Director of Public Prosecutions v Crampton (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT GEELONG

and at MelboURNE
CRIMINAL DIVISION

THE DIRECTOR OF PUBLIC PROSECUTIONS

CRISTOPHER CRAMPTON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Geelong (Trial) Plea (Melbourne)
DATE OF HEARING:	Trial: verdict 12 May 2022; Plea: 25 July & 5 Sept 2022
DATE OF SENTENCE:	9 September 2022
CASE MAY BE CITED AS:	DPP v Crampton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1498

REASONS FOR SENTENCE

Catchwords: Trial - Guilty verdicts - Indecent act x 5; Sex pen of child under 16 x1 (aggravated circumstances; child under 12) - 2 victims: Grandnieces of the prisoner who was living with the family at the time - 5 incidents - Impact of COVID-19 – poor physical health/limited life expectancy.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore (at Sentence) Ms F. Coppini (at Plea)	Office of Public Prosecutions
For the Accused	Ms J. Munster and Mr H. Moodie	Victoria Legal Aid

HIS HONOUR:

Christopher Crampton[1], as you know, on 12 May of this year, after a relatively short trial, you were convicted by a jury of five charges of indecent act with a child under 16 years of age and one charge of sexual penetration of a child under the age of 16. The prosecution alleged as a feature of aggravation that the child the subject of the sexual penetration charge was under the age of 12 at the time and the jury was satisfied of that beyond reasonable doubt. You were acquitted of Charge 4, which was another charge of sexual penetration.
[1] A pseudonym
All the matters for which you have been found guilty were committed upon or against your grandnieces, being Sarah Harmon[2] (Charges 1, 2, 3 and 5) and Megan Harmon[3] (Charges 6-7). The offences occurred in their family home in Whittington.
[2] A pseudonym
[3] A pseudonym
Sarah’s date of birth is in 2002 and so she was between 10 and 13 years of age. Megan was younger, her date is in 2004. She was aged between 8 and 11 and she also had a mild intellectual disability. As I have indicated, you were their great uncle. Their maternal grandmother is your sister.
You had moved to Geelong from Mildura in 2012 to live with your sister, so with the girls' grandmother. Later that year you had a falling out with your sister, it would seem, and moved in to live with Sarah and Megan’s mother, your niece, Terri Davis[4]. Ms Davis lived with her seven children and you lived there until around 2015. Your offending came to light after Sarah’s diary was discovered by her older sister. At around the same time, though quite independently of that discovery, Megan had complained to a friend and to one of her sisters.
[4] A pseudonym
I see no need to set out slabs of the transcript from the special hearing or from the earlier VARE which has been conducted with each child. The amended summary of prosecution opening for the trial dated 4 May 2022 adequately sets out a precis of the evidence upon which you have been convicted in that it replicates the material from the two VAREs conducted in early 2020 and the special hearings conducted in June 2021. Plainly the jury have accepted the account of the victims.
What follows then is but a short summary of the offending.
After refusing to give your phone back, Sarah described how you put your hands down under her clothing and rubbed the outside of her vagina before penetrating her vagina with your fingers. She was 10. (Charges 1 and 2).
The second occasion related to the kitchen incident where you pinned her against the wall and touched her on the outside of the vagina. (Charge 3). You were acquitted of the related penetration charge.
The final occasion occurred in the lounge room and she tried to move away from you as you started touching her legs. She was pinned down and you started playing with her vagina, touching and rubbing that area on the outside of the clothes on that occasion. (Charge 5)
As indicated Sarah made some diary notes and the discovery of them was led at the trial. So too disclosures that she made to Nora Vega,[5] who I must say I single out for praise for the level of support that she went on to provide to Sarah. Those disclosures took place many years after the event, so in 2019 or thereabouts. The diary was found by one of Sarah’s sisters in I believe February of 2020.
[5] A pseudonym
As to Megan, she was still in primary school when you touched her. It was in the loungeroom, and you started touching her legs and she moved away. She ultimately moved away again and she then moved behind the couch, and there you put your hand under her shorts and underwear and touched her on the outside of the vagina with your fingers. (Charge 6). The next occasion was in the kitchen and on this occasion you grabbed her hand and put it on your penis and got her to masturbate you. She tried to push you away but you became more aggressive and grabbed her hand tighter. (Charge 7). The act ended with her pushing you over into the oven.
She disclosed your conduct to some of her friends it would seem in 2019 and to one of her sisters in March 2020, and her mother, Terri Davis, also got wind of it as well.
The matter was reported to the Geelong SOCIT in March 2020. A VARE was then conducted with each of the victims.
You denied any wrong doing in your police interview which was conducted in that same year.
You were not called at trial. Of course the girls both were, with special hearings conducted well in advance of the empanelment in front of another Judge in June 2021.
Plainly enough the jury have accepted that each was telling the truth. The acquittal on Charge 4 is easily explicable given the uncertainties that had been raised by Sarah as to actual penetration in relation to that charge, and the arguments addressed to the jury on that topic by your counsel. There is no inconsistency of verdict. There was in fact some conflict between what she had said in her VARE and what she had said at the special hearing, and perhaps a failure to have fully re-examined on that topic to clarify the issue. I should say Mr Moore did not prosecute at the special hearing.
The jury asked a question about the structure of the vagina and then another question on the second day of deliberations as to whether penetration would be constituted by putting a hand on top of the vagina. Well, they were directed by me that it would not. They were satisfied beyond reasonable doubt of the indecent act, but not as to penetration on that occasion, that much is clear.
I see no need then to set out any more of the evidence which was led in support of these charges. As I say, each victim gave evidence consistently with the way the summary of prosecution opening had set out the allegations.
The matters for which you have been convicted are no longer allegations. They are now proven offences. I must sentence in a manner consistent with the jury's verdict. Additionally, for any factual matter or finding which would aggravate the matter, I must be satisfied of the matter beyond reasonable doubt.
