Director of Public Prosecutions v Davis
[2016] VCC 998
•21 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO and MELBOURNE
CRIMINAL JURISDICTIONCR 16-00183
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEITH DAVIS (pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial dates 10-24 May 2016. Plea-20 June 2016 |
| DATE OF SENTENCE: | 21 July 2016 |
| CASE MAY BE CITED AS: | DPP v Davis |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 998 |
REASONS FOR SENTENCE
---Subject: Incest
Sentence: 12 years imprisonment with a non parole period of 8.
Sentenced as a Serious Sexual Offender---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For Accused Davis | Mr A. Patton |
HIS HONOUR:
1In sentencing you I will refer to you by the pseudonym Keith Davis. That is done in an endeavour to protect the identity of your victims who are your son and the daughter of your former de facto partner.
2After two separate trials in the County Court at Bendigo, you have been found guilty of four charges of incest and one charge of committing an indecent act with or in the presence of a child under the age of 16 years.
3The maximum sentence for the crime of incest is 25 years' imprisonment. The maximum sentence for the crime of committing an indecent act is ten years' imprisonment.
4The first trial proceeded on the charges contained in indictment F12195865.2. The charges on this indictment relate to offending alleged to have been committed by you where your natural son was the victim. The jury acquitted you on Charge 1, which alleged a charge of incest between 1 January 2010 and
19 March 2012. You were also acquitted on Charge 2 which alleged the commission of an indecent act in the presence of your son between
1 January 2010 and 1 December 2013.5Charge 3 alleged the commission of an indecent act in the presence of your son between 1 December 2013 and 11 June 2015. The indecent act alleged was that you put a vibrator into your anus in the presence of your son. The jury convicted you of this charge.
6Charge 4 was a charge of incest alleged to have occurred between
1 December 2013 and 11 June 2015. The act of incest alleged was that you introduced your penis into the mouth of your son. The jury convicted you of this charge.7Charge 5 was also a charge of incest alleged to have occurred on
12 June 2015. The act of incest alleged was that you introduced your penis into the mouth of your son. The jury convicted you of this charge.8Your son, who was the complainant in these charges, was born on 20March 2004. In respect of Charges 3 and 4 therefore he was aged between nine and 11 years when the offending occurred. He was aged 11 when the offending in Charge 5 occurred.
9The trial on these charges was short. It commenced before the jury on 12 May and concluded after about three days of evidence on 17 May.
10The second trial proceeded on the charges contained in indictment F12195865.1. The charges on this indictment related to offending alleged to have been committed by you where your de facto partner’s daughter was the victim. The incest charges were brought pursuant to s.44(2) of the Crimes Act 1958.
11The complainant in these charges was born on 16 April 1992.
12Charge 1 on the second indictment alleged incest by the introduction of your penis into the mouth of the complainant between 21 April 2002 and
31 December 2003. The complainant was aged between ten and 11 years of age when this offending occurred.13Charge 2 on second indictment alleged that you introduced your penis into the vagina of the complainant whilst engaging in a course of conduct with her between 21 April 2002 (complainant aged ten) and 15 April 2010 (the day before the complainant’s 18 birthday).
14The prosecution lead evidence from the complainant that you continued to engage in sexual intercourse with her on a regular basis from the time she was aged about 10 until June 2015, by which time she was aged 23. This evidence was led to demonstrate to the jury the sexual relationship that had developed between you and the complainant from the time that she was aged ten until the time the conduct ceased when she was aged 23. It was also led to put the crime charged in Charge 2 into context.
15The crime of incest alleged in Charge 3 was an alternative charge to that alleged in Charge 2. Because the jury returned a verdict of guilty on Charge 2, a verdict was not taken on this charge.
16You cannot be punished for going to trial on these charges. That is your right. However, in sentencing you, you cannot expect a reduction in sentence that normally would follow had you pleaded guilty to the charges.
17You have always protested your innocence. You strongly denied the charges when interviewed by the police. The relevant parts of your recorded interview with police were shown to each jury.
