imposed on that charge, I would be required to treat the protection of the community as the principal purpose of sentencing - see s6D. To achieve that purpose, for that charge where you fall to be sentenced as a serious sexual offender, I do have the power under the legislation to impose a disproportionate sentence to achieve that principal purpose. No-one was suggesting that that power could or should be exercised here, and I make plain that I will not pass any disproportionate sentence.
157I am required though to give weight to the Serious Offender provisions. I must give some weight to s6E. It is not my job to undermine that provision. It is clear, though, that the case law in this area spells out that I must still pay regard to the principles of totality of sentence, which I will move to in one moment. Totality, though modified, is still of importance in my task.
Totality
158I am, accordingly, required to give consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect in endeavouring to avoid a crushing sentence and to ensure that the overall effect is consistent with your actual criminality here. Your overall criminality was high.
159These three offences occurred on that single occasion running into each other. The temporal relationship is obviously relevant to the issue of cumulation as this is a tight criminal foray. To make every sentence cumulative would plainly infringe the principle of totality, modified though it is in this case in relation to Charge 3.
160However, there is the need to cumulate to some extent here. Though committed in this one episode, there were three separate acts. No doubt each act would have impacted upon your daughter. That three offences occur in tight proximity, or in a single episode, is no warrant for complete concurrency at all. Nor was that suggested to be ‘on the cards’ here by your counsel. Mr McGlone was not suggesting there should be total concurrency here. I also have the provisions of s6E as to the presumption of cumulation, in relation to that third sentence.
General
161I will turn then to some general matters of sentencing.
162There are many matters which must be taken into account by the court when imposing sentence, including of course the maximum penalties, the impact of the offence and current sentencing practices. Also, in this case, the existence of the standard sentence scheme.
163I must consider the various purposes of sentencing set out within the Sentencing Act. So, punishment, rehabilitation, denunciation, specific and general deterrence and community protection.
164You do have some prospects of rehabilitation. I pay regard to them. I have said I am guarded about them and the reasons for holding that view, but I think they are reasonable.
165I have to punish you. I have to do that justly and proportionately, and of course that is an important purpose of sentencing.
166I must denounce your conduct. That is also important. I strongly denounce your conduct. You have committed serious crimes upon your daughter. You have completely betrayed her by acting as you have. You should be ashamed of yourself.
167I must consider the protection of the community from you. That is the principal purpose for the third offence where you fall to be sentenced as a serious sexual offender. You obviously present some risk to the community. The extent of that risk is very hard for me to gauge. The expert says it is a moderate one.
168I must give weight to general and specific deterrence. Specific deterrence relates to the need to deter you from offending in the future. The lengthy sentence shortly to be imposed by this court will surely serve to deter you to a large degree. I must still give some weight to this purpose of course. You must be deterred from ever committing such crimes as these ever again.

169Plainly, if you had any sort of relevant criminal history, greater weight would no doubt be given to this purpose. But it still must be given some weight here given the serious nature of these crimes, your present attitude to them and the fact that they are not that distant and plainly were accompanied by some warped mindset.
170I have mentioned also the notion of general deterrence. That relates to the need to deter others who might be minded to commit this type of offending. General deterrence looms large in this sort of case. It is a highly relevant purpose of sentencing for these various matters that I am dealing with. These were crimes involving sexual exploitation of a vulnerable child - your child.
171We, as judges, are required to send a very clear message to those who may think it open to sexually exploit children in any way. The courts, by the sentences imposed in these kinds of cases, seek to make clear to others in the community that such appalling conduct as yours will not be tolerated and will be met with stern punishment. We seek to deter other like-minded future offenders from offending in the future.
172Prison is a disposition of last resort. There is no doubt that a very substantial prison term is required in this case.
Sentence
173I will now pass sentence.
Related summary matter
174I said some time back that I would scarcely mention the charge of failing to appear on bail. That is because it is not a matter of any seriousness at all given the setting described to me. In my view it does not even warrant a prison term. In that instance, of course, I do take into account in your favour that you have pleaded guilty to that charge and I take that guilty plea into account in the many ways contemplated by the case law.