What is very plain is that your conduct impacted upon many relationships. The day that the girls’ mother and father attended at your sister’s house to remonstrate with you was the last day there was any meaningful contact by that side of the family with your sister. As I say, she was the grandmother of these children and the mother of Terri Davis, so relationships were in large part terminated owing to your conduct and your sister’s professed belief in your innocence and the understandable conflict that created with her daughter, the girls’ mother.
You are 56 years of age and have a long enough criminal history.
The offence of indecent act with a child under 16 years of age carries a 10-year maximum prison term, sexual penetration in circumstances as here where the jury was satisfied beyond reasonable doubt that the victim was under 12 years of age has a 25 year maximum term of imprisonment.
Impact
There are two victim impact statements in this case. I will soon move on to discuss the various matters in mitigation raised on the plea on your behalf. However, of course I am sentencing you for these serious crimes committed upon your great nieces, crimes that have had an obvious and sizeable impact upon each of them. Each of those impact statements was read aloud by the trial prosecutor, Mr Moore. Sarah is now 20 years old. She speaks of her anger and anxiety and the counselling she has received over the years. She speaks of the very sizeable impact your crimes have caused in virtually every aspect of her life.
Megan is now 18 years old. She has felt overwhelmed by the whole experience. She has suffered anxiety and found it very difficult to talk about these matters. That is understandable. She felt she might actually upset people by disclosing your conduct. Your crimes have had an impact on her ability to form relationships. She views herself differently and has a sense of low self-esteem. Again, the impacts have been sizeable.
I do not let the impact of these crimes swamp the many other sentencing considerations which I am obliged to take into account. I have to guard against that and of course I do. But I am obliged to take into account the impact of your crimes. It has been large and that is conceded by your counsel.
In Mitigation
Ms Munster and Mr Moodie conducted the very thorough plea on your behalf. They had prepared an outline of written submissions dated 20 July. They relied upon a report from a psychologist, Mr Cummins, and a raft of other documents dealing with your poor physical health, as well as a personal reference from your ex-partner. They relied also on a later set of written filed sentencing submissions. They were filed on the morning of the resumed plea earlier this week, as well as another medical report, this time one dated from 2018.
Either by direct oral submission or by reference to the documentary materials, your counsel took me to your personal and family background, including details of your educational and employment history. They detailed your relationship history and the very significant health issues that you labour under presently.
They made some submissions as to the objective gravity of the offending and matters of sentencing principle at play in this case. Also, as to your prospects of rehabilitation.
They relied upon the following matters in mitigation primarily:
·     An increased burden and risk of deterioration in your mental state arising from the conditions spoken of in the report of Mr Cummins (so Verdins[6] limbs 2, 5 and 6);
·     The impact of the serious physical health conditions upon your custodial burden and the likelihood of worsening of your health in custody and limited life expectancy.
·     Finally, the COVID 19 increased prison burden they said applied in your case.
[6]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
They conceded this was serious offending, ordinarily punishable by a term of imprisonment, but argued that some mercy might be extended to you given your poor health and the material touching upon your limited life expectancy. They argued that if prison was warranted for the various indecent acts, that any prison term could be wholly suspended. The sexual penetration charge was in a different position. It was unmistakably the most serious of the charges but could not as a matter of law be the subject of a suspended sentence. That is because it was one of those offences listed in the relevant version of the Sentencing Act 1991 as a 'serious offence', and hence was not amenable to any order suspending a prison term, either wholly or in part. They argued that a community corrections order might be open for that offence and in fact the others as well.
The thrust of the submission was that in any way it could be achieved, you ought not be immediately imprisoned. Not for one day. It was a very ambitious submission given the nature of the charges, the relationship with the victims, and the fact that you did not have at your disposal the very sizeable sentencing benefits that apply to a remorseful person pleading guilty at an early point, especially amidst the global pandemic. None of those things applied here. There is no remorse. That is not a matter in aggravation, it is just the absence of a matter in mitigation that sometimes exists.
Prosecution
Unsurprisingly, the Director of Public Prosecutions was calling for an immediate prison term. Mr Moore, who prosecuted in the trial and at the plea, accepted that you were plainly in poor health, but submitted that the offending was just too serious to be dealt with by a community corrections order or any other disposition shy of an immediate prison term, with a head sentence and non-parole period. He spelt out the reasons why that was so including the age of the victims, the breach of trust involved, and the nature of the actual crimes themselves. The Director through Mr Moore conceded that your medical predicament would increase your burden of imprisonment and must be taken into account in mitigation, but this could not save you from prison, even though specific deterrence could be, they said, significantly moderated here.
I am not bound by sentencing submissions made by either party as to the penalty in this case. I must reach my own view as to the appropriate sentence here.
Just a brief footnote as to why it is that I am sentencing you on 9 September for crimes of which you were found guilty in May of this year. I normally sentence quite swiftly. I have not here obviously. The reason why I am sentencing you so long after the verdict is because of successful adjournment applications made on your behalf to obtain relevant plea materials.
On the day of verdict in May, I was told by your counsel that there was a need to obtain materials relating to your medical predicament. The case was adjourned to