18Your denials were most unconvincing and contrasted starkly with the evidence given by your son and stepdaughter, each of whom gave evidence in a calm, straight forward and convincing manner. You have not shown any remorse for your offending. The only hint of remorse is for the predicament you now find yourself in, having been convicted by two juries in separate trials.
19I turn to discuss the circumstances of your offending in relation to the charges in the first trial where your natural son is the complainant.
20In 2001 the mother of both children lived across the road from you. That is how you met her and a relationship commenced. In August of that year you moved in and commenced living with her and her daughter. Two children were eventually born of the relationship, both boys. The elder was born on
21 April 2002 and the younger, who is the complainant in the first trial, was born on 20 March 2004.21When you first moved in with the complainants’ mother you all lived at an address in Eaglehawk. In 2008-09 the family moved to an address in California Gully. In 2010-11 the family again moved to an address in Long Gully and then, in about December 2013, to an address in Sailors Gully. Each of these places is a suburb of Bendigo. The evidence about the various addresses was given by your former partner and is not controversial.
22The complainant gave evidence in chief in the form of a Video Audio Recorded Evidence (VARE) which was conducted on Sunday 14 June 2015. This was two days after the offending alleged in Charge 5. The video of the VARE was shown to the jury who also saw your son being cross-examined in a special hearing where his evidence in cross-examination and re-examination was pre-recorded in the court, absent a jury, on 12 May 2016. The charge dates for the offences alleged in the indictment are referenced to the times when you lived in the various houses. At p.212 of the depositions, being the transcript of the VARE, your son gave evidence of the addresses of the various houses that he has lived in.
23In relation to Charge 3, committing an indecent act by the inserting of a vibrator into your anus in the presence of your son, he gave evidence about this in the VARE and transcribed from about p.193 of the depositions. Your son gave evidence that you showed him a vibrator shaped like a penis whilst the two of you were in the bedroom. He called it a “buzzer thing”. The vibrator, which was found in your bedroom, was produced into evidence. Your son said that you told him to "put it in his butt". He said he "felt really weird and uncomfortable" and refused. He said he "wanted to go outside and play with his brother". He actually described the vibrator.
24At p.199 of the depositions which contains the relevant transcript from the VARE, your son described how in his presence you put the vibrator into your anus whilst it was turned on and vibrating. He said "it vibrated in your butt and it made him feel unwell". He said you were on the bed in front of him.
25In relation to Charge 4 incest, your son gave evidence in the VARE, described at p.202 of the depositions, that at the new house at Sailors Gully you asked him to suck your penis in the bedroom of the house. He said he did so for 25 minutes, after which you ejaculated onto the carpet. He then left the room and went into the lounge room. He said that whilst your penis was in his mouth you were bouncing which made him feel weird and uncomfortable.
26Charge 5 was a similar charge. Your son gave evidence recorded on the VARE, commencing in the transcript in the depositions at the bottom of p.212, where he describes the last occasion you put your penis into his mouth, which he said had occurred on Friday 12 June 2015. He said you wanted him to suck your testicles but he refused and you put your penis into his mouth. This continued until you ejaculated onto the carpet near the door of the bedroom. Your son said that whilst he was sucking your penis he "felt really uncomfortable and sick and he wanted to vomit".
27He later drew a diagram showing the position on the floor of the bedroom where you had ejaculated. Inspection by investigators located the place on the carpet where you ejaculated and DNA evidence proved that you had indeed ejaculated at the place described by your son.
28On the evidence that was led from your son the prosecution case was indeed strong. In cross-examination it was put to your son that he had made up the whole story and that you did not do any of the things to him of a sexual nature that he had alleged. He rejected what was put. In my view he was a very convincing witness and the jury would have had little difficulty accepting his evidence. The jury was right to acquit you on the first two of the charges. At the time of these alleged offences your son was very young and his recollection of events on matters so long ago was not as convincing as it was for the latter charges. The jury obviously entertained a doubt. Your offending in Charge 5 had occurred two days before the VARE and so was fresh in the memory of your son.
29I turn to the offending that relates to your convictions on two charges of incest with your stepdaughter, the subject of the second trial.
