Director of Public Prosecutions v Conley (a pseudonym)
[2024] VCC 999
•27 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CONLEY (A PSEUDONYM) |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2024 | |
DATE OF SENTENCE: | 27 June 2024 | |
CASE MAY BE CITED AS: | DPP v Conley (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 999 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Incest – Conviction following 9-day trial – Mid-range offending – Serious breach of trust – Victim aged between 9 and 11 years – General deterrence – Denunciation – No remorse – Verdins principle 5 engaged – Socially disadvantaged background – Delay a mitigating circumstance – Very high moral culpability – Guarded prospects for rehabilitation
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Sex Offenders Registration Act 2004
Cases Cited:Clarkson v The Queen (2011) 32 VR 361 – R v G [2009] 1 AC 92 – Talbot (a pseudonym) v The Queen [2016] VSCA 218 – DPP v Toomey [2006] VSCA 90 – R v Ware (1997) 1 VR 647 – DPP v Walsh [2018] VSCA 172 – DPP v Bright (2006) 163 A Crim R 538 – R v Verdins (2007) 16 VR 269 – Tones v The Queen [2017] VSCA 118 – Thomas v The Queen [2019] VSCA 223 – Bugmy v The Queen (2013) 249 CLR 571 – Marrah v The Queen [2014] VSCA 119 – Newton v The King [2023] VSCA 22 – DPP v Herrmann [2021] VSCA 160 – Sabbatucci v The Queen [2021] VSCA 340 – R v Kilic (2016) 259 CLR 256 – DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428 – DPP v Zhuang (2015) 250 A Crim R 282 – DPP (Vic) v Dalgliesh (No 2) (2017) 271 A Crim R 1 – Carter v The Queen (2018) 272 A Crim R 170 – Grantley v The Queen (2018) 272 A Crim R 340 – Crawford v The Queen [2018] VSCA 113 – Stalio v The Queen (2012) 46 VR 426
Sentence: 7 years’ imprisonment – 5 year non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S P Devlin | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr P F Bloemen | Stary Norton Halphen Lawyers |
HIS HONOUR:
1Daniel Conley,[1] following a nine-day trial you were found guilty by a majority verdict of two charges of incest (Charges 1 and 2).[2] You were acquitted by the jury of one charge of indecent act with a child under the age of 16 (Charge 3). The maximum penalty for the offence of incest is 25 years’ imprisonment.
[1] A pseudonym used to protect the victim’s identity.
[2] Contrary to s 44(2) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
The facts
Background
2You were aged between 40 and 41 years at the time of the offending. You were in a de facto relationship with the victim’s mother, whom I will call ‘Julia’,[3] between 2008 and 2018. The victim, whom I will call ‘Paige’,[4] was aged between 9 and 11 years at the time of the offending.
[3] A pseudonym used to protect the victim’s identity.
[4] A pseudonym used to protect the victim’s identity.
3In 2015, you moved into a house in south-east Victoria. The victim, her mother and her sister would periodically stay at the address, before permanently residing with you in late-2015.
Circumstances of the offending
4At some point between 7 September 2013 and 14 December 2015, you walked into Paige’s bedroom while she was asleep.
5Paige gave evidence, which the jury must have accepted, that you placed your hand underneath her pyjama pants and underwear and ‘fiddled’ in the area of her vagina where she urinates from. This lasted for about five minutes. Paige eventually rolled over and pretended to be asleep. You then left the room. This conduct gives rise to Charge 1.
6On another occasion, about two months after the first incident, you again entered Paige’s bedroom. Paige gave evidence, which the jury must have accepted, that you again placed your hand underneath her pyjama pants and underwear and touched the same area of her vagina for approximately three minutes. Paige was unsure whether her sister had been in the bedroom at the time. This conduct gives rise to Charge 2.
Victim impact
7A victim impact statement (‘VIS’) prepared by Paige was tendered at the plea hearing by the prosecutor.[5]
[5] Exhibit (‘Ex’) P2.
8Paige attended the plea hearing and the VIS was read aloud to the Court by the prosecutor. In her VIS, Paige said she has lost trust in the men around her and that standing up for herself is ‘pointless’ because she ‘won’t be believed’. She said in your presence she ‘had to watch everything [she] said, wore and did’ to ensure she was not a target of your abuse. As a result, she was ‘in survival mode’ and was left with no childhood.
9Paige has battled with depression on and off and suffers from anxiety. When she hears particular noises or sees men that resemble you at work and in public, she is ‘taken back to this dark time and it will keep coming back’. She said she has been forced to relive these situations and has nightmares about the assault that feels real ‘every single time’.