25 July. On that date, again there was a defence application to adjourn the plea. There had been no success in obtaining satisfactory updated medical materials and also I was told you had missed an appointment with Mr Cummins. I adjourned the case to 5 September.
On each occasion I extended your bail but stressed that you should take no comfort from that occurring. Might I say it is plain from what Ms Munster has said on a number of occasions, including earlier this week, that significant steps have been taken to enable them to place before me the relevant detail of your medical issues, as well as the way they may be managed in a prison setting.
Ms Munster read out portions of correspondence addressed to Corrections and their responses. You will recall that being read out in the course of the plea on Monday. I do not want you to think I have been critical of them. I have not. It is plain to me that they, and for that matter your solicitor, Ms Foley, have done what they needed to do to place the Court in the best possible position to assess your medical predicament. It was a critical part of the plea, as was made clear on Monday, and the fact that it has taken time to do it is neither here nor there.
I will return in one moment to discuss the various submissions made on your behalf, but I will turn firstly and pretty briefly to your background.
Background
You are 56 years of age. You were born in September 1965, so turn 57 soon. You have no memories of your father but pretty unpleasant memories of much of your life as a child with your stepfather. It was a violent and abusive setting. You had five siblings. Evidently your mother had some mental health issues and you spent a large part of your childhood in various boy’s homes moving on to Turana and Malmsbury Youth Training Centres, as they were then described. See paragraph 20 of

Mr Cummins' report. Schooling was fragmented and there is doubt as to whether you even completed Year 7. You have a pretty bare level of literacy.
You had five sons with your partner, Lorene Cannon[7], though the two of you are not still together. You are close to your sons. One attended at Court on Circuit and another attended on the day of the resumed plea on Monday of this week and in fact joins the hearing again today remotely. There are also stepchildren and again one attended remotely to support you earlier this week and one is doing that again today.
[7] A pseudonym.
You have been on benefits for over 20 years. You had very serious health issues as a relatively young man, ultimately losing your right leg and part of your left foot when you were around 30 years of age, and then a couple of decades later being diagnosed with cancer. I will deal with the health issues a bit later in my reasons. Ms Cannon’s letter is of relevance to my task. You have been leading a pretty sad and quiet life and that theme is picked up in some of the other materials. You are described by

Mr Cummins as being a little bit 'pathetic' actually. You have issues with alcohol and cannabis. You seem to have given up on life from statements that are referred to in those materials.
Your counsel told me about some of your criminal history in the Children’s Court. Well, she was free to do that and Mr Cummins reported on other matters that had obviously come before the Children’s Court leading into terms of detention at Youth Training Centres, but of course those matters are not formal prior criminal history before me. Your formal criminal history is not particularly relevant to my task. You served the various sentences and do not fall to be sentenced a second time by me for any of that past conduct. Whilst a lengthy enough history going back to 1982, there are no matters of any similarity to these, and there are decent gaps along the way. I note also that your last appearance was in 2009.
I have mentioned your personal background. It was it would seem a pretty abusive and unsettled environment with probably little by way of good role models in your life. It was to my way of thinking an unenviable background.
An offender’s circumstances and their experience during their own childhood and formative years must be considered in the sentencing process, not just out of some historical curiosity, but because the effects of social disadvantage just do not diminish with time. They are likely to have profound and lasting consequences, and in some cases, they can actually explain, but not excuse, the offending. They do not do that here by the way.
Taking lifelong damage that is the result of childhood exposure to violence or sexual or physical abuse or neglect into account when sentencing is really the mark of a humane society. It is no answer to say that those events occurred all those years ago when you were just a child. The effects of these things do not just diminish with the passage of time. They do actually leave their mark. You had an unenviable early life in my view. That was not your fault. It might explain a fair bit about the trajectory of your life, though the later health issues have had a large role to play as well.
It will always be matter of what weight to attribute to evidence of a significantly disadvantaged background. Disadvantage will not attract the same weight in every case or in the same way. Sometimes it might lead to a substantial reduction in moral culpability and also a sizeable reduction in the weight to be given to general and specific deterrence. That is not the position in this case. Sometimes it might be enough to take it into account in a general way without any of these sizeable reductions. Broadly that is what your counsel was asking me to do but not even in a Bugmy[8] sense. That name, Bugmy, is the name of a principal case in this area.
[8]Bugmy v The Queen [2013] HCA 37; 249 CLR 571
The proper approach will always be determined by the nature of the evidence. It will depend on the nature and extent of the disadvantage, the nexus if any, with the offending, (though none is required) but also the nature of the crimes and the relative importance in a particular case of sentencing considerations including deterrence, community protection and rehabilitation. See the case of Terrick.[9] It does not all flow in one direction either. It can even lead in some cases to a finding of a greater need for community protection.
[9]DPP v Terrick [2009] VSCA 220