30The complainant gave evidence before the jury from a remote witness facility of the first occasion you did something sexual to her was when the family was living at the Eaglehawk address. This evidence constitutes Charge 1 on the indictment.
31She said you took her into the bedroom whilst her mother was away. You sat her down on the bed and pulled your pants down. Whilst standing in front of her you put your penis into her mouth. She said she tried to pull away from you but you had hold of her shoulders. She could not remember if you ejaculated or not. You told her not to tell anyone. Transcript pp.69 to 70.
32Thereafter the complainant gave evidence that that was the start of sexual activity that occurred between she and you over many years up until she was aged 23. She too went to the police in mid-June 2015. She said the last occasion of sexual activity between her and you was a week before going to the police, transcript p.71. Of course any sexual acts between the two of you that were consensual after the complainant turned 18 are not and, cannot be, the subject of charges. As I said earlier, this evidence was led as context and relationship evidence.
33Charge 2 is a charge of penile-vaginal incest as a course of conduct between 21 April 2002 and 15 April 2010. The complainant gave evidence you commenced to have penile-vaginal sex with her whilst the family lived in the Eaglehawk house when she was aged around ten. She said once it commenced to occur it would take place sometimes daily in some weeks and, in some weeks it may not occur at all, depending on whether her mother was around. She said this occurred in the same way right up until she was aged 23. She said she did not have sex with you when she had her period, which she said commenced when she was about 13.
34The complainant said you had sexual intercourse with her which usually occurred in the parent’s bedroom of the house, but it also happened when she went with you to work either at the stadium on the stairs or in the women's toilets. She said on each occasion you would enter her vagina from behind, without a condom and you would ejaculate into clothing. She said she would lie on her stomach so that she would not have to face you whilst having sex. She said you would ask her if she wanted a bit and she would say yes to please you or she would say she had her period in which event you would leave her alone. The jury could have been left in no doubt from the compelling evidence of the complainant that from the time she was aged around ten until she turned 18, you were having penile vaginal sex with her on a very regular basis. They cannot have had any difficulty in concluding that you had engaged in sexual intercourse with your stepdaughter on a course of conduct basis during the dates alleged.
35Section 5(2F) of the Sentencing Act 1991 (“the Act”) provides that in sentencing you on a course of conduct charge, I must impose a sentence that reflects the totality of offending that constitutes the course of conduct and I must not impose a sentence on that charge that exceeds the maximum penalty prescribed for a single offence, which as I said earlier is 25 years imprisonment. A note to the relevant section in the Act provides that where, as here, an offender falls to be sentenced after a jury has found you guilty on a course of conduct charge, then I as the sentencing judge must determine the course of conduct in which you engaged and sentence you on that basis.
36I accept the evidence of the complainant proves beyond reasonable doubt that you commenced having penile-vaginal intercourse with her from when she was aged around ten until 18 and that you did so on a regular basis, sometimes daily during the course of a week and in some weeks you did not, depending on where the complainant’s mother was. But you regularly had sex with her over an eight year period.
37Your offending was revealed on Friday 12 June 2015 which is the day of Charge 5 on the first indictment, when you last offended against your son. The offending came to light when your other son told a woman who was a friend of the family what he had seen you doing to your son, who is the complainant. She then asked your son, who is the complainant, what had occurred. He told her that you had been putting your penis into his mouth and the last occasion on which it had occurred was the previous Friday agreed to be 12 June. That revelation resulted in police involvement. Your daughter was asked if you had touched her in any way inappropriately. She at first denied that you had but she then revealed to the family friend what you had been doing to her for so long and she went to the police.
38When asked why she had not told anyone, she gave evidence that when she was a teenager aged between 13 and 15 she felt ashamed. She also said she did not tell anyone because she did not know what other people would think, but she thought they might be disgusted or, that they would not believe her. She said she thought it was her fault because she had let it happen. She also said she felt controlled by you and you would get angry with her, and she feared what you might do to her brothers and mother if she went against your instructions to her not to tell anyone.