175On that charge you are convicted and fined $200.
176Let me move then to the charges on the indictment.
177You and your family members will lose track of the numbers and the effect of my orders for cumulation and concurrency and what it all means. It can be quite confusing, and you will not know what it all means until I am finished. Do not just add up the numbers. At the end of this process, I will explain what it all means by way of a total effective sentence, and then I will tell you what the non-parole period is. Only then will you and your family understand the true effect of the sentences that I now move to impose.
178Stand up, please.
179On Charge 1, incest, you are convicted and sentenced to 13 and a half years' imprisonment. That will be the base sentence.
180On Charge 2, sexual assault of a child, I convict and sentence you to 15 months' imprisonment.
181From this point you fall to be sentenced as a Serious Sexual Offender.
182On Charge 3, sexual assault of a child under the age of 16, you are convicted and sentenced to four years' imprisonment.
Cumulation
183The base sentence is the 13 and a half years imposed on Charge 1.
184I now direct as to the level of cumulation between Charges 1 and 2.
185I direct that two months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence and the other part-cumulative sentence. To that point then there is a sentence of 13 years and 8 months.
Serious Sexual Offender for Charge 3: s6E Extent of Concurrency
186As I have sentenced you to terms of imprisonment on Charges 1 and 2, it follows that I have then sentenced you as a serious sexual offender in relation to Charge 3 on the indictment. As I said earlier, unless I 'otherwise direct', that four-year sentence would be served cumulatively upon all other sentences. That would plainly offend the principle of totality.
187I make the following direction as to the extent of concurrency for that sentence. So, I am now setting out the extent to which I 'otherwise direct or order' under the provisions of s6E of the Sentencing Act. I direct then that:
·Three and a half years of the four-year term imposed on Charge 3 is to be served concurrently upon the base sentence imposed on Charge 1, and the part-cumulative portion of the sentence imposed on Charge 2 and upon each other.

188It is then to this extent that I otherwise direct under s6. That order for concurrency provides an additional six months' cumulation upon the base sentence, Charge 1, and the part-cumulative term imposed on Charge 2.
Total Effective Sentence
189I told you it would be hard to follow. No doubt it is. These orders, both as to the extent of cumulation and then the extent of concurrency, result in a total effective sentence of 14 years' two months' imprisonment.
Non-Parole Period
190I am required by law to fix a non-parole period. Unless it is in the interests of justice not to do so, I am required to fix a non-parole period of at least 60 per cent of the relevant term. The relevant term is the total effective sentence.
191I do not believe it is in the interests of justice to fix a lesser ratio in this case.
192Whether you are admitted to parole or not will be a matter resting in the hands of the Adult Parole Board. I am prohibited from even considering that likelihood or possibility. I will not speculate about whether you will be paroled or not. That matter will be between you and the Adult Parole Board.
193I fix a period of 10 years during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
194You have spent already 21 days in custody by way of pre-sentence detention. That period is reckoned as already served by way of pre-sentence detention, and that declaration will be entered into the records of the court.
Serious Sexual Offender
195I have sentenced you as a serious sexual offender in relation to Charge 3 on the indictment. That fact is also to be noted in the records of the court.
196Have a seat please for a moment.
Sex Offenders Registration Act 2004
197You have been sentenced by me in relation to what are described in the Sex Offender Registration Act as one Class 1 and two Class 2 offences. I note, however, that all the offences described occurred on the same day, and hence they are not separately counted in terms of the calculation of the time of reporting. They are treated as a single offence under the relevant provisions.
198It follows then that you must comply with your reporting and other obligations under the Sex Offender Registration Act for the period of 15 years following your release from custody.
199I am going to shortly have handed to you a document that will explain your many obligations under this Act. It is not suggested for one moment you are going to sit down there now and read it all; it is a very lengthy document. You will need to acquaint yourself with it in due course. At this stage I am having it provided to you for you to sign to acknowledge that you have received these explanations.
