Director of Public Prosecutions v Conway (a pseudonym)
[2018] VCC 489
•17 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN CONWAY (a Pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 April 2018 | |
DATE OF SENTENCE: | 17 April 2018 | |
CASE MAY BE CITED AS: | DPP v Conway (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 489 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004; Crimes Act 1958
Cases Cited:Davey v R (2007) A Crim R 266; Cameron v R (2002) 209 CLR 339; R v RLP [2009] VSCA 271; O’Brien (a Pseudonym) v R [2014] VSCA 94; DPP v Jones [2016] VCC 1454; DPP v Whitney [2016] VCC 1671
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr T. Hoare | Office of Public Prosecutions |
| For the Accused | Mr J. Williams | Victoria Legal Aid |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the accused, victim and family or witnesses.
HER HONOUR:
1 Brian Conway,[1] you have pleaded guilty to five charges of indecent assault of a girl under 16. The maximum penalty applicable to those offences, which occurred between 1977 and 1981, is five years’ imprisonment.
[1] Brian Conway is a pseudonym.
2 These crimes arise out of events which took place between you and your stepdaughter, Haley Wallace,[2] who was then under 16. It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. Your behaviour was quite obviously unacceptable, and a gross breach of trust.
[2] Haley Wallace is a pseudonym.
3 I turn to a brief summary of your offending.
4 Regarding the charges, the complainant Haley Wallace was born on 3 December 1968 and was between 10 and 12 years of age when your offending occurred. At that time you were approximately 34 to 36 years of age. Haley was your stepdaughter and you had known her since she was 3 years old. You were married to her mother, Denise,[3] who has now passed away.
[3] Denise is a pseudonym.
5 Haley recalled the first time she was indecently assaulted by you. She was living in Healesville with you, her mother, and her three siblings. Her mother worked nights at the Healesville Golf Club and you would look after the children while she was at work.
6 I turn to Charge 1, a representative charge of offending over approximately four years.
7 Haley was outside the family house and you started piggybacking her, she was wearing underpants and pants. You cupped your hands underneath her legs, where her legs met her backside. You carried her underneath the house, placed your hands on top of her underwear and touched her vagina. Haley stated that, "There were other times and it would occur once or twice a week. I cannot recall any more specific times and Brian used the same sort of pattern."
8 You laid her down on her back on the dirt underneath the house, took off her pants and underwear and put them beside her. You then started touching her vagina, and unzipped your pants and pulled out your penis.
9 You grabbed her hand, placed her hand on your penis and had her masturbate you (this is part of the representative charge – Charge 3).
10 Haley said that that did not go on for very long. You then put your penis away and she would get dressed.
11 Another time, while living at the Healesville property with her mother and her three siblings, their mother was working late, you came into her bedroom and knelt down beside her bed. You then put your hand down her pants and into her underpants, touching the outside of her vagina. This forms part of Charge 1, the representative charge.
12 You penetrated Haley’s vagina with your finger over approximately four years (Charge 2, and also a representative charge). She stated, referable to that, “There were other times and it would occur once or twice a week. I cannot recall any more specific times and Brian used the same sort of pattern.” You unzipped your pants, grabbed her hand and put it on your penis, and then used her hand to move your penis backwards and forwards (part of representative Charge 3).
13 Around 1979 to 1980, Haley and her family moved to another address in Healesville. At that house, she and her sister shared a bedroom with you and their mother.
14 When everyone was asleep in bed, you climbed the bunk-bed ladder to where Haley was asleep on the top bunk, placed your hands underneath the blankets and into her underwear, and touched her on the inside of her vagina. You indecently assaulted her by touching the inside and outside of her vagina once or twice a week (this is also represented as part of Charges 1 and 2).
15 Haley’s mother had health problems and was away a lot of the time receiving medical treatment. On one occasion, during the day you and Haley were in the kitchen. You told her to take off her shorts and underwear, which she did, and told her to lay on the kitchen table. She said she did not want to, but you grabbed her by the arm, made her get onto the table and lay down on her back. You then fondled her vagina with your hand. This represented Charge 1.