I do take into account your background in a mitigatory fashion. Whilst your counsel seemed to explicitly disavow herself of any reliance on these Bugmyprinciples, that was mainly due I think to the absence of any expert opinion or comprehensive documented evidence of that background. I do not think I need that detail here in this case. What I do know of your background is in my view able to be taken into account in a Bugmy fashion. In that sense I am giving full weight to your background here.
COVID-19
Let me deal with the impact of COVID-19. I have no doubt that during the course of the global pandemic, prison has been a more stressful place for prisoners. Prisoners have not had access to visits or the full range of courses. There have been some periods of quarantine or lockdown. Of course, you have not been subject to any of this, as you have been on bail until Monday afternoon. So my focus in this case is more as to what lies ahead in the future.
On that score it really impossible for me to gauge what lies ahead on the COVID front for prisoners. I cannot guess about that. Things have looked up since March of this year in a prison setting. From about that point, visits resumed. However, it is not back to normal in prisons, I accept that.
Those whose job it is to run the prisons will be able to reflect on the impact of any past or ongoing limitations on a case-by-case basis. They would have the power to address any increased burden in your actual case by way of conferring emergency management days upon you. I cannot know if that will take place or not. I do not proceed on the assumption it will. I am prohibited from that style of speculation.
It is clear to me though that we are not beyond the impacts of this virus. I know that there are snap lockdowns and periods of quarantine from time to time. You are in prison now and presumably in quarantine for a number of days. It seems possible there might be some ongoing prison issues connected to COVID-19 in the next several months, things that will then increase the burden of custody, things that will leave prisoners wondering what lies ahead. I also take that into account in mitigation.
I also do take into account in your case the worry you will have about contracting the virus and that risk in a prison setting. You are not in good health at all and will have no real autonomy over your movements and ability to isolate from others and no doubt will be worried about this. So I take into account the submissions made by your counsel as to the increased burden arising from COVID-19.
Increased burden: Physical health
I also take into account the parlous state of your physical health. I do not need to guess about that. That does not involve speculation. You have been and still are seriously unwell. That is unlikely to change for the better. It is more likely of course to head in the other direction. Now your counsel read out the various emails sent to Corrections and their replies. It really was not really being submitted that you cannot be appropriately treated and even medicated in prison, but there is no doubt in my mind that you are in very poor health, and your very poor health will add to your burden and in my view, not in some minor fashion.
Whilst, no doubt Justice Health would say that there is the equivalence of healthcare offered in a prison setting, the reality might be less pleasing than that I suspect. I am not suggesting it is a simple business moving from a GP and various specialists with whom you have a relationship to an entirely different setting. It is plainly not as easy for you.
I am not going to set out chapter and verse the various health issues or the submissions made as to them. The documents before me set them out. See paragraph 17-20 and the reports of Dr Tandiono, Dr Taylor, Dr Fox and Professor Martin. Also at paragraph 13 of the more recent submissions filed earlier this week. These are not minor issues. You have an amputation of your right leg below the knee, a partial amputation of the left foot and have undergone extensive oral surgery and reconstruction following a diagnosis of throat cancer in 2018.
You have pancreatitis. You have trouble swallowing and use a feeding tube and also had a licence to use morphine. You have a form of wasting disease as well that is referred to. It remains to be seen how your pain management will be met. It is plain enough that you feel pretty hopeless about your position and you have not been taking the steps that need to be taken to prolong your life.
Professor Martin’s report is pretty clear on that topic. You were still, at least prior to the entry back into custody, drinking eight to 10 cans of beer a day. You seem to be rushing headlong to oblivion. You have pretty much given up, or had at the time of many of those reports, and you think you will not have long to live and you may very well be right according to Dr Fox, your GP. He provides an estimate of your life expectancy. That is what it is of course, an estimate.
You are clearly in very poor health and I must and do pay significant regard to that fact. There is that material touching upon your limited life expectancy in the report of Dr Fox, and of course that is also relevant. He has not provided the estimate of your life expectancy in a non-custodial setting. Strangely, one of the fears expressed by Professor Martin, a palliative care specialist, is the removal of the calorie content represented by all the beers you should not even be drinking, and that this will lead to a loss of weight upon receipt into custody where of course beer will not be available. As I say then, it is plain enough from the materials that in a non-custodial setting you have hardly been striving to protect your health and increase your life expectancy. There is, as I say, an aspect of giving up.
All of this medical material must bear upon the severity of the effect of incarceration.
Your ill health is however no justification for the imposition of an inappropriate sentence.
It is clear from the case law that in an appropriate case, the age or ill health of an offender does not and cannot militate against the imposition of a significant period of imprisonment, even one which may leave no expectation at all of any life beyond prison. Here your poor health is a matter of real significance to my task. A person in your state of health would commence any term of imprisonment with a very sizable risk that by virtue of your conditions, you may very well not see life beyond a prison setting. I do not ignore that. It is an important consideration, but it cannot overwhelm other sentencing considerations.
I must not overlook other important sentencing purposes, including denunciation, just punishment and general deterrence. I give appropriate attention to your poor health and limited life expectancy, but confidence in the administration of justice has to be maintained by the imposition of sentences which adequately reflect the gravity of your crimes.
I take into account your ill health as a matter of real significance. I am sure that because of your poor health and gloomy prognosis, if for no other reason, you also have a low risk of re-offence. Specific deterrence can in that sense be moderated significantly. I also consider it appropriate that general deterrence surrenders at least some ground to the exercise of mercy in this case. But general deterrence is still a relevant consideration. I do not lose sight of the fact that you may very well die in prison. Of course, I hope that you do not. I hope that you take steps to prolong your life. I take into account the impact of your ill health in the manner contemplated by your counsel. See paragraphs 13(a), (b) and (c).
But these very unhappy considerations that I am discussing are the inevitable consequence of a person of your age and ill health falling now to be sentenced for undoubtedly serious crimes committed upon these two children in the past. I take your age and ill health into account insofar as I am able to in accordance with the case law in this area.
Rehabilitation
I turn then to your prospects of rehabilitation. You are 56 years of age with no relevant prior convictions at all and nothing since. I am dealing with you for events occurring some years ago, but I am doing that knowing that those acts were not themselves isolated or occurring on a single day, and also in the knowledge that there were sexual offences committed upon two children, not one. It can hardly be said, and it was not said, that the offending was out of character or isolated at that time. It was not.
You deny the offending. You deny any sexual interest in children. Mr Cummins suggests that at that time you would have met the diagnostic criteria of paedophilia. He says you are a low-moderate risk of reoffending sexually. He mentions educational programs and treatment, but recognises the issues presented by your current stance. You would be a very reluctant participant. It is hard to see how counselling will greatly assist you, given your denial of any offending.
I would hope that the time you will spend in the future undergoing this sentence will serve to deter you to a degree. Your physical conditions will surely also have a large role to play. Should you emerge from prison in the future, you will be older obviously, and in poorer health one would expect. I also note the letter from your ex-partner speaking of the way you had not dealt inappropriately with any of your own children. There is some risk of reoffence. That much is plain. There always is really. It is not an illusory risk, as Mr Cummins makes clear.
Upon your ultimate release, you will be required to report any contact with children under the Sex Offender Registration Act and that will be for the rest of your life.
I note also that there is no suggestion of any repetition of offending in the years since this offending. That delay and your ongoing rehabilitation in the course of it is relevant to my assessments. See paragraph 23 of the defence submissions.
I believe that ultimately you have quite reasonable prospects of rehabilitation.
Delay
I have mentioned the delay a moment ago and the fact that you have stayed out of trouble. I have had regard to your ongoing good behaviour in the time since these offences occurred.
Delay is however not at all unusual in this sort of matter. It is a product of the crime and the age of the victims and the relationship to the victims and the reticence of victims, especially where family members, to speak out.
Whilst I do factor in delay and ongoing good behaviour in my assessments of your prospects or rehabilitation, I do not regard it as the powerful factor spoken of in your counsel’s initial written submissions at paragraph 23. Indeed, I believe there was some retreat from that submission in the course of the plea. Delay was not being pressed as a matter of any great importance here. Your state of health was really the prime focus on the plea.
Verdins
There were some submissions made as to the application of the second, the fifth and the sixth limbs from the well-known case of Verdins. That is a decision of our Court of Appeal dealing with the impact upon the sentencing process of mental health conditions existing either at the time of offending or sentence or both. That is something of a gross simplification of those principles, but it suffices for present purposes. There was ultimately a pretty flimsy or scanty basis for the Verdins submissions in this case. Your counsel accepted that to be true. The report of