200Ms Siriwardana, I am sure you have seen these documents before, they are very detailed. They are very lengthy. He is not going to sit down there and read these things now, I understand that that would be impossible for him to do that. It is simply him acknowledging by his signature that he has received these explanations, and I am required to provide that document to him. So, I am happy for you to go down and speak to him, but I will be getting him to sign a form acknowledging receipt of those obligations. Do you need to speak to your client about that at all, or not.
201MS SIRIWARDANA: No, Your Honour, but I am happy to accompany Your Honour's associate if that's appropriate - - -
202HIS HONOUR: Yes, well I will have my associate come down with that form then.
203MS SIRIWARDANA: Yes, would Your Honour excuse my back then in that case please.
204HIS HONOUR: Yes, well I understand that's been signed.
205You will have those documents in your possession, Mr Cole. You will be able to understand the effect of the Sex Offender Registration Act provisions when you read that document at your leisure, and you can get some advice in relation to it.
206What you will see when you do read it is that the legislation imposes a number of conditions upon you, including impediments to future employment in a number of areas. There are meaningful impediments to your future contact with children and the obligation to report contact, as well as many other matters set out under the Act. You need to familiarise yourself with those matters in due course, and that is because any breach of that Act or your reporting obligations under that Act is itself a serious criminal offence, one that is most often punished by a term of imprisonment.
Standard Sentence Statement
207I am required to make a statement under the provisions of s5B(4) and (5) of the Sentencing Act. 5B(4) requires me to state my reasons for imposing the sentence in relation to a standard sentence offence, and 5B(5) requires me to refer to the standard sentence for the offence of incest and sexual assault of a child and explain how the sentences I have imposed on you relate to the standard sentences.
208I am required to identify the facts, and the matters and the circumstances which bear upon the judgment I have reached as to the appropriate sentence.
209Well, I am sure my lengthy reasons to this point will explain the reasons why the sentence imposed bears the relationship that it does to the standard sentence, either below in the case of Charge 2 or at that level for Charge 3 and above that level for Charge 1.
210By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentences taking into account all the matters I am required to take into account, including the existence of that standard sentence scheme. It is, as I have said, but one of many factors to be taken into account.
211Let me just see if there is anything else then. Anything else from your perspective, Ms Altoon, or not.
212MS ALTOON: No, Your Honour, I believe that since - I was going to raise 6AAA but it doesn't appear that applies to the fail to appear charge.
213HIS HONOUR: No, no, 6AAA doesn't arise here. It did in Mitchell. Nothing from you then. Ms Siriwardana, any matters from you - - -
214MS SIRIWARDANA: No, thank you, Your Honour, nothing arising - - -
215HIS HONOUR: I mean your client's been in custody for the last 20 days or so, is there any need for me to make any sort of custody management direction at all.
216MS SIRIWARDANA: No, I don't think practically that is necessary in this situation, Your Honour.
217HIS HONOUR: All right. You will go down and have a chat to him downstairs, presumably - - -
218MS SIRIWARDANA: I will - - -
219HIS HONOUR: Whether it's in that discussion, there'll be some sort of discussion about his rights in relation to the verdict but also his rights in relation to this sentence, you will have those discussions with him?
220MS SIRIWARDANA: I will, Your Honour, and in due course again.
221HIS HONOUR: Thanks very much. What I'll do is I'll revise these very lengthy reasons when I get them back from the VGRS, I typically revise them on the day that I get them and take them home and do them overnight, but I'll make them available to the parties once I've revised them.
222MS SIRIWARDANA: Thank you, Your Honour.
223COUNSEL: As Your Honour pleases.
224HIS HONOUR: All right, Mr Cole can be removed now, thank you. I'll just sign those formal orders. Look, I'll just sign those orders in chambers, I think. 10.30 Monday then please, thank you.
- - -

[2025] VCC 577

2 May 2025