16 You then put your tongue into her vagina (Charge 4). This was a specific occasion between 1979-1981.
17 In approximately 1981, you moved to another house in Healesville. Her mother was not home very often, due to her health issues, and she also attended Bingo once a week. You, Haley and her half-sister, were home most of the time. Haley had her own bedroom at that house. You came into her bedroom late at night, when everyone else was asleep, and touched her on the vagina (represented in Charge 1), then grabbed her hand and made her touch your penis (represented in Charge 3). Also, you touched her vagina and made her touch your penis at least twice a week at that address.
18 On one occasion, while living at that address, Haley was sitting on a couch with her sister, and her mother on a chair. She had a blanket over her and you sat between she and her sister. You asked to share the blanket with her, which she did, then placed your hand between her legs, over her pyjamas. You were trying to rub her vagina with your hand (Charge 5 is a specific occasion). She kept moving and eventually went into the kitchen.
19 Haley confronted you about the sexual abuse on three occasions in 2013 and 2014. On one of those occasions, you denied it, saying: "I haven’t done anything at all." Further, in 2013 you said to her, "Can't we just bury this and try to be friends?" In 2014 she asked you “Why did you do it?”. You answered, “You asked for it.”
20 Your offending was reported by Haley to police in Queensland on 5 March 2015.
21 On 29 September 2015, she participated in a recorded pretext phone call with you. That exchange is outlined in the prosecution opening (see paragraph 16). Of concern was one of your responses to your offending: “Yeah, but you kept coming on to me”, at a time when I note she was 7 or 8 years of age.
22 You declined to be interviewed by police which of course was your right, as I discussed with your counsel.
23 The victim of your offending, Haley, has suffered considerably as a result of it, and I shall return to pass some remarks on that subject shortly.
24 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial, and witnesses have been spared the need to give evidence upon your trial, and in that regard, in particular, I note she was not required to give evidence.
25 Further, I take into account in your favour, you intimated early your intention to plead guilty to these charges following being charged with them in May 2017. Thereafter discussions occurred between those representing you and the Office of Public Prosecutions to resolve your offending to a suitable indictment. I note a significant delay between November 2015 when you were asked to participate in a record of interview and being charged on 25 May 2017.
26 In the circumstances, I am prepared to accept your plea of guilty indicates some remorse for your offending although I am concerned about the extent of your remorse as I discussed with your counsel, Mr Williams, who conceded that yours was not ‘overwhelming’ remorse.
27 You come to this court without any prior criminal history, nor is there anything subsequent alleged and I am well aware of that.
28 I have been told something of your personal history and circumstances by your counsel, Mr Williams, who appeared on your behalf, and who prepared a helpful written outline of submissions for your plea hearing.
29 At the time of this offending you were, as I have said, between 34 and 36 years of age and at sentence you are 74 years of age.
30 Through Mr Williams, you instructed you wished at the outset of your plea to publicly apologise to Haley for your offending against her.
31 Mr Williams conceded your offending involved a substantial breach of trust, not only of the complainant but also her mother and he is correct. He conceded there was a need for just punishment, denunciation and general deterrence when sentencing you. He is correct.
32 From the outset Mr Williams conceded an immediate term of imprisonment was appropriate for your offending, however, he submitted a partially suspended sentence, or his secondary submission without abandoning his primary submission, a longer non-parole period.
33 Turning to his submissions, Mr Williams relied heavily upon your pleas of guilty to these charges. He submitted your plea had considerable utility in this case. He made that submission notwithstanding acceptance that there had been a number of ‘confrontations’ between you and the complainant at earlier stages, and your responses to those confrontations as set out within the prosecution opening and to which I previously referred. However, from the time you were charged, Mr Williams submitted you had engaged in meaningful discussions through your solicitors with the Office of Public Prosecutions, which had resulted in your pleas of guilty to the charges before me. As previously stated, I accept that was so.