10Throughout primary school, secondary school and TAFE she has struggled with disassociation. Due to constantly ‘zoning out’ in class, she said she always has to ‘catch up’ and learn independently, which has impacted her self-esteem. She also has difficulties being mentally present in social groups. She writes: ‘There have been countless occasions where I have had to walk away from a social group to just cry it out, leaving me feeling judged and isolated’.
11Paige said as a result of your offending she has been left not knowing whom she can trust. Paige is often afraid you will come to her work or she will see you on the street. She does not feel safe anywhere because to her you are everywhere.
12
Your offending has deeply affected Paige’s sense of self-worth and body image. The trauma you caused her has made her accustomed to being ‘used’.
She feels as though she lacks control of her own body and has let others take advantage of her. Paige said it has taken her a long time to learn how to ‘treat [her] body right’ but there are still many negative things she needs to unteach herself. Paige hopes to learn how to be comfortable around older men who are there to protect her, as well as learn how to protect and love herself and others. Due to her mental health struggles, she has to ‘fight harder’ in everything she does.
13The Victorian Court of Appeal has made clear there is a presumption of harm to children who are exposed to premature sexual activity and that long lasting and serious physical and psychological harm is to be presumed.[6] In this case the serious and continuing adverse effects of your abuse of Paige are writ large.
[6] Clarkson v The Queen (2011) 32 VR 361, 371 [33] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) (‘Clarkson’); DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [47] (Maxwell ACJ, Redlich and Beach JJA) (‘Dalgliesh No. 1’).
14In Clarkson v The Queen,[7] the Victorian Court of Appeal quoted with approval from the judgment of Baroness Hale in R v G[8] where Her Ladyship said:
More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.[9]
[7] Clarkson 370–71 [32]. See also Adamson v The Queen (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA).
[8] [2009] 1 AC 92.
[9] Ibid 108–109 [48]–[49].
15Moreover, the Victorian Court of Appeal has reaffirmed the important role restorative justice plays in the criminal justice system. In Talbot (a pseudonym) v The Queen[10] the Court approved the statement of Vincent JA in DPP v Toomey[11] concerning the notion of social rehabilitation, where his Honour said:
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[12]
[10] [2016] VSCA 218 [39] (Weinberg and Osborn JJA).
[11] [2006] VSCA 90 (‘Toomey’).
[12] Toomey [22]. See also DPP v DDJ (2009) 22 VR 444, 454 [40] (Maxwell P, Vincent and Neave JJA) and Pitt (a pseudonym) v The Queen [2020] VSCA 73 [52] (Priest and Weinberg JJA).
Offence seriousness
16Incest is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence[13] and ‘reflects the community’s abhorrence of sexual crimes against children.’[14]
[13] See eg Nguyen v The Queen (2016) 311 FLR 289, 332 [146] (Redlich JA, Tate and Whelan JJA agreeing); Dalgliesh No.1 [126].
[14] Dalgliesh No.1 [78], [123], [126]; DPP v Charlie Dalgliesh (a pseudonym) (2017) 271 A Crim R 1, 16 [75] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh No. 2’).
17Sexual offending by adults against vulnerable children is a ‘most serious blight on society’.[15] The Victorian Court of Appeal, and its predecessor, have emphasised on numerous occasions the harm sexual offending against children causes to the innocent victims and the community at large.[16] In R v Ware,[17] Hedigan AJA (with whom Winneke P and Hayne JA agreed) adopted the earlier statement of Marks J in R v Sposito[18] where his Honour said: ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.’[19]
[15] DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ) (‘Dalgliesh HCA’).
[16] See eg R v Wayland (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3–4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) (‘Sposito’) 4–5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing) (‘Ware’); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing) (‘Wakime’); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH (2004) 10 VR 234, 237–238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing) (‘OJA’); DPP v CPD (2009) 22 VR 533, 546–547[54]–[56] (Maxwell P, Redlich JA and Robson AJA); DDJ 453–54 [36]–[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]–[19] (Maxwell P and Neave JA); Reid (a pseudonym) v The Queen (2014) 42 VR 295, 310 [83] (Priest JA, Maxwell P and Whelan JA agreeing); Sutton (a pseudonym) v The Queen [2015] VSCA 251, [25]–[28] (Maxwell P and Redlich JA).
[17] [1997] 1 VR 647.
[18] Sposito 4.
[19] Ware 648. See also DPP v MJ [2000] VSCA 66 [17] (Phillips CJ, Brooking JA and Hedigan AJA agreeing) (‘MJ’) and Toomey [18]–[19] (Vincent JA).
18Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment.[20] The crime of incest involving a child ‘strikes at the familial roots of civilised society’[21] and ‘has long been regarded as being [a crime] of particular repugnance’.[22]
[20] See eg Wakime 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing).
