Director of Public Prosecutions v Day (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT GEELONG & MELBOURNE

CRIMINAL DIVISION

CR 20-01210
Indictment No. L11250116

DIRECTOR OF PUBLIC PROSECUTIONS

Shane DAY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Geelong and Melbourne
DATE OF HEARING:	Trial - Sept Oct 2021. Verdict - 6 October. Plea - 24 Nov
DATE OF SENTENCE:	6 Dec 2021
CASE MAY BE CITED AS:	DPP v Day (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1999

REASONS FOR SENTENCE

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Catchwords: Indecent assault x2, gross indecency x1. Trial; Guilty verdict on three charges in one incident in tent. 9 or 10 year old victim his stepdaughter though by time of offending, had separated from mother. 66 years old as at sentence. Single appearance in criminal history of no relevance. Impact of COVID-19.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. McKenry (at Trial and Plea) Ms A. Kennedy (at Sentence)	Office of Public Prosecutions
For the Accused	Mr J. Lavery (at Trial and Plea) Mr M. Brugman (at Sentence)	Criminal Lawyers Geelong

HIS HONOUR:

Shane Gilbert Day[1], on 6 October of this year, following a relatively brief trial, you were convicted by a jury of two charges of indecent assault and one charge of gross indecency. There in fact had been a trial indictment containing six charges relating to four separate incidents. You were acquitted of those other three incidents represented by Charges 1, 2 and 3 on the indictment and so, of course, must get the full benefit of those acquittals.
[1] A pseudonym
The three charges for which you were convicted were the acts that took place in a tent that had been set up in the backyard of your victim's house in South Geelong one New Year's Eve. That victim was Eloise Day[2] and she was nine or ten years of age at the time.
[2] A pseudonym
You had formed a relationship with Eloise's mother, Shelly, after she had separated from her first husband, Eloise's father. That separation took place when Eloise was about five years of age and in the first year of school. You came into her life not long after and you filled an important role for many years. You became her stepfather, as you went on to marry her mother in 1983. You and Eloise's mother had two children together yourselves, so Eloise's younger sister and brother Terri[3] and Felix[4]. As I have indicated, you had separated by the time of the incident for which you stand convicted. There was though, still a strong relationship and you visited and had access and looked after the children from time to time.
[3] A pseudonym
[4] A pseudonym
On the evening in question, it was on New Year's Eve, you turned up unannounced at the family home in South Geelong. You had been drinking and it would seem you were the worse for wear. Eloise's mother was out at a New Year's Eve function and she had no expectation that you were coming to her house. Two of the children had set up two tents in the backyard for a bit of fun and they were planning on sleeping out there. They in fact were in their tents and they were roused by the noise that you made as you arrived down the drive. They tried to get you to go home but you would not. They tossed a coin and the loser had you sleep in the tent. Eloise lost that toss.
You sexually abused her in that tent. She gave evidence consistent with the way the matter had been opened in the written summary of prosecution opening and also consistent with her police statement.
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.
In that tent you tried to kiss Eloise on her face but she pulled away. You pulled aside her underpants and after rubbing her vagina, you inserted your finger into her vagina. That penetrative act is the subject of Charge 1, indecent assault. You asked her to tickle you, and she being a child, thought you meant a tickling of the ribs and that is what she then did. You, however, instructed her to 'do it like this' and you demonstrated by handling your own penis. You had removed your clothes. You told her to kiss your penis and she did that by putting her lips to your penis. You kept saying 'not like that.' That kissing of your penis is the subject of the gross indecency charge. Now, an act involving penetration would have constituted the crime of incest and that is not what is alleged. as is clear from the particulars of the charge. That act was not penetrative.
You followed that act up by touching yourself and then you again inserted your finger into her vagina and that digital penetration was the subject of Charge 3. She tried to move away from you without success and she ended up lying on the wet grass and, as she described that incident, it seemed to go on forever. She was too embarrassed to tell her mother anything the next morning.
Now, I have mentioned already some surrounding circumstances, such as touching yourself and trying to kiss her and rubbing her prior to penetrating her. Whilst I have no doubt at all that this conduct took place, I am satisfied beyond reasonable doubt that it did, I am sentencing you for the acts specified in these three charges for which you have been convicted.
I am satisfied beyond reasonable doubt that, on that morning, you did in fact take Eloise and others to your parent's nearby farm and at one point asked her to come outside to talk to you. You went to a shed and there you told her that she was not to tell anyone because you would go to gaol. You told her also that if she said anything, that your children Terri and Felix would be left without a father in the same way as she had not had one. It was a powerful statement to make to this pliable young girl, as she had at times in her life, missed her own father very badly. She did not want her brother and sister to suffer that same fate. I am also satisfied beyond reasonable doubt that you followed that up about a year or maybe two years later at her birthday and reminded her not to tell anyone.
She complained to a school friend in year 7. There was evidence of her saying some things by way of complaint to her mother in due course, though the timing of that was not entirely clear and it seems that the mother feels a sense of guilt for not actioning these matters appropriately. There was an attendance at a police station which seemingly went nowhere. I must say, it was hard to piece together the post-offence chronology.
Eloise Day came forward as an adult in 2019 and she gave a statement to the police. You were arrested and interviewed in February 2020 and you gave an account of having been drinking to excess and having a very poor memory of an incident in a tent, not the incident that she described. The police interview, of course, was a real problem for you. So too two pretext calls, which had preceded your police interview, one with Eloise in September 2019 and one with your daughter Terri in January 2020. In those calls you did not dispute some unintended act occurring in the tent. Again, you said you were very intoxicated and could not remember what had actually happened. Your account of not having a good memory of the tent event sat very uncomfortably with the evidence that you gave at your trial. You stepped away to some extent from that lack of recollection and also as to the level of your drunkenness on the evening.
You denied that any of these sexual events took place and you were not suggesting that there was any possibility of any acts having taken place, other than the one you described. In your interview, you said that you had woken up to find yourself lying on top of your stepdaughter with her crying and saying ‘you’re hurting me dad.’ It was, if I may say so, a very unpromising platform from which to run a trial in relation to these three charges but run it you did. That was your right.