34 He urged, and I accept, no witnesses were required to be cross-examined at a contested committal hearing nor at a trial. He submitted your pleas of guilty were of considerable utility and facilitated the course of justice. I agree.
35 Mr Williams submitted your early pleas of guilty were indicative of some remorse by you as I have previously discussed and that even in the early stages in your discussions with Haley you were not actually denying any of your offending. As I discussed with Mr Williams, you said you had difficulty remembering your offending. Nevertheless you now accept it had occurred.
36 Mr Williams, in his written submissions and orally, stressed your pleas of guilty and referred me to the decisions of to Davey v R[4] and Cameron v R[5]. I agree such is relevant in mitigation of your sentence (see most recently the decision of Carter which I shall come to again in a moment which was handed down I think the day after the plea hearing).
[4](2007) A Crim R 266
[5](2002) 209 CLR 339 [361]
37 Mr Williams also relied on your prior good character, to which I have previously referred also including your good work history.
38 Your age and health difficulties, to which I shall shortly refer, were also relied upon by Mr Williams. In addition, the delay in this matter being determined from the time you were asked to participate in records of interview (November 2015) and being charged on 25 May 2017. I accept in that time you had these offences ‘hanging over your head’ and such has likely caused you significant anxiety.
39 Delay is a relevant sentencing consideration, and I refer to the very recent decision of Carter (a pseudonym) v The Queen[6], handed down subsequent to your plea hearing. In Carter the court referred to Arthars v R[7] (see Carter paragraphs 31, 35, 52 and following). Such principles, in my opinion, apply when sentencing you.
[6] [2018] VSCA 88
[7] (2013) 39 VR 613
40 Mr Williams also relied on you being assessed by Dr Dion Gee, Forensic Psychologist, as being a low risk of sexual re-offending.
41 Mr Williams summarised your personal circumstances and background consistent with his written submissions (Exhibit 1). You were born in England in 1943. Prior to coming to Australia when you were 20 years of age, you were educated in England, leaving school at age 15. You obtained an apprenticeship in cabinetmaking, however prior to completion you obtained employment with a building company as a carpenter’s mate and remained in that work until you migrated to Australia in 1964 to follow a then girlfriend.
42 You initially lived in Melbourne with your girlfriend’s parents and obtained employment with Dunlop Rubber. You married your then girlfriend in 1966 and in that same year your immediate family also moved to Australia. You divorced in 1968.
43 In the 1970s you also worked as a cabinetmaker and in a quarry in Lilydale and other similar places of employment.
44 You met Haley’s mother in the late 1960s or early 1970s and married in 1973 or 1974. Your wife had three children, including Haley, who was then 3 years of age at the time.
45 You then began working as a labourer and driving dump trucks. You worked for David Mitchell Estates until the mid to late 1970s.
46 You took your family to the United Kingdom and lived there for approximately 11 months, but returned to Australia.
47 Your offending occurred after your return to Australia. You purchased a house in Healesville. The first home was in Furbank Road, which you sold in approximately 1979, and then moved to Hanford Street, and then to the milk bar referred to in the prosecution opening. The family then moved to Rosebud.
48 In 1990 you moved to Queensland with your wife, Haley having previously moved to that state approximately 12 months prior. You worked as a cabinetmaker until you went onto a carer’s pension in 1998 to care for your wife. She passed away in July 2002. You have remained in Queensland since.
49 You are 74 years of age at sentence and currently in receipt of the Aged Pension. I gather you have a sister who lives in Melbourne and a brother who lives in England.
50 Approximately two months prior to your plea hearing you underwent an operation for prostate cancer. Previously you had a total knee replacement in 2014. I was also advised that you are prescribed medication. In relation to your medical conditions, a letter was before me from Dr Sunday Ofili dated 3 April 2018, setting out your medical history and current medications. That document was provided to prison authorities on your plea date to assist you with your management in custody when you were remanded at that time.
51 Also placed before me were two reports from Dr Gee. His first report was dated 25 March 2018. I note Mr Williams was not relying upon the contents of either report to support an application of the principles in R v Verdins & Ors[8], and that, in my opinion, was an appropriate concession on the material before me.