[21] Ware 653 quoted with approval in MJ [17]; R v GMT [2006] VSCA 13 [20] (Charles JA, Vincent JA and Mandie AJA agreeing) and Dalgliesh (No. 1) [28].
[22] Dalgliesh (No. 2) [66].
19Your offending conduct in relation to both charges is truly abhorrent and involved a flagrant breach of the trust you owed to your young victim who was, in effect, your step-daughter at the time. You abandoned your responsibility to protect the victim, who was young and vulnerable. As the Victorian Court of Appeal observed in DPP v Walsh:[23]
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[24]
[23] [2018] VSCA 172.
[24] Ibid [1] (Maxwell P and McLeish JA) citing Ware 653 and Sutton (a Pseudonym) v The Queen (2015) 47 VR 496, 505 [28] (Maxwell P and Redlich JA).
20Moreover, you committed these crimes in the victim’s home, a place where she was entitled to feel safe, while she was in bed. Your offending is further aggravated by the fact the victim was particularly young, being aged between nine and eleven years. There was also a significant disparity in age between you and your victim.
21In determining an appropriate sentence, I must take into account the objective gravity of your offending conduct as well as your moral culpability for it. As Redlich JA, with whom Chernov and Vincent JJA agreed, observed in DPP v Bright:[25]
The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the sentence will be commensurate with the seriousness of the crime.[26]
[25] (2006) 163 A Crim R 538.
[26] Ibid 543 (citations omitted).
22Your counsel submitted your offending conduct falls below the mid-range for this type of offending. I accept your offending did not occur over a protracted period of time and involves two isolated incidents. There is no evidence of the victim being in any physical pain, nor did you submit your victim to any threats of violence or humiliation. There is also no evidence of any attempt by you to conceal your offending by manipulating, coercing, bribing or endeavouring to silence the victim.[27]
[27]See Crawford (a pseudonym) v The Queen [2018] VSCA 113 [60] (Maxwell P and Kyrou JA).
23Accepting the difficulties inherent in determining what constitutes a ‘mid-range’ example of this offence, I consider your offending conduct in relation to both charges, objectively viewed, to be a mid-range example of this type of offending, but nonetheless serious. Moreover, I consider your moral culpability to be very high.
24Generally, denunciation, general deterrence and just punishment must be given substantial weight in sentencing you for these abhorrent crimes. In your case, these sentencing principles must be sensibly moderated by reason of certain aspects of your personal circumstances which I discuss later.[28]
[28] See below [87]–[91].
Personal circumstances
25You were assessed on 22 December 2023, 22 January 2024 and 16 February 2024 by Rebecca Fakhri, a psychologist engaged by your legal representatives. Ms Fakhri prepared a ‘Confidential Psychological Assessment’ report dated 5 March 2024, which was tendered at the plea hearing by your counsel.[29] Your personal history is summarised in that report.
[29] Ex D2.
General background
26You were born in September 1975 and are currently aged 48 years. You described your upbringing to Ms Fakhri as ‘complex’ and ‘difficult’ as your parents separated when you were very young. Your mother re-partnered with a man named ‘Jack’, whom you consider to be a father figure and whom you refer to as ‘dad’. You eventually reunited with your biological father, Bill, when you were aged 35 years.
27Although you told Ms Fakhri that Jack was a ‘great father’, you noted he was often strict and would physically discipline you when you misbehaved. You also recalled instances where Jack was violent towards your mother, including a time when he chased her with an axe. As a child you feared Jack, but you have grown to respect his parenting style.
28You described your mother as being ‘loving and caring’. You also have an older brother and a younger sister whom you share a close relationship with. Your mother and sister were present at the trial, during the plea hearing and are again present in court today.
29At 16 years of age you began rebelling against your parents, which caused your relationship with them to deteriorate. You left the family home in Ringwood and moved to Tecoma to live with friends, as you felt you needed freedom. You resided there for one year, where you battled poor influences and drug use.
30Eventually, you moved to Upwey with your ex-partner, Kelly,[30] where you were again in a negative environment and surrounded by substance abuse. When she fell pregnant you both relocated to Ferntree Gulley. You remained in a relationship with Kelly until you were 32 years old, when you and she separated and you subsequently returned to Upwey. From 2005 to 2008 you were either renting or sleeping in your car.
[30] A pseudonym.
31From 2008 to 2018 you were in a relationship with Julia, the victim’s mother. You described this time as a period of instability as you and Julia were renting properties in several outer suburbs of Melbourne. From 2018 to 2021 you were single and resided in your car. Over the last 18 months, you returned to your parents’ home to assist in maintaining their large property. Upon release from custody, you intend to reside at their address.