Your victim was cross-examined and she was challenged as to the existence of these events. It was suggested to her that she was making up the allegations with a financial motive, that of getting compensation. That suggestion was flatly denied by Eloise Day and she said she was shocked by the suggestion and just wanted justice after all these years.
It was also suggested that she had misattributed the conduct of some of the abuse and laid at your feet the conduct of perhaps her father or some other man. It must be said that was surely an impossibility in relation to the tent event. You were there and so was she and each admitted something had happened. She described that ‘something’ in very clear terms. She had never forgotten it and she told the jury what you did to her.
Given the passage of time and the impact of the delay, I was required to give a forensic disadvantage direction to the jury. That, in combination with the lack of any supportive evidence for Charges 1-3, no doubt left a reasonable doubt in the minds of the jury. It was a different proposition altogether with the tent incident. There was her account, there was a complaint, there was your own account in the pretext calls and interview, as well as an admission to your wife, suggesting that something untoward had happened. When giving evidence at trial, you said that your account to the police and in the pretext calls was true. I repeat, that in the pretext calls you told your daughter Terri and Eloise that you really had no recollection of the night and that you were extremely drunk.
I observe that you had sufficient memory the morning after these events to know what you had done and how serious it was criminally. It was you counselling Eloise not to tell about what had occurred or you would go to gaol. I note in the interview that you said that you were aware at the time of the tent incident that she had been sexually abused previously. I note also in your evidence that you said you had told your ex-wife about the incident, or your account of it, and received the response from the girl's mother: 'well that's not too bad.' She rejected that proposition. You also gave that evidence at your own trial. That exchange never occurred. I am satisfied of that beyond reasonable doubt.
In your evidence, you were suggesting that you told Eloise not to tell as you were worried your mother would find out on her visit. That was not the reason. You did not want anyone to find out about what you had done and that much is clear from your conduct on the morning and from the pretext calls. She was, as you knew at the time, a quite damaged little girl. She suffered from a number of health complaints, she was extremely shy and introverted and suffered from what was described as selective mutism. Whether true or not, you believed she had been sexually abused prior to this tent incident. That is the young girl you sexually assaulted. Someone who trusted you. Someone who had viewed you as something of a father figure.
This was serious offending indeed. The passage of time has not made it less serious. You have, to some extent, brought about delay here by your own acts committed, as they were, as a trusted figure and then by instructing her, a child, not to tell and advising her of the ramifications of telling. Ramifications for you and for her sister and brother. You never wanted this to come out and now it has.
You have no relevant criminal history at all. The single appearance in the criminal history is irrelevant to my task. I have been told of a drink driving subsequent appearance. That does not inform my task at all, though was addressed by
Mr Cummins in terms of his judgement as to a history of problematic alcohol use.
The offence of indecent assault carries a five year maximum prison term, the gross indecency a two year maximum term of imprisonment. These are the maximums that applied at the time.
I see no need to set out any more of the evidence. Clearly, what was in dispute in this trial was the acts occurring within that tent. The jury have answered that question unequivocally by their guilty verdicts.
Impact
There is an impact statement from Eloise. She was a child but of course now she is a grown woman. She has been very deeply affected by your crimes, that much is clear. She read her impact statement. She had trouble speaking to people because of anxiety and fear. She described starting to sleep in jeans to avoid violation. She has a sense that you stole her childhood and she wonders how her life might have turned out, absent this abuse. Well, she cannot ever know, as your abuse cannot just be wished away or erased. It occurred and it has had a lasting impact upon her. She has lost her trust in people. When she was pregnant with her own child, she was wracked with worry as to how she might protect a girl, if she had one. She was in a way relieved when she had a son but was then overprotective of him.
The court process has not been an easy one. I am dealing with the impact of the three charges for which you have been convicted and there is no doubt that you, by the commission of those three crimes, have caused very sizeable impact upon Eloise. I take into account that impact.
In Mitigation
Mr Lavery conducted the plea on your behalf and he had prepared an outline of written submissions. He relied upon a report from Mr Cummins, as well as three references. He told me about your personal and family background, including details of your educational and employment history, as well as your relationship history. He detailed the health issues that you had in the past and currently.
He made some submissions as to the objective gravity of the offending and matters of sentencing principle at play in a case such as this. He made submissions about the existence of support, the absence of any relevant criminal history and your prospects of rehabilitation.
He relied upon the following matters in mitigation:
·     The presence of remorse.
·     The significant delay since this offending, the fact of it hanging over your head for many years and your efforts in that sizeable period.
·     The impacts of COVID-19 upon your prison experience to date and continuing.
·     So too, the impact of some health conditions upon your custodial burden.
He conceded that this was serious offending and that a prison sentence was inevitable here, but argued it was open to suspend either wholly or partially, any such sentence. I interpose that such an outcome is no longer even a possibility in this court for any offence occurring after 1 September 2013. This offence predated that date and so the abolition of suspended sentences does not apply to my task. Mr Lavery argued that the sentencing practices in play at the time of the offending were likely to be less severe and that this should fortify the view that a suspended sentence was open in this case.
Prosecution
Mr McKenry who was the prosecutor, placed before me some written submissions marked as Exhibit B. He argued on behalf of the Director of Public Prosecutions of this State, that an immediate term was required here and one extending beyond your existing pre-sentence detention. The prosecution challenged the suggestion that there was any remorse. They made submissions as to some of the aggravating features and argued that the offending was a high level example of the crime of indecent assault, given the age, the relationship and the acts themselves.
I will return in one moment to discuss these various submissions made on your behalf, as well as the matters raised by the prosecution. I will turn firstly and briefly, to your background.
Background
I do so briefly, as I have no reason not to accept what I have been told about your background. There is mention of it in the written submissions as well as in