39The courts often hear evidence of this kind associated with offending of this nature. It is part of the insidious damage done by offenders to the victims of this kind of offending who feel guilty should they complain because they know that if they do so there will be severe repercussions, not only for the offenders but perhaps for themselves and certainly for the family as a whole.
40I admitted into evidence victim impact statement of your two victims and also from your former partner, the mother of your two victims. Her daughter blames herself for what occurred, and she has ongoing relationship issues and she is nervous around older men. That is understandable. Your son is totally confused. Your former partner blames herself for trusting her children with you, particularly while she worked. All of these feelings are perfectly understandable. It is most likely I think that your victims will be affected by your crimes for the rest of their lives, and in passing sentence I have taken the effect of your crimes upon the victims into account.
41I turn to discuss some relevant factors relating to your background. I was provided with an outline of submissions by your counsel in writing and I marked that as Exhibit 1 on the plea. I borrow from that outline.
42You are now aged 41 and the offending occurred when you were aged between 26 and 39. You have no relevant prior convictions. You are an only child and your mother passed away some years ago. Your father continues to reside in Bendigo. You remain close to your maternal aunt. Save for her and your father and uncle you have no other familial connections. Prior to meeting the mother of your victims, you lived with your parents.
43Your education ceased at the end of year nine at which point you left school and commenced to work. I was told and accept that you found schooling difficult both academically and socially. You did not fit in with your peers and you were regarded as illiterate. You were bullied at school. Your family were poor and could not afford the school uniform, and you were dressed in clothes handed down from friends and family. You thus struggled academically even though you had the assistance of teaching aides in primary school, none were available to you in secondary school.
44Whilst you had a limited education you have nonetheless proved to be a good worker and you have been employed in unskilled work, mostly as a cleaner and in other work, save for about two years at the age of 16 and in the period of two weeks prior to your arrest in June 2015.
45In your younger years you played football for a number of clubs in the Bendigo area retiring in 2008 due to injury. You later became involved in owning and training greyhounds.
46You have had three significant relationships as an adult with women. Prior to commencing your relationship with the mother of your victims in 2001, you had a relationship with a woman and this produced one child, a daughter. Prior to your arrest you had been in regular contact with a view to having ongoing access to your daughter, but since being remanded this contact has ceased.
47I was told and accept that as a child you witnessed abuse of your mother at the hands of your father, who was apparently an alcoholic. You have also self-reported that you were sexually molested when aged around six or seven by a female family friend. This was not reported to the police.
48I was told and accept that you were a heavy consumer of alcohol but only on weekends. You apparently also used cocaine from time to time.
49You have been on remand either at the Melbourne Remand Centre or at the Hopkins Correctional Facility in Ararat since your arrest. You speak with your aunt by telephone on a daily basis and your father weekly but you have not received personal visits making your time in remand more difficult. Because of the nature of the allegations against you and because you have been on remand, you have not been able to engage in prison employment, but you have completed courses in drug and alcohol awareness and men’s behaviour and mental health. All this is to your credit.
50I was told that your health is poor and that you suffer from early stages of emphysema and that you have brittle bones and cardiac issues. During the course of the trial the court was unable to sit on one day because you were taken to the Bendigo Base Hospital in an emergency situation because you had developed chest pains. I requested a medical report from Justice Health relating to treatment received by you whilst on remand.
51On 16 December 2015 you were taken to St Vincent’s emergency department in Melbourne complaining of chest pain. The report which I have obtained reveals that you were diagnosed as suffering from endocarditis which was managed with anti-inflammatory medication. The report also attaches a report from Bendigo Radiology of an x-ray taken of your right knee in respect of which you complained of a chronic ache. The report revealed moderate osteoarthritic changes of the medial compartment of the right knee with moderate loss of joint space, sub-chondral sclerosis and marginal osteophyte formation. It went on to say there are no osteoarthritic changes of the lateral and patella-femoral compartments, no joint effusion and no evidence of loose intra-articular body.
52Whilst you have had a number of visits to hospital for various complaints, these have not resulted in the diagnosis of any serious illness or injury. Apart from what I was told by your counsel, I have not seen any medical evidence that you suffer from emphysema. There is no basis for me to regard your health as poor as was submitted. There is certainly no evidence to suggest that because of physical health issues your time in prison will be harder than for other prisoners.