Education and employment history
32You attended Ringwood Primary School for Prep, Knoxville College from Year 1 to Year 5 and Tecoma Primary School for Year 6. You were generally uninterested in learning and found it difficult to stay attentive.
33You commenced secondary school at St Joseph’s College in Ferntree Gully. You reported being sexually assaulted by a priest during this time. You told Ms Fakhri that as a result of your anger and trauma your grades deteriorated and you lacked motivation to engage in learning. You were disruptive in class and decided to change schools at the end of Year 8.
34You had a more ‘hands on’ experience at Box Hill Technical School, where you completed Year 9, and enjoyed the practical learning style. You undertook Year 10 at Ferntree Gully Technical School, but left soon after as this coincided with you leaving the family home.
35When aged 16 years you began a carpentry apprenticeship but failed to complete it. Ms Fakhri reported you were smoking cannabis daily and were ‘unmotivated to work’. You had your first son at the age of 19 and decided to find employment. You worked as a tiler for a slate and stone producer over a two- year period before running your own tiling business.
36You disliked having an employer and preferred to be self-employed. Until you were remanded in 2023, you worked for a range of builders. In Ms Fakhri’s report you are described as self-aggrandising and quoted as saying you are a ‘massively talented man who can do anything’.
37You have used your time whilst on remand profitably. Whilst in custody you have recently obtained a carpentry role in the ‘woodshop’. After the plea hearing, your counsel provided me with several certificates that attest to your successful completion of ten modules of the Atlas Remand Program and the following three programs.[31]
(a) Changing Gears Program, a 12-hour program that explores substance use, identifying risky situations thoughts and feelings, and strategies to minimise harm.
(b) Cannabis and Me Program, a 6-hour program that explores the impacts of cannabis use on yourself and others, harm minimisation strategies and relapse prevention strategies.
(c) Alcohol and Me Program, a 6-hour program that explores short and long-term effects of alcohol use, the differences between use, abuse and dependence, coping strategies, goal setting and strategies to cope and minimise risk.
[31] Ex D7.
Relationship history
38Your first intimate relationship was with an age appropriate female when you were 12 years old, albeit this was of short duration. You commenced your relationship with Kelly when you were 16. You described this relationship as initially positive, however as your substance use increased, you became violent towards her. After 16 years your relationship weakened due to several factors, including your ex partner’s reported alcohol use, her behaviour at social gatherings, infidelity by her and your substance abuse.
39You and Kelly share three children, two sons and a daughter. According to Ms Fakhri’s report your sons have a history of using substances problematically, but you did report your children are ‘stable’ and have ‘steady employment’. Your children are aware of the present charges and you remain in contact with them, although you and your daughter have distanced since you separated with Kelly.
40Towards the end of the relationship, a family violence intervention order (‘FVIO’) was placed against you because Kelly did not want you involved in her life. You denied this was as a result of physical violence, but acknowledged this contributed to her feelings of resentment and dislike for you.
41Following the breakdown of your relationship with Kelly in 2008, you attempted suicide. Your son, Mitchell, found you hanging by a rope and contacted emergency services. You recounted feeling ‘too depressed’ to consider forming another relationship and spent several months at home with thoughts of suicide.
42As I have previously summarised, you were in a relationship with Julia for several years, and resided with her from 2015 to 2016. You and Julia reportedly both used cannabis heavily throughout your time together. Julia had three children from a previous relationship, and you denied having a close relationship with them.
43In 2020, you entered a two-year relationship with Hannah.[32] You described this relationship as ‘drug-fuelled and toxic’. You lived together in Endeavour Hills and would both use methamphetamine and cannabis. There was violence within the relationship, resulting in an FVIO protecting Hannah.
[32] A pseudonym.
44In 2022, you separated from Hannah because you were ‘over the relationship’ and the excessive drug use. You have not entered into an intimate relationship since then.
45Your main support network comprises your parents and siblings and you have some long-term close friends who remain supportive of you. You view your friends as being positive influences.
Mental health
46You told Ms Fakhri you have not previously been diagnosed with any mental illnesses, but admitted to suffering from anxiety since you were a teenager. You reported your ongoing symptoms to include:
(a) fidgeting, including biting your nails;
(b) sleep problems, including experiencing nightmares;
(c) depressive symptoms, including low mood and an inability to feel pleasure.
47Whilst on remand, you have occasionally attended appointments with a psychiatric nurse, citing these sessions as being unhelpful. While you have not been prescribed psychotropic medication to manage your symptoms of anxiety or depression, whilst in custody you have requested medication to assist with sleep. You have been extremely emotional whilst on remand as you miss your family. You deny experiencing ongoing trauma symptoms because you have ‘put it all behind [you]’. You currently ease any feelings of distress with exercise. You have never participated in formal trauma-specific counselling.