Mr Cummins speaks of your being moderately depressed. See paragraph 43. He then diagnoses you with cannabis use disorder and alcohol use disorder. Also, a major depressive disorder which has been recurrent and evidently has some connection to some of your medical issues in the past. That is hardly surprising. The materials spell out your level of focus on the outcome of this hearing and how this has affected you. Professor Martin mentions that as well.
The Verdin’s argument rests on that diagnosis which is in part historical and what is contained in paragraph 55 of the report: ‘Prison will be more onerous by virtue of your various physical medical problems and your mental health problems’. He then goes on to speculate about things that might or might not arise. He should not do that, and he mentions your opinion of the likely deterioration in your mental health if not prescribed opiates. Well I am not that interested in your opinion on that topic. Mr Cummins expressed no opinion as to any serious risk of significant deterioration and it is yet to be seen if you will be prescribed painkillers and which.
Your counsel retreated to a large degree from the submissions as to the application of the 6^th limb from that case and made it very clear that the 5^th limb was not a powerful matter on the plea. She argued there should only be some small allowance made. Well, I do not ignore the medical issues. I have already spoken of the mitigatory effect of them, but they do not give rise to Verdins considerations. They no doubt play into your depressed state.
There is nothing in the opinion of Mr Cummins which in any way enlivens the 6^th limb of Verdins and only very scant support for any limb 5 reduction. I give that limb only very limited weight in the circumstances. Much greater weight is, as I say, given to the physical health issues and limited life expectancy on a non Verdins basis. As to limb 2, the mental health issue is not a matter of any great significance in terms of the type of disposition selected.
The Offences
I turn now to the offences. I see no need to set out all the detail again. I have described the acts and the setting. You were invited into this home by the children’s mother. She trusted you. So did her partner. You breached that trust in offending as you did. You used your great nieces as sexual playthings, and in doing so totally betrayed that trust and perverted those relationships. The impact has been large indeed, as is conceded.
Sexual offences against children are viewed seriously by the courts. These offences before me are not like the crime of incest, which has built into it the aggravation posed by the family relationship and breach of trust arising in such a setting. Sexual penetration of a child and indecent act with a child are in a quite different setting. Not every such crime occurs in a setting of breach of trust. These ones all did, and that breach of trust was significant, as is conceded. You were their grandmother’s brother and were trusted to live in this house where you were offered accommodation. You were a guest in this house. What it amounts to is this; the girls’ mother, Terri, stepped in to assist you and to offer you a home. You have abused two of her daughters.
Your counsel in her submissions dealt with the matters of aggravation as well as matters of aggravation that were absent in this case. See paragraphs 24(a)-(h) in the original submissions. She speaks of the differences in age and the nature of the relationship and breach of trust and the nature of the acts as well as the impact.
I accept that Charges 1 and 2 occurred in the same episode, that the sexual penetration Charge 2 involved digital penetration and in that sense did not carry with it the risk of pregnancy or disease. I was not impressed by the submission that the finger did not go all the way in. It went in, that is rather the point, into Sarah's most intimate physical area and that act constituted sexual penetration. She was 10 years old. Your counsel clarified though that she was not raising the degree of penetration as somehow being a matter in mitigation, but rather was merely stating the evidence. As to the submission made as to the brevity of the acts, the short answer is that if they were sustained acts, I would deal with them as such. They were not.
I accept there are some features of aggravation absent here, for instance the absence of threatening words or inducements or overt violence. There was some level of physical control in the sense of the girls describing being pinned down or marshalled by you (see Charge 3 and 5 and 6), and the escalation of aggression described in relation to the masturbation incident covered by Charge 7, where you grabbed her hand more tightly. I do accept however that there was no overt or direct physical violence over and above the touching itself.
The absence of some features of aggravation though is not somehow to be turned into a matter in mitigation. It is not. It is not the best way for me to assess the seriousness of these crimes. What I must do is look at these actual crimes and the matters present to assess their level of seriousness. Here I have the age of the victims. I have the relationship. I have your position within the house and the breach of trust. I have the actual acts. I have the number of acts and the extent of the impact. In Megan’s case I have the existence of an intellectual disability. These are serious offences, the most serious being Charge 2 sexual penetration of Sarah when she was 10 years old.
As I have said, you do not have at your disposal the very large mitigatory considerations which arise in some other cases, for instance a guilty plea and the presence of remorse. That does not exist here.
Purposes
I am required to consider a number of matters, including the nature and the gravity of offending, the impact of the crimes and the maximum penalties. I have to also consider a number of purposes of sentencing. Rehabilitation is one of the purposes of sentencing. I have already indicated my views on that score.
I must take into account the other purposes of sentencing, including specific and general deterrence, protection of the community, denunciation and punishment.
You must be punished justly and proportionately. Punishment is an important purpose of sentencing for these sorts of crimes.
I must also denounce your conduct. That is also of importance. This sexual conduct in relation to your great nieces must be strongly denounced and I do denounce it. You should be ashamed of yourself. Regrettably, you are not.
There are other relevant sentencing purposes here, I have mentioned them, amongst them deterrence, both general and specific.
I must consider the need to deter you from offending in the future. That principle which is known by us lawyers as specific deterrence has a role to play here owing to the nature of this offending. Here though I have the delay and the absence of any conduct in the period of that delay, and in fact, the absence of any relevant past or subsequent history. No doubt specific deterrence would have a far greater role to play if you had a relevant history of such offending. You do not, so there can be some significant moderation of that purpose. I believe your poor health also has a role to play in significantly reducing future risk. It seems to me then that specific deterrence drops away very significantly in this sentencing task.
As to general deterrence, though that is a different proposition altogether. That is still an important consideration in this sort of case. This principle relates to the need to deter other offenders. It is an important purpose of sentencing for this sort of offending. The courts must send a loud message to other individuals in the community who might be minded to commit sexual offences against children. Sexual offences against children are abhorrent and they must be actively discouraged by the sentences imposed by the courts. A loud message must be sent to those who might consider engaging in the sort of conduct that you engaged in. General deterrence is an important sentencing purpose in this case and that much is conceded by your counsel. See paragraph 26. I have spoken of some moderation arising from your health predicament, but it is still an important sentencing purpose in this case.
I must also seek to protect the community from you. For the reasons I have announced a moment ago when dealing with reduction in the weight given to specific deterrence in this case, the weight to give to community protection would also normally drop away quite significantly here, so owing to your age and absence of any criminal history of note and your very poor health.