[8](2007) 16 VR 269
52 Mr Williams did, however, rely upon your current medical conditions and mental state as matters I could and should take into account in mitigation of your sentence, consistent with general sentencing principles albeit not relying upon Verdins’ principles. I accept such can be taken into account consistent with general sentencing principles in your case, and I do.
53 Whilst not being formally assessed by Dr Gee, he concluded you impressed as a person whose cognitive function was estimated to fall within the average range. You demonstrated reduced insight into your current intervention needs, both mental health and criminogenic. You may require specialist services to enhance your mental health and wellbeing and to gain a better appreciation of your past aberrant behaviour (that is, this offending).
54 Dr Gee said you presented with a reduced understanding of your risk profile, and displayed limited awareness of the nexus between mental state/impaired mental functioning and your risk of any future aberrant behaviour.
55 Dr Gee noted you had difficulty providing specific accounts of your bio/psychosocial development.
56 You advised Dr Gee of your recent contact with your general practitioner, and then being prescribed with the antidepressant Effexor, although you were unclear what that medication was for and why it had been prescribed.
57 You described being in generally good physical health across your life, although approximately two years ago you had a knee replacement. You were currently receiving post-operative care and monitoring for the recent surgery to remove your prostate.
58 Regarding self-reporting of your offending behaviour, your recall of offence-specific details was considerably impaired and you struggled to recall your period of offending and the ‘sexually aberrant conduct’ that constituted the specific offending. You however accepted the accounts of it as provided.
59 You did, however, articulate that your behaviour was wrong and would have had enduring effects on your victim, despite not being able to provide a detailed account of your offending.
60 Turning to your personality and psychopathology, Dr Gee concluded you displayed prominent features of generalised anxiety and preoccupation with feelings of guilt and discouragement. You also had enduring symptoms of depression and symptoms associated with an enduring mood disorder.
61 In summary, Dr Gee concluded you did not currently present with a psychotic illness, you did demonstrate psychopathology suggestive of both generalised anxiety and depressive disorder and continued to display some difficulty effectively regulating cognitive, emotional and behavioural states in a productive manner.
62 You did not currently meet the criteria for a paedophilic disorder. Given your compromised memory/recall of your past behaviour, the lapse of time since this behaviour, and your reduced appreciation of the difficulty ‘unpacking’ the offence process, Dr Gee concluded your past aberrant behaviour was best construed as an unsophisticated attempt at sexual expression/verification and social connectivity.
63 Regarding your risk of future sexual violence, you demonstrated a low risk of re-offending sexually.
64 In a subsequent report prepared by Dr Gee dated 28 March 2018, whilst noting a change of instructions that your offending had occurred over a “shorter period of time” than had previously been stated to him, his overall opinions and conclusions remained the same as in his first report.
65 Regarding your rehabilitation prospects, on all the material and information before me I consider your rehabilitation prospects to be good.
66 Turning to your age, 74, Mr Williams submitted such was relevant and would make your time in custody more difficult than for a younger, less medically unwell prisoner. I discussed in brief with him the relevance of advanced age when sentencing. Such is, of course, a relevant sentencing consideration and in that regard, I note the decision of TRG v R[9] in which Weinberg JA referred to R v RLP[10] and the passage from that judgment of Neave, Redlich JJA and Hollingworth AJA:
[9] [2011] VSCA 337
[10] [2009] VSCA 271
“We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
1. The age and health of an offender are relevant to the exercise of the sentencing discretion.
2. Old age or ill health are not determinative of the quantum of sentence.
3. Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4 It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5. Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6. Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7. Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.” [39]
67 I apply those principles. Sentencing an offender of advanced age, as I discussed with Mr Williams, is also not unusual for historic sexual offences as it can often take some time for a complainant to make an allegation of sexual assault.
68 Turning to the delay between you being asked to participate in records of interview in November 2015 and being charged in May 2017, Mr Williams submitted such had produced anxiety and stress with you being left in a position of uncertainty as to whether or not you would be charged with these offences. I accept, consistent with the authorities that anxiety and stress could result from such delay, as I have previously stated.