48Ms Fakhri administered the Patient Health Questionnaire (PHQ-9), a brief screening tool used to assist in diagnosing depression. Your score indicated you reported severe depressive symptoms in the fortnight preceding the assessment. Ms Fakhri opined this is indicative of a major depressive disorder (’MDD’) but no formal diagnosis was made.
49Ms Fakhri also administered the Generalised Anxiety Disorder Assessment (‘GAD-7’) to measure your symptoms of anxiety. You received a score which, according to Ms Fakhri, indicates you experienced severe anxiety symptoms in the fortnight preceding the assessment and are, therefore, likely to meet the criteria for generalised anxiety disorder (‘GAD’). However, no formal diagnosis was made.
50Ms Fakhri opined the depressive and anxiety symptoms you have experienced throughout your life have been exacerbated by your early exposure to violence in the home. The result of this has been to normalise behaviour within your relationships as an adult.
51You were also asked to complete the Post-Traumatic Stress Disorder Checklist (PCL-5) for the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, text revision (‘DSM-5-TR’) which is a 20-item self-report which assesses the presence and severity of Post-Traumatic Stress Disorder (‘PTSD’) symptoms, and assists in making a provisional or temporary diagnosis of PTSD. You received a total severity score which was indicative of clinically significant PTSD symptoms. Ms Fakhri posited a provisional diagnosis of Complex Post-Traumatic Stress Disorder (‘C-PTSD’), while noting this diagnosis is not currently recognised in the DSM-5-TR.[33]
[33] Although it has been accepted into the International Classification of Diseases, 11th Revision (‘ICD-11’).
52Finally, during your assessment you completed the Adult ADHD Self-Rating Scale (‘ASRS’). The ASRS is an 18-item self-report questionnaire designed to assess Attention Deficit/Hyperactivity Disorder (‘ADHD’) symptoms in adults. Your scores caused Ms Fakhri to consider you are likely to be diagnosed with adult ADHD. If confirmed, Ms Fakhri opines ADHD would explain any experiences of impulsivity, emotional dysregulation, a lack of self-awareness and organisational challenges.
53At the plea hearing, I drew your counsel’s attention to the fact Ms Fakhri’s opinions were predominantly based on preliminary screening tests. Ms Fakhri acknowledged the limitations of these measures, as self-reporting increases the risk of bias and inaccuracy. In particular, the ASRS also fails to account for symptoms that may be a result of substance abuse or other medical issues.
Alcohol and substance abuse
54You have engaged in substance abuse since your mid-teens. Your cannabis use was heavy and consistent, as you were smoking two grams every day on average, until 2018, when you reduced your usage to one gram per day. You then began using speed intravenously and eventually moved to methamphetamine use. Over the last 10 years you have used methamphetamine intravenously every morning ‘to help [you] get through the day’, believing the drug allowed you to feel focused, balanced and alert. On average, you would inject 0.02g of methamphetamine daily and you last used on the day of your arrest.
55Between the ages of 16 and 20, you used lysergic acid diethylamide (‘LSD’) once a week. You believed hallucinogens would allow you to ‘see the world from a different perspective’. You disclosed to Ms Fakhri that you used hallucinogens a week before you were arrested.
56In 2018, following the breakdown of your relationship with Julia, you attended Pinelodge Clinic, a mental health inpatient service. You completed alcohol and other drugs (‘AOD’) counselling whilst there and, upon discharge, attended Narcotics Anonymous (‘NA’) meetings. However, you became ‘bored’ with the meetings and stopped going. Soon after you relapsed into substance abuse.
57During your assessment with Ms Fakhri you undertook the Drug Use Disorders Identification Test (‘DUDIT’). Your score is indicative of a history of severe drug-related problems and places you in the high-risk range for harmful substance use at the time of the offending.
58I accept you have been abstinent from illicit substances while you have been on remand. Your counsel told me this is the first time in 28 years you have been drug free. Since you have ceased using illicit substances, you describe feeling ‘empowered’ as you are able to function without the use of methamphetamines and cannabis. You have also gained 8 kgs in weight. More positively, you are motivated to maintain your abstinence upon your release from custody.
Prior and subsequent criminal history
59Your prior criminal history comprises four appearances between 1993 and 2011. On 10 May 1993, you appeared in the Ringwood Magistrates’ Court in relation to two charges of possession of a drug of dependence, one charge of theft, one charge of being unlawfully on premises and one charge of using a drug of dependence. You were sentenced to a 12 month good behaviour bond without conviction.
60On 9 August 1993, the Ringwood Magistrates’ Court fined you $450, without conviction, for one charge of theft.