However, community protection is elevated to the principal purpose of sentencing from the time of the third sentence if by then you fall to be sentenced as a serious sexual offender. That is dependent on the nature of the sentence imposed on Charges 1 and 2. For those matters where you happen to be dealt with as a Serious Sexual Offender, under s6D(a) of the Sentencing Act 1991 that spells out the paramountcy of community protection
Current Sentencing Practice
I must take into account current sentencing practices, and I do. They are not a controlling factor; they are only one of a large range of matters which I must take into account. They will never dictate the actual sentencing outcome. I have looked at the online statistics for both offences. I have looked at the Judicial College of Victoria sentencing manual for examples of sentences imposed for these crimes.
Statistics do not drive my task and there is enough case law spelling out the inherent limitations of statistical material.
That is because there are always differing aggravating and mitigatory considerations, always differing durations, differing impacts, differing ages of offenders and of victims and differing acts. No two cases are ever the same.
No amount of looking at statistics or even other sentencing outcomes in other cases can ever provide the answer to the correct exercise of my sentencing discretion in this case.
As I have said, I have to take into account the maximum penalties. I am required to. You do not fall to be sentenced under the Standard Sentencing Scheme which came into play for offences committed after 1 February 2018. That scheme has no role to play in my sentencing task. It does not inform my task at all.
I dealt earlier with the submissions made as to the gravity of the offending. I am sure one can always construct a more serious example of a hypothetical crime. Crimes have differing aggravating features. Offenders have different backgrounds. One can almost always envisage a worse case of any crime, including crimes of sexual penetration upon a child or indecent act with a child. That is not the best way to judge the seriousness of the actual crimes before the Court. That is because the absence of some aggravating features says very little indeed about the seriousness of the actual offences before the Court, especially where the crimes before the court have their own aggravating features present, as these crimes plainly do. See the case of Harlow[10].
[10]Harlow v The Queen [2017] VSCA 234
Viewed objectively, yours was plainly serious offending. That much is accepted by your counsel.
Totality
I take into account the principle of totality of sentence, and I have engaged in a last look at the sentences imposed by the court, and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you, and to ensure that the overall effect is commensurate with your overall criminality. Your criminality was high.
I have the serious offender provisions within the Sentencing Act which come into play for every sentence I am about to impose from the third sentence. That is because I believe I have no option other than to imprison you here. The ramifications are that I may impose a disproportionate sentence to achieve that goal, pursuant to s6D(b). I make clear I certainly will not be doing that in this case.
As I said earlier, I am required by these serious offender provisions to treat the protection of the community as the principal purpose of sentencing for those matters where you are to be sentenced as a serious sexual offender. I cannot just ignore that provision.
In the absence of a direction otherwise, for those sentences imposed where you are a serious sexual offender, the sentences would be served cumulatively upon each other as the presumption of concurrency is quite deliberately removed. Totality, though modified by these provisions, is still an important consideration. I do not ignore those serious sexual offender provisions, but what sentence is required to protect the community will necessarily depend upon my assessment of the risks that you present. (see R v RNT[11]). I do not believe they are large here so apply that provision in light of that assessment.
[11][2009] VSCA 137 at [16]
Plainly, there is a strong relationship between the acts covered by