69 Whilst Mr Williams accepted that delay in complaining was a common occurrence for sexual offending, and he is correct, he urged that in the intervening thirty-seven-year period approximately, you had not been involved in any further offending and had a productive working life. I am aware of that, and such is a relevant consideration.
70 Mr Williams submitted that there were a number of factors that would mitigate against your risk of committing sexual offences in the future, in particular, having been assessed by Dr Gee as a low risk of sexually re-offending.
71 I turn to the victim impact statement of Haley, which was read by her to the court. Her statement is eloquent, and it is difficult to do justice to that statement in these brief sentencing remarks. In her statement, she said she was confused about what you had done to her sexually. She felt lost and angry. Her schooling was difficult for her. She felt ‘messed up at school’. She had been involved in abusive relationships over the years, feeling like she deserved it, and “they were no different from her stepfather”, that is, you. She was still an emotional and physical wreck. Your offending had affected her all her life. She had been diagnosed with post-traumatic stress disorder and bipolar and takes medication to assist her moods and high anxiety.
72 She always feels sad. Your abuse has taken a big chunk of her life. She had spent approximately twenty years in therapy to work through issues, including your abuse of her.
73 Your offending had pulled the family apart. Each day was a struggle for her. It would not bring back her childhood. I have no doubt your offending has impacted upon Haley in the manner she described.
74 A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[11], in which His Honour Vincent J referred to social rehabilitation citing DPP v DJK[12] (allowing of course for factual differences in those cases to yours):
“With respect to those (victim) statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[11] [2006] VSCA 90
[12] [2003] VSCA 109 [17]-[18]
75 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am of course conscious that I must not allow the effects upon a victim to swamp the sentencing process.
76 Turning to his sentencing submissions, Mr Williams directed me to sentencing statistics in Victoria from 1976 to 1980 for offences such as these and to a number of cases where this type of offending, that is, historic and the nature of it, had previously been dealt with by judges in other sentences, and in particular he referred to R v Stalio[13].
[13] (2002) 46 VR 246
77 Most recently that decision has been considered in Carter, which was published on 11 April 2018, the day after your plea hearing.
78 The court concluded that the decision in Stalio did not require a sentencing court, when sentencing occurs after a substantial lapse of time from the offending, to sentence in accordance with prevailing sentencing practices at the time of the offending. Stalio requires that regard can be had to sentencing practices at the time for the purpose of ascertaining just punishment in accordance with the principle of equal justice. The weight to be given to this factor, in any given case, would depend upon its own circumstances which would usually involve more than simply the lapse of time (see Carter, paras 55-56 and also 57-59 and 62).
79 As I discussed with Mr Williams, while current sentencing statistics do, of course, have their place within the sentencing process, there is a lot of information not contained within them which no doubt impacted upon the sentences imposed, including whether Verdins principles applied when sentencing the particular offender, whether the offender had any prior convictions or any subsequent relevant offending relevant to rehabilitation prospects, whether issues of parity arose, whether charges were ‘rolled-up’ or ‘representative’. Comparing cases factually is also very difficult, as facts vary enormously case to case, as do all matters in mitigation of sentence and personal to an offender. I note Mr Williams directed me to DPP v Jones[14] and DPP v Whitney[15], which I have read.
[14][2016] VCC 1454
[15][2016] VCC 1671
80 The difficulties in such comparisons are apparent from those two cases. In brief, to name a few differences in Jones, whilst two charges were representative the number of acts alleged in each were significantly less than that before me. There had also been a contested committal. The offender was 65 years of age at time of sentence.
81 In Whitney each charge involved a single act (i.e. not representative) and there were two complainants. That offender was 84 years of age at sentence.
82 I also discussed with Mr Williams the decision of The Queen v RHMcL[16] when sentencing serious sex offenders pursuant to s.6E Sentencing Act 1991. This is relevant to the issue of totality and has been recently discussed in DPP v Hopson[17] and Matheas v The Queen[18].