61On 29 August 2003, you again appeared in the Ringwood Magistrates’ Court where you were sentenced to a community based order for a period of 12 months in relation to charges of possession of cannabis, cultivating a narcotic plant (cannabis), using cannabis and trafficking cannabis.
62On 8 April 2011, the Heidelberg Magistrates’ Court sentenced you to 3 months’ imprisonment, to be served concurrently with a suspended sentence of 12 months’ imprisonment and an 18-month good behaviour bond, for similar drug-related offences.
63You have no prior convictions or findings of guilt for sexual offences.
64Your counsel acknowledged you also have a number of subsequent convictions. On 16 January 2019, you appeared in the Ringwood Magistrates’ Court on one charge of persistently contravening a family violence intervention order and were convicted and fined $500.
65On 30 May 2019, the Ringwood Magistrates’ Court convicted and sentenced you to an aggregate fine of $750 for two charges of contravening a family violence intervention order and two charges of contravening a conduct condition of bail.
66In November 2022, a community correction order (‘CCO’) was imposed on you in relation to offending which occurred in August and December 2019, August 2020, January 2022 and July 2022. At the plea hearing you were awaiting a contravention hearing in relation to this CCO.
67While subsequent offences cannot be taken into account in the same way as prior criminal history can, they bear upon my assessment of your character and shed light on your risk of recidivism, which is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. They are relevant also to my assessment of your prospects of rehabilitation.[34]
Risk of reoffending
[34] See R v Rumpf [1998] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–11 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v R [2016] VSCA 21 [75], [77–78] (Santamaria JA); R v Pham [2003] VSCA 207 [12] (Vincent JA, Winneke P and Eames JA agreeing); Wilson v The Queen [2022] VSCA 2 [20] (Priest and Niall JJA).
68To assess your risk of sexual reoffending, Ms Fakhri administered the risk for sexual violence protocol (SVR-20 V2). In her opinion you present with a low to moderate risk of sexual reoffending. She opines you present with numerous risk factors including problems with intimidate relationships and relationship breakdowns due to ongoing family violence, major mental health disorder and minimisation and/or denial of offending. Several factors relating to historic risk factors were endorsed, including non-sexual offending, substance use problems, victim of child abuse, historical suicidal ideation and sexual health problems.
69Ms Fakhri reported your risk would be significantly reduced, and your prospects of rehabilitation improved, if interventions were to be focused on improving your mental health, increasing your insight into the offending and addressing your long-standing relationship issues.
70In light of Ms Fakhir’s risk assessment and the nature of your offending conduct, which you continue to deny, I consider I must give significant weight to specific deterrence and protection of the community in sentencing you for these offences.
Character references
71Character references from your mother,[35] sister,[36] brother[37] and a family friend[38] were tendered at the plea hearing.
[35] Ex D3.
[36] Ex D4.
[37] Ex D5.
[38] Ex D6.
72Your mother describes the behaviour constituting your offending as uncharacteristic. She writes you are a ‘devoted man’ to those you love, despite any issues you have faced with your mental health and drug use. She says you have always been a hardworking and caring son. She describes the support you have provided to your family, particularly the way in which you have cared for your grandfather and assisted in the maintenance of the family home. Whilst she acknowledges your shortcomings, she believes they are outweighed by your ‘kind heart and generous nature’. Upon your release from custody, you will live with her at her home.
73Your sister writes she has always felt safe and protected by you. She is aware of your criminal history, however, she believes your offending conduct in this case is out of character. She accepts your drug use has impacted your daily functioning but she is of the opinion you remain a determined individual who is admired by others, and that you have ‘the right ethos and enough education to know that actions like the ones [you have] been charged with, are very wrong’. Your sister intends to continue to support you as she did for the duration of the trial, at the plea hearing and again today.
74Your older brother writes he can attest to your ‘honesty, personal drive and attention to detail in [your] work and personal life’. He recognises various experiences in your life have negatively impacted you but he believes you always have the ‘best of intentions’ for your family and you remain committed to them. He trusts you explicitly and will continue to do so.
75Your friend writes he has witnessed your relationships over the years and the ‘toxic outcomes leading to demise’ but was still ‘completely shocked’ when he heard about the charges. He believes the offending is out of character. He describes you as obliging, generous and committed to your family and friends.
Mitigating circumstances
76There is little that can be put on your behalf in mitigation of penalty. You stood your trial, which was your right, but it means you can receive no discount for pleading guilty. As your counsel fairly advised me, you continue to deny the offending. Accordingly, you lack insight into the reasons for your offending conduct and have demonstrated no remorse.