Charges 1 and 2 committed upon Sarah. They occurred on the same occasion. So they are part of that one tight episode. That is not to say that such acts occurring in such a setting would always be deserving of complete concurrency. They were each serious separate criminal acts, but were committed almost seamlessly and it is not one of those cases where there are likely to be separate impacts from the act the subject of Charge 1 over and above the impact caused by the more serious conduct the subject of Charge 2 when you penetrated her. Charge 3 and 5 occurred on quite separate occasions to the same victim. There is no temporal relationship at all. Charges 6 and 7 occurred on different occasions again, this time with a totally different victim, being Megan.
So I have five different episodes of offending. I have two different victims with separate sizeable impacts caused upon each.
Your counsel were urging the Court not to lock you up immediately. That is what it boiled down to.
They argued that if prison was required, then prison terms could be imposed on the indecent act charges and such terms could then be wholly suspended. That in such a setting you could be placed on a community corrections order for what was the most serious offence. Either that was an option or perhaps there could even be a community corrections order for all of the offences. They argued that such a merciful outcome was open here owing purely to your very serious health predicament.
Prison is a disposition of last resort. If I thought a standalone community corrections order could achieve the various purposes of sentencing, then of course I would be prohibited from moving further up the sentencing hierarchy. That is because a Court can never impose a more severe sentence than is required to achieve the various purposes of sentencing.
It is plain to me that a standalone community corrections order could not possibly achieve the various purposes of sentencing in this case, nor one even in combination with a prison term, given the limitations existing as to the length of that prison term and the absence of any pre-sentence detention of any note to call upon. A standalone order would in my view be simply a derisory outcome for what is undoubtedly serious sexual offending. Such an outcome would pay inadequate regard to general deterrence, punishment and denunciation. I must impose a prison term, that much is very clear to me, and a combination sentence is not realistic given the absence of any pre-sentence detention other than the four days that have been accumulated since Monday, and the limitations to the duration of the prison component of any combination type order.
It is equally clear that in the circumstances it is not open in the sound exercise of my sentencing discretion to suspend the prison sentences either wholly or in part. That is the absolute legal position in relation to Charge 2. Suspension of that sentence is not even a theoretical option as that is what is described as a 'serious offence' under the old Sentencing Act regime and it cannot be the subject of an order suspending the whole or part of that sentence.
Now suspended sentences have been abolished some years ago, but given the date of your offending, they are still potentially available, at least for the indecent act charges, but only if a court is satisfied it is desirable to do so in the circumstances. So only if the old Sentencing Act s27 provisions are met. They are not met here. Even if a sentence of less than three years was open to me, it would be unthinkable that it could be wholly suspended in the circumstances of this case, given the nature of the conduct and the fact of the sentencing following a trial verdict.
Such an outcome would pay inadequate regard to the need to denounce, punish and deter. It would pay inadequate regard to the gravity of the offending. There would also of course be the issue of the sentence imposed on the most serious charge which could not be suspended at all. All of this though becomes academic. It is plain to me that a sentence of greater than three years is required here, and as such there is not even any ability to consider suspension either wholly or in part. That arises by virtue of the old s27(2A) of the Sentencing Act.
Sentence
I move now then to pass sentence. I am sorry it has taken so long to get to this point. Before doing though so I want to make it clear that I do not expect these individual sentences, the head sentence or the non-parole period which I am about to pass, to be cited back to me or other judges in this Court as the sorts of sentencing outcomes generally available for this sort of offending after a trial verdict. They are not. There is however the significant moderation brought about by your serious medical predicament. That is a weighty factor in my task. But for that I can tell you, the individual and overall sentences and non-parole period would all be a good deal longer than that which will soon be pronounced by me.
Let me deal with the individual sentences now:
·     On Charge 1, indecent act, I convict and sentence you to 20 months' imprisonment.
·     On Charge 2, sexual penetration of a child under 12, a crime with a maximum penalty of 25 years' imprisonment, you are convicted and sentenced to 2 years 10 months' imprisonment. That is the base sentence.
From this point, you now fall to be sentenced as a serious sexual offender.
·     On Charge 3, indecent act, you are convicted and sentenced to 20 months' imprisonment.
·     On Charge 5, indecent act, the last of the indecent acts committed upon Sarah, I convict and sentence you to 15 months' imprisonment.
Up to this point of course the sentences relate to conduct targeting Sarah.
·     On Charge 6, indecent act upon Megan, I convict and sentence you to
2 years' imprisonment
·     On Charge 7, indecent act upon Megan, I also convict and sentence you to 2 years' imprisonment.
The base sentence is therefore the 2 years 10 months imposed on Charge 2.
Cumulation/concurrency
I have decided that there should be complete concurrency in relation to the sentence imposed on Charge 1 in all the circumstances, for the reasons I have announced. That sentence will be served concurrently with all other sentences including the base sentence imposed on Charge 2.
Extent to which I otherwise direct concurrency (s6E)
I now have to set out the extent to which I otherwise direct concurrency under the provisions of s.6E of the Sentencing Act. I apologise if this is confusing to you or others. I will explain what it all means towards the end of these reasons. I direct that
·     16 months of the sentence imposed on Charge 3; (+4 mths)
·     11 months of the sentence imposed on Charge 5;
·     19 months of the sentence imposed on Charge 6 ; and
·     19 months of the sentence imposed on Charge 7;
are be served concurrently upon the base sentence and the other part concurrent sentences.
It follows then that under s6E of the Sentencing Act, I have otherwise directed concurrency to that extent. It is my intention then that there be that additional