53I admitted into evidence a neuropsychological report and assessment prepared by Martin Jackson, a clinical neuropsychologist. He interviewed you for that purpose on 8 June 2016 and he carried out a number of neuropsychological tests to assess you psychologically. A general intelligence assessment showed that you have a full scale IQ of 73, which is within the borderline range. Tests also revealed that your verbal intellectual skills (vocabulary, general knowledge and verbal abstract reasoning) were in the extremely low to borderline range with a particular weakness in verbal abstract reasoning which is said to be very concrete. You performed in the low average to average range or better on tests of new learning and memory, and you were said to be not overwhelmed by large amounts of information and you benefited from repetition. Your vocabulary was in the borderline range whilst your reading was in the extremely low range, equivalent to Grade 3 primary School. In contrast, you showed relative strengths in letter fluency (low average) and in particular, category fluency (superior). Mr Jackson’s tests revealed that in terms of executive functions you demonstrated relative strengths (low average) in basic planning and organisation and letter fluency. Your mental arithmetic was borderline and only consistent at single digit addition and subtraction. Your verbal abstract reasoning and visual logical thinking were within the extremely low range.
Mr Jackson gave the opinion that your thinking was particularly poor and inflexible and that you think in very black-and-white terms and cannot see alternative solutions to situations unless shown by others.54In summary, Mr Jackson found that you have significant cognitive impairment in the areas of basic verbal intellectual abilities, reading, multiple task processing and executive skills. He thought these impairments were of long-standing, certainly since childhood and at the time of offending. Because of these cognitive impairments, Mr Jackson was of the opinion that a sentence of imprisonment would weigh more heavily upon you than it would for a person in normal health. He thought you would be at risk of being used and abused by other prisoners because of your very concrete and inflexible thinking. You do not have the executive skills to recognise when you may be being used by others. So far as your mental health is concerned, Mr Jackson was of the view that you are clearly depressed, probably caused by your current circumstances.
55I accept the opinions of Mr Jackson and I have taken them fully into account. Your counsel submitted that having regard to the findings of Mr Jackson that limb five of the principles in Verdins is enlivened. I accept it is enlivened because of your cognitive impairments which I have discussed above, and I accept that because of your cognitive impairments that a sentence of imprisonment will likely weigh more heavily upon you than for a prisoner without such cognitive impairments, and I have taken this into account in arriving at an appropriate sentence. I accept that your cognitive difficulties and limitations will impact upon your ability to live and interact with others within the prison system, and I have taken this into account in arriving at my sentence.
56I turn to some principles to be applied by sentencing courts when dealing with crimes of this kind.
57In R v. Ware [1971] 1 VR 647, Hedigan J spoke of the evils of the crime of incest at p.653. He referred to what Justice Crockett had said in a Full Court decision of R v Wayland (unreported, 14 September 1992), where His Honour spoke of the need for sentences in such cases to give effect to both general and specific deterrence. In R v. Wakime [1997] 1 VR 242 President Winneke also spoke in like terms. These are now relatively old decisions, but reflect the court’s and the community’s abhorrence at this kind of offending against children.
58General Deterrence: Appellate courts in all jurisdictions in this country have repeatedly said that crimes against children and young persons are to be regarded as abhorrent and that the courts have a duty to the victims and to the community generally to protect such persons from people such as yourself, who might be minded to take advantage of them for personal sexual gratification. Recently, in DPP v Dalgliesh (A pseudonym) [2016] VSCA 148 the Court of Appeal spoke of the need for sentences for this kind of offending to be increased.
59Experience of the courts has shown that where such offences are committed the effects upon the victims (as here) and upon the family as a whole (as here), are both profound and lasting.
60I have referred above to the victim impact statements admitted into evidence. The consequences for the victims are there to be seen.
61Accordingly, any sentence I impose on you must send a clear message to those in the community, who might be of the inclination to offend as you have, that if they do so and they are detected, the punishment from the court will be stern and appropriate. Accordingly, in cases such as this, application of the principle of general deterrence will be a very important factor in sentencing, and I have acted accordingly in imposing sentence upon you.