Application of Verdins principles
77Your counsel submitted Verdins principle 5 is engaged in your case.[39] He accepted no other Verdins principles are engaged in this case. The prosecutor accepted this. To illustrate his submission, your counsel relied upon Ms Fakhri’s opinion that it is likely you suffer from, inter alia, MDD, GAD, C-PTSD and ADHD.
[39] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
78Ms Fakhri made the following finding:
It is noted that imprisonment would likely weigh more heavily on Mr [Conley] than a person without his conditions. In individuals with an MDD, GAD, ADHD and C-PTSD, there is potential for significant mood fluctuation and the volatile nature of the prison environment is likely to further exacerbate his symptom profile and risk of decompensation.
Therefore, the concern with incarceration is that it would place Mr [Conley] at increased risk of further emotional deterioration in view of his low coping resources and mental health history, resulting in him being subject to a substantially and materially greater than ordinary burden.
79On balance, I accept Verdins principle 5 is engaged in your case because the state of your mental health may mean the sentence I impose on you will weigh more heavily on you than it would on a person in normal mental health.
Delay
80Your counsel submitted the effect of delay was a mitigating circumstance in your case. He relied on the following observation of the Victorian Court of Appeal in Tones v The Queen:[40]
It is well established that significant delay between the time that an offender is interviewed by police and the time that charges are laid, and delay between the laying of charges and trial, can be a powerful mitigating factor. There are two limbs to delay. The first limb concerns unfairness to the offender, in the sense that the relevant charge – or the prospect of such a charge – was ‘hanging over’ the accused’s head and caused him or her anxiety (‘unfairness limb’). The second limb concerns whether, during the period of the delay the offender made progress towards rehabilitation and whether there were good prospects of ongoing rehabilitation (‘rehabilitation limb’).[41]
[40] [2017] VSCA 118.
[41] Ibid [36]. See also Rodriguez v DPP (Cth) (2013) 40 VR 436, 445–46 [36] (Warren CJ and Redlich JA).
81Your counsel further illustrated his submission by referring to the Victorian Court of Appeal in Thomas v The Queen,[42] where the Court opined:
Of course, delay can be important in the overall sentencing synthesis. In some cases, it can allow for a significant reduction in sentence. That is particularly so where, as in this case, the applicant was suffering severe anxiety and depression throughout the entire period that elapsed from arrest to sentencing. That stress and anxiety was, no doubt, compounded in his case by uncertainty as to whether he would be imprisoned.[43]
[42] [2019] VSCA 223.
[43] Ibid [66].
82Your counsel submitted rehabilitative and punitive aspects of delay are relevant in your case, but confined the rehabilitation aspect to the fact you have committed no further offences of this type in the meantime.
83I accept there has been some delay between the commission of the present offences which occurred between September 2013 to February 2016, the victim’s report to police in January 2019, your police interview in October 2019, your being charged with these offences on 16 June 2020 and the trial in November 2023. There has been further unavoidable delay, not occasioned by you, between the jury’s verdict in November 2023, the plea hearing in March 2024 and now today’s sentencing.
84There is evidence before me regarding the efforts you have made towards your rehabilitation whilst you have been in custody.[44] This is to be encouraged. However, until you accept you committed the present offences, your rehabilitation regarding the risk of future sexual offending will remain incomplete. I accept you have not reoffended in relation to sexual offences.
[44] See Ex D7 and above [37].
85However, given the nature and seriousness of your offending conduct, your low to moderate risk of sexual reoffending, your continued denial of committing these offences and your consequent lack of insight, I can only adopt a guarded approach to your prospects of rehabilitation. Much will depend on how you respond to any rehabilitative programs offered to you in prison which address your risk of committing sexual offences in the future and the community supports put in place on your release from custody.
86So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a significant sentence of imprisonment hanging over your head. Undoubtedly, this would has caused you anxiety and stress. I take the punitive effects of delay into account in your favour.
Application of Bugmy principles
87Your counsel did not rely on the general principles adumbrated by the High Court of Australia in Bugmy v The Queen[45] as being engaged in your case. However, I consider the fact you suffered a degree of childhood trauma and deprivation, and particularly a sexual assault at the hands of a priest when you were at school, means those principles are engaged to some extent.
[45] (2013) 249 CLR 571 (‘Bugmy’).
88In Marrah v The Queen (‘Marrah’),[46] the Victorian Court of Appeal confirmed the relevance of a disadvantaged background as follows:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. … Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[47]
[46] [2014] VSCA 119 (‘Marrah’).
[47] Marrah [16] (Redlich and Tate JJA) citing Bugmy 586–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
89Importantly, in Marrah the Court held that when sentencing an offender, the court should not consider that an ‘offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment’.[48] Social disadvantage does not ‘diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[49]
[48] Ibid.
[49] Ibid.