[16] (2003) CLR 452
[17] [2016] VSCA 303 [48]-[52]
[18] [2017] VSCA 330 [46]-[50]
83 Whilst the principle of totality has relevance when sentencing on such charges, in Matheas, Tate JA referred to Gordon v The Queen[19] and DPP v Bales[20] (where s.6E is enlivened):
“… there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s.6E, that is, full effect is not to be given to the totality principle as though s.6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purpose …” Matheas [50]
[19] [2013] VSCA 343
[20] [2015] VSCA 261
84 I also discussed with Mr Williams the decision of R v SBL[21] referrable to sentencing on Charges 1, 2 and 3, representative charges.
[21] (1999) 1 VR 706, p726
85 SBL has been considered in more recent authorities including Brown v The Queen[22], DPP v EB[23] and DPP v HPW[24].
[22] [2015] VSCA 274 [72]-[79]
[23] (2008) 186 A Crim R [314], [318]
[24] (2011) VSCA 85 [24]-[26]
86 Turning to the Sex Offenders Registration Act, Charges 2 and 4 on the Indictment before me involving penetration, although at the time that offending occurred such acts did not constitute a penetrative offence. Pursuant to clause 13(2), Schedule 1 of the Sex Offenders Registration Act 2004, they are to be dealt with as Class 1 offences. Charges 1, 3 and 5 are Class 2 offences. Registration is, therefore, mandatory, given the age of the complainant at the time of those offences, and the reporting period is life.
87 Mr Williams agreed such classification and duration applied to you.
88 Turning to the serious sex offender provisions (s.6E), following terms of imprisonment being imposed on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3, 4 and 5. I note the prosecution did not urge a disproportionate sentence and I am of the opinion I am able to appropriately sentence you without the need to impose a disproportionate sentence.
89 Sex offending against children is regarded very seriously by the courts and was conceded by Mr Williams. There is a long list of authorities from the Court of Appeal confirming just that point, including R v WEF[25], DPP v H[26], and allowing for different offences from yours, DPP v G[27] referrable to “those in loco parentis” (see also Dalgliesh No. 1[28]). This list is by no means exhaustive.
[25] [1998] 2 VR 385
[26] (2004) 10 VR 234
[27] [2002] VSCA 6
[28] [2016] VSCA 148 [83]
90 Mr Williams submitted that taking into account all sentencing considerations I could sentence you to a term of imprisonment and partially suspend that sentence. Should I consider a head sentence and non-parole period be the only appropriate disposition, which I note was his secondary submission, without abandoning his primary submission, I should impose a short non-parole period.
91 Mr Hoare, for the prosecution, referred me correctly to the aggravating features of your offending involving the breach of trust not only of Haley but her mother. His ultimate submission on sentence was a sentence of less than three years’ imprisonment would be ‘of concern’, no further defined.
92 As well as matters personal to you, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence which is of considerable importance in a case such as this.
93 There is also an element of specific deterrence relevant when sentencing you, as whilst I am aware you do not have any prior criminal history or indeed anything subsequent, your offending did occur on multiple occasions and over a significant period of time.
94 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted in that regard by your lack of subsequent offending and also the opinion of Dr Gee you are a low risk of sexually re-offending.
95 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
96 In sentencing you I am aware also you have not previously served a term of imprisonment. I also take into account the principle of totality (to the extent to which I have previously referred when I mentioned that issue of totality), also mindful of the offending occurring in Charges 1, 2 and 3 occurred mostly at the same time in the same incident.
97 I sentence you as follows.
98 On Charge 1, you are convicted and sentenced to 20 months’ imprisonment.
99 On Charge 2, you are convicted and sentenced to 2 years’ imprisonment.
100 On Charge 3, you are convicted and sentenced to 20 months’ imprisonment.
101 On Charge 4, you are convicted and sentenced to 12 months’ imprisonment.
102 On Charge 5, you are convicted and sentenced to 10 months’ imprisonment.
103 I direct the following regarding cumulation and concurrency so counsel will note the way I express this is because after Charge 3, or 3, 4 and 5, this is being sentenced as a serious sexual offender so please note the different way I word this.