62Offending of this kind that you have engaged in is offensive, repugnant and intolerable in this society. You breached the trust that was reposed in you as a father and partner. You destroyed the family that you had and you left its members suffering at your hands for the rest of their lives.
63Specific deterrence and rehabilitation must remain important objectives in the sentencing disposition of you. Although you have no prior convictions the sentence needs to ensure you do not reoffend. I am not satisfied that you will be completely rehabilitated. In my view the process of rehabilitation cannot commence so far as you are concerned until you accept full responsibility for the offending. At the present time you are angry at having been convicted and refuse to acknowledge this whole episode was all of your making. You are 41 years of age. At best I think your potential for lasting rehabilitation must remain guarded. Time will tell.
64The protection of the community from you and the likelihood of your reoffending is of paramount importance in sentencing for crimes of this type, where the offending is against children by an offender in a position of trust.
65The overall sentence must manifest appropriate denunciation of your conduct and must take into account current sentencing practices for offending of this kind.
66Finally, I must impose a punishment which is, in all of the circumstances, just, particularly after having taken into account your personal circumstances, your background and upbringing, your limited education, your illiteracy and your cognitive impairments.
67Having regard to the sentencing purposes to which I have referred, the circumstances of your offending and the relevant penalties fixed by the Parliament, there is no sentence other than a sentence of immediate imprisonment which is appropriate in this case, and it has not been suggested otherwise. In sentencing you, I have had regard to the nature of the offences,, the period of time over which those offences were carried out, together with the effect of your conduct upon your victims and your family, as appears all too clearly from the victim impact statements. The overall sentence I will impose must take into account the fact there were two victims here, and I am sentencing you on a number of charges, one of which is a course of conduct charge. The sentence I impose on that charge will be the base sentence.
68Such matters, however, must be balanced with the matters in mitigation to which I have endeavoured to refer.
69The offences in Charges 3, 4 and 5 on indictment F12195865.2 are serious sexual offences. That means that as you will be convicted of these charges and sentenced to a term of imprisonment, you are a “serious sexual offender” within s.6B(2) of the Act. I intend sentencing you to prison on those charges.
70Your counsel submitted that as the offences alleged in indictment F12195865.1 occurred prior to the offending alleged in indictment F12195865.2 then, for the purposes of deciding which of the five charges you have been convicted of are serious sexual offences, I should regard Charges 1 and 2 on indictment F12195865.1 as the first two convictions.
71Whilst I do not agree that the chronological order in which offences actually occur is determinative of the matter, I intend to deal with you in the order in which the offences stand in the records of the court. That is, I will convict you and sentence you to a term of imprisonment, first on the offences in indictment F12195865.1 and then the offences in indictment F12195865.2.
72I am required to sentence you on the charges in indictment F12195865.2 as a serious sexual offender. In doing so I must consider Part 2A Sentencing Act 1991.
73In determining the length of any prison sentence imposed on those charges protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances. This does not mean that the principles of proportionality and totality of sentencing are to be disregarded, unless in the exercise of discretion, I consider that the circumstances before me make it appropriate to do so for good reason. I do not consider that a disproportionate sentence is called for. In my view, the overall effective sentence I propose will properly and adequately provide for protection for the community. I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence.
74Every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence must, unless otherwise directed by me, be served cumulatively on any other sentence I impose on you. I will impose some cumulation, and order some concurrency, which I regard as appropriate, taking account of all of the circumstances discussed. I am required to cause to be entered in the records of the Court that I sentence you as a serious sexual offender in respect of any sentence imposed on you in that manner.
75Would you please stand, Mr Davis?
76On Charge 1 on indictment F12195865.1, incest, you are convicted and sentenced to a term of imprisonment of four years.
77On Charge 2 on indictment F12195865.1, incest on a course of conduct basis, you are convicted and sentenced to a term of imprisonment of nine years.
78On Charge 3 on indictment F12195865.2, indecent act, you are convicted and sentenced to a term of imprisonment of three years.