90When discussing the Bugmy principles in Newton v The King,[50] the Victorian Court of Appeal said:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[51]
[50] [2023] VSCA 22 (‘Newton’).
[51] Newton [36]–[37] (Beach and Macaulay JJA).
91That Court further observed in DPP v Herrmann:[52]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[53]
[52] [2021] VSCA 160.
[53] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
92In applying the principles in Bugmy, I do not need to find the disadvantage you suffered was ‘profound’. In Sabbatucci v The Queen (‘Sabbatucci’),[54] the Victorian Court of Appeal said that the sentencer must evaluate whether the disadvantage warrants the offender being viewed as ‘less morally blameworthy’ than someone who commits the same offence but does not have the same disadvantaged or deprived background.[55] According to Sabbatucci, coming to this conclusion does not depend on being satisfied that the circumstances establish ‘profound disadvantage’ or ‘profound deprivation’ because in every case, ‘it will be a question of fact and degree’.[56]
[54] [2021] VSCA 340.
[55] Ibid [22] (Maxwell P and Emerton JJA).
[56] Ibid.
93Your counsel did not submit your childhood deprivation is causative of the present offending, thereby reducing your moral culpability. Nonetheless, these complex factors mean I must moderate to some extent the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentence I impose on you. They also inform the weight I give to specific deterrence and protection of the community in your case.
Application of sentencing principles
94I have had regard to current sentencing practice in relation to the offence of incest, as informed by the decisions of the High Court of Australia in R v Kilic[57] and DPP (Vic) v Dalgliesh (a pseudonym)[58] and the Victorian Court of Appeal decision in DPP v Zhuang.[59] In particular, I have had regard to the decisions in Dalgliesh (No 2),[60] Carter v The Queen,[61] Grantley v The Queen[62] and Crawford v The Queen.[63]
[57] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[58] Dalgleish HCA.
[59] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
[60] (2017) 271 A Crim R 1, 15–17 [66]–[75] (Ferguson CJ, Weinberg and Whelan JJA).
[61] (2018) 272 A Crim R 170, 184–9 [65]–[81] (Weinberg, Beach and Hargrave JJA) (‘Carter’).
[62] (2018) 272 A Crim R 340, 345–7 [19]–[26], 347–9 [28]-[34] (Maxwell P and Kyrou JA).
[63] [2018] VSCA 113 (Maxwell P and Kyrou JA).
95I have also had regard to the principles discussed in Stalio v The Queen[64] and the cases referred to me by your counsel.[65] Your counsel accepted these cases may or may not be entirely comparable but he submitted they provide a ‘ball park’ guide.
[64] (2012) 46 VR 426. See also Thrussell v The Queen [2017] VSCA 386 [149]–[151] (Maxwell P, Santamaria JA and Beale AJA); Carter (a pseudonym) v The Queen (2018) 272 A Crim R 170 [53]–[64] (Weinberg, Beach and Hargrave JJA) and Mush v The Queen [2019] VSCA 307 [107]–[110] (Maxwell P and Kaye JA).
[65] DPP v Walters (a pseudonym) (2015) 49 VR 356 (Maxwell P, Redlich, Tate and Priest JJA); DPP v Prentice (a pseudonym) [2017] VCC 759 (Judge M Sexton); DPP v Chester (a pseudonym) [2018] VCC 1713 (Judge Gucciardo); DPP v Houghton (a pseudonym) [2020] VCC 205 (Judge Johns); DPP v Waters (a pseudonym) [2020] VCC 292 (Judge Smallwood); DPP v Douglas (a pseudonym) [2021] VCC 893 (Judge Chambers).
96While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[66]
[66] See Dalgliesh HCA.
97Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of incest and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from ‘comparable cases’, I have sought to do so in your case.
98The basic purposes for which a court may impose a sentence are just punishment, deterrence – both specific and general, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the impact of the offence on the victim, and your personal circumstances.
99I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
100Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences. Moreover, I consider protection of the community and specific deterrence must be given real weight. As I observed earlier, I assess your prospects of rehabilitation as being guarded.
101It was not suggested that anything other than sentences of imprisonment with a non-parole period fixed is called for in this case.
Stand up Mr Conley
On the charge of incest (Charge 1) you are convicted and sentenced to imprisonment for six years.
On the charge of incest (Charge 2) you are convicted and sentenced to imprisonment for six years.
I order that one year of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
This makes a total effective sentence of imprisonment for seven years.
I order you serve a minimum of five years’ imprisonment before being eligible for parole.
I declare 210 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
Pursuant to the provisions of the Sex Offenders Registration Act 2004, I order you comply with the reporting obligations of that Act for life.[67]
[67] See Sex Offenders Registration Act 2004 s 34(1)(c)(i) and Schedule 1, item 1.
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