18 months cumulation on top of that base sentence that I have pronounced.
Total Effective Sentence
These orders by my calculations result in a total effective sentence of 52 months or 4 years and 4 months imprisonment.
Non-Parole Period
I must fix a non-parole period, but can make no assumptions as to whether or not you will be released on parole. In fact I must not even consider that issue. However, I will fix a non-parole period which will allow the Adult Parole Board to consider your early release. I direct that you serve a period of 2 years before becoming eligible for release on parole.
Section 18 - Pre-Sentence Detention
You have spent 4 days in custody in relation to this matter and that period is declared under the relevant provisions of s18 of the Sentencing Act.
Serious Sexual Offender
I have sentenced you as a serious sexual offender on Charges 3, 5, 6, and 7 and that fact is also to be noted in the records of the court.
Disposal order
An application is made pursuant to the provisions of s78 of the Confiscations Act for forfeiture of the items referred to in the schedule, and this relates to the diary of Sarah and the note written by Sarah. Obviously they would need to be preserved by the Crown for a significant period for obvious reasons.
I have signed that order. I have announced it in abbreviated fashion and I am satisfied the relevant criteria under s78 are made out. I direct the forfeiture of that property, and I direct that it be managed and handled in the way mentioned in the actual formal signed order.
I must say there would need to be caution exhibited in terms of that. I know there is a period of grace in terms of appeal proceedings, but as we know from time to time appeals can be made out of time, if not significantly out of time, and I think there should be a caution exhibited in terms of the destruction of any evidentiary materials such as that, but anyway, I have said what I have said on that score.
Sex Offender Registration
You have been sentenced by me, Mr Crampton, in relation to what are described as one Class 1 offence and four Class 2 offences (as Charges 1 and 2 occurred at the same time) under the Sex Offender Registration Act2004. It is agreed that this triggers an obligation for you to report under the Sex Offenders Registration Act 2004.
Upon your release from custody, you must comply with your reporting and other obligations under that Act for the rest of your life.
I have to advise you about the nature of your obligations under the

Sex Offenders Registration Act
in the sense of providing a document to you. If you were physically in court I would have your counsel come down and speak to you in the circumstances and explain what it is I was asking you to do, which is simply to sign an acknowledgement of the fact that you have received the details of your obligations.
Ms Munster, you have seen these forms before, it is a very lengthy document. I have already signed it and all I am doing here is having it provided for him - a copy of it is in that room with him. I am providing it for him to sign to acknowledge that he has received those explanations of his responsibilities under that Act.
As you will know, the Act imposes a number of conditions upon him. They are serious matters and they include impediments to future employment in a number of areas. That will not be an issue I would not have thought, impediments to his future contact with children and the need to report any contact in a timely fashion, and he will need to familiarise himself with those matters as any breach of the Act or his obligations under that Act is a very serious criminal offence punishable often enough by a significant term of imprisonment.
No one could ever sit where he is sitting and read that document from start to finish and understand it. That is not the purpose of what we are now doing. He is simply being asked to acknowledge by his signature that he has received that notification under that Act and that is what I will be asking him to sign.
Do you need to speak to your client about that? He has heard me say all those things. I am going to ask him in a moment to simply sign that acknowledgment and have it witnessed by the officer there. Are you content for me to do that?
MS MUNSTER: Yes, I am, Your Honour.
HIS HONOUR: So you have heard all that. There is nothing untoward. I know it is not routine for someone to sign something they have not actually read, Mr Crampton, but all you are doing is signing to acknowledge that you have received that document. So if you would now sign that document please and I will have it witnessed by the prison officer as well, thank you.
Thank you, that has been signed and witnessed. Let me just see if there is anything else I need to deal with. Any other matters then from you, Ms Coppini?
MS COPPINI: No, Your Honour.
HIS HONOUR: Anything from you, Ms Munster, or not?
MS MUNSTER: No, Your Honour.
HIS HONOUR: We have got the link for a little bit longer. I think we have got it until 12 o'clock. Are you wanting to utilise it, Ms Munster, to speak to your client? You will need to talk to him about what has occurred and his rights in relation to at least this sentence and beyond that obviously. Do you want to use the link?
MS MUNSTER: Yes, I would be grateful, Your Honour, because it has not been possible to make contact with him since Monday.
HIS HONOUR: That is no problem. We will make you the host so it will be a private meeting with your client and you can speak to him. Whether you need a longer one or not you will make a judgment about that. I will revise these reasons as soon as I have them back from VGRS.
I normally do it within a day of getting them, but sometimes there is a bit of delay in getting them back, but as soon as they are returned from VGRS I will revise them and they will be available to the parties, so if there is nothing else from either of you then?
MS COPPINI: No, Your Honour.
MS MUNSTER: No, thank you, Your Honour.
HIS HONOUR: Thank you. Mr Crampton, stay put there and you can have a private conference with Ms Munster.
MS MUNSTER: And with Ms Foley, thank you, Your Honour.
HIS HONOUR: I will adjourn the court, thank you.

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[2022] VCC 1498

9 September 2022