79On Charge 4 on indictment F12195865.2, incest, you are convicted and sentenced to a term of imprisonment of four years.
80On Charge 5 on indictment F12195865.2, incest, you are convicted and sentenced to a term of imprisonment of four years.
81I direct that one year of the sentence imposed on Charge 3 and two years of the sentence imposed on Charge 5, both on indictment F12195865.2, cumulate upon the sentence imposed upon Charge 2 on indictment F12195865.1 and upon each other, making a total effective sentence of 12 years' imprisonment.
82I direct that you serve a minimum period of eight years' imprisonment before being eligible for release on parole.
83Pursuant to s.6F(1) of the Act, I state that I have sentenced you on the charges 3, 4 and 5 on indictment F12195865.2 as a “serious sexual offender” within s.6B of the Act. I direct the fact of my having done so be entered into the records of the Court.
84I recommend that whilst in prison, you be referred for assessment and treatment under any relevant sexual offender treatment programs and that this matter be brought to the attention of the Parole Board at the relevant time.
85I note that you have served 403 days in custody in presentence detention. Accordingly, pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 403 days be reckoned as time already served under the sentences passed this day, and be noted in the records of the Court and deducted administratively.
86The crime of incest is a Class 1 offence pursuant to Schedule 1 of the Sex Offenders Registration Act 2004. You have been convicted of four such offences. The crime of committing an indecent act with or in the presence of a child aged under 16 is a Class 2 offence pursuant to the same schedule. You have been convicted of one such offence.
87You have thus been convicted of four Class 1 offences and, one Class 2 offence and, pursuant to the application of ss.6 and 34 of the Sex Offenders Registration Act 2004, you are a registrable offender within the meaning of that Act, with reporting obligations for life. I strongly advise you to take advice in prison as to your obligations under the Sex Offenders Registration Act 2004. You will have to comply with the reporting obligations upon your release and for the remainder of your life.
88I have been asked to sign a disposal order for one of the exhibits. The making of that order was not opposed and I have signed it. Are there any questions arising out of that, Mr Gray?
MR GRAY: Was there an application for a s.464 forensic sample, Your Honour?
HIS HONOUR: I do not believe so.
MR GRAY: Excuse me Your Honour, I have - well I - can I have a moment Sir? It is not opposed, Your Honour.
HIS HONOUR: Yes.
MR GRAY: I will hand up the relevant documentation, I think I have got it here, Your Honour.
HIS HONOUR: Yes.
MR GRAY: Your Honour I have now been advised that a sample was taken earlier on during the investigative process and a retention order is no longer required.
HIS HONOUR: Very well, thank you. Did you have any questions, Mr Patton?
MR PATTON: Your Honour there is just the matter of the two summary matters that were uplifted following the committal hearing.
HIS HONOUR: No matters have been uplifted before me. I raised that last time, Mr Cecil raised it last time, there have been no summary matters uplifted to this court so far as I am aware or my associate is aware.
MR PATTON: Thank you, Your Honour. I spoke with Mr Cecil yesterday afternoon, his advice was, or his comments were that the, according to his records, they were uplifted at committal. It would appear that they have not - paperwork perhaps has not moved from one end of the court to the other.
HIS HONOUR: Mr Patton, I made it very clear to Mr Cecil on the last occasion that there are no matters before me.
MR PATTON: I will take it no further then, Your Honour.
HIS HONOUR: The first time I heard of this was when Mr Cecil mentioned it. The sentence was to go ahead a week or so ago, your client was indisposed, Mr Cecil mentioned it on that occasion. I said to him then and I repeat now. I have no knowledge of it. There are no matters before me so far as the records of the court indicate, and that was the first I have heard of it, then today is the second I have heard of it.
MR PATTON: I will not take it any further then, Your Honour.
HIS HONOUR: I am not trying to be difficult, but - - -
MR PATTON: No, no, I - - -
HIS HONOUR: I am not going to make orders on things, even by consent, without there being matters properly before the court.
MR PATTON: Thank you, Your Honour.
HIS HONOUR: Thank you, Mr Patton. Yes, would you remove Mr Davis please?
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