104 I direct that Charge 2 is the base sentence.
105 I direct that 8 months of Charge 1 be served cumulatively upon Charge 2.
106 I direct that 12 months of Charge 3 be served concurrently and 8 months cumulatively upon Charge 2.
107 I direct that 7 months of Charge 4 be served concurrently and 5 months cumulatively upon Charge 2.
108 I direct that 7 months of Charge 5 be served concurrently and 3 months cumulatively upon Charge 2.
109 For clarity, the orders for cumulation are upon each other and upon the base sentence.
110 That should result in a total effective sentence of 4 years' imprisonment and I direct you serve a period of 2 years and 4 months before you are eligible for parole.
111 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, in other words, if you had pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 6 years, and set a non-parole period of 4 years.
112 You are also, as I have said, subject to the Sex Offenders Registration Act 2004 for life, and such is mandatory.
113 Turning to s18(4) Sentencing Act 1991, I declare you have spent 8 days in custody by way of pre-sentence detention and I direct that that be entered into the records of the court.
114 As I have said, you are also subject to the Sex Offender Registration Act 2004 for life and such is mandatory. In a moment my associate Ms Jackson will approach you and ask you to sign acknowledging receipt of documents that tell you about that Act. You are not being asked if you want to be on the Register, I have made that order. Rather you are just acknowledging receipt of the paperwork.
115 Pursuant to s.6F Sentencing Act 1991, I repeat and declare you have been sentenced as a serious sexual offender on Charges 3, 4 and 5 on the indictment, and direct that be entered into the records of the court.
116 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. That was not opposed by counsel on your behalf and I make the order in the terms sought based on the seriousness of your offending. It will be for a saliva sample, and I must advise you the authorities may use reasonable force in order to obtain that sample.
117 Any other orders?
118 MR HOARE: No.
119 HER HONOUR: No, right, now the sentence, did you get it?
120 MR HOARE: Yes, four years total effective sentence.
121 HER HONOUR: Four years, and you've got the individual ones on each of the charges, did you, and the orders for cumulation?
122 MR HOARE: I did, Your Honour, and I - in my assessment - or I've checked the maths - - -
123 HER HONOUR: No, I was just - I just want to check that it adds up, that's all.
124 MR HOARE: - - - I've got it, I've checked the maths, it adds up.
125 HER HONOUR: I'm not asking if you agree with it.
126 MR HOARE: No, I'm saying in my assessment of the addition.
127 HER HONOUR: That's all I'm after. It adds up.
128 MR HOARE: Adds up. Adds up correctly to four years.
129 HER HONOUR: Good, excellent. All right, Mr Williams, do you agree that it adds up whether or not you like them?
130 MR WILLIAMS: My mathematics say the same as yours, Your Honour.
131 HER HONOUR: Excellent. Any other orders?
132 MR HOARE: No, Your Honour.
133 HER HONOUR: No. Any other matters before Mr Conway is removed from the court?
134 MR WILLIAMS: No, Your Honour.
135 HER HONOUR: Yes, yes, Ms Jackson has to as I've said serve on him - he doesn't have - if he doesn't want to sign for them, I understand that, but she has to do her job. She'll take - if you can go back with him if you want to, just telling him that he's being asked to sign acknowledgement of the paperwork for the Sex Offender Registration Act. He's not being asked if he agrees with the sentence, I'm not interested in that.
136 MR WILLIAMS: Your Honour, may I be excused? I have to attend another court at 10.30 - - -
137 HER HONOUR: Sure, your instructor can do that, absolutely, off you go, thanks for that. You're excused.
138 MR WILLIAMS: My instructor can do that. Thank you, Your Honour.
139 HER HONOUR: There you go, hand them to the Crown. Yes, that's all right, Mr Butler. All right, thanks, Mr Conway, you may leave the court, thank you very much.
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