Mr Cummins' report. You are now 66 years of age and grew up in Geelong West and Lara with your mother, father and three siblings. You had two older sisters and a twin brother. Your parents are now both deceased. You were educated to form 5 level. As I have said, you married Eloise's mother in 1983 and you were divorced in about 1994. You had two children together to add to Shelly's three children from her earlier marriage. You moved on to another relationship with a woman named Nina Wheeler[5]. Her daughter, your stepdaughter, Bianca Wheeler[6], gave character evidence on your behalf and has provided a written reference as well. You have been dating another woman now for close to two years. She has also provided a written a reference.
[5] A pseudonym
[6] A pseudonym
Employment has really never been a problem for you, with work in roofing and construction, then more recently as a cleaner at the Geelong Hospital. You had earlier still worked as a signalman in the railways. You have had some work injuries with a serious ankle injury in 1996 and a knee reconstruction this year. There have also been some spinal issues. You are on pain relief medication. You have not been particularly expansive with Mr Cummins as to your use of alcohol, that much is plain from his report. You are judged by him to have a low risk of re-offence and that is fortified by the long delay since this offending and the absence of any other matters in your criminal history.
Since the verdict, you have been in custody for the first time and that has not been easy, amidst the restrictions in place owing to the global pandemic.
I turn then to consider the various other matters raised by your counsel.
Remorse
Mr Lavery points to your attitude in the pretext calls and the interview and suggests you are remorseful for these crimes. I am not satisfied on the balance of probabilities that you exhibit actual remorse for these crimes. You have denied your guilt absolutely and you still do. You challenged the happening of these very acts and, through your counsel, suggested a motivation for lying. You entered the witness box and swore that these things did not occur. Mr Lavery was relying on what you said in the interview and the pretext calls, including an apology, as evidencing remorse. No doubt, had you gone on and admitted your guilt and pleaded guilty there would be a very strong foundation indeed to find remorse. That is not what happened. The apologies in the pretext call with Eloise were to a very different act and are overtaken by your stance taken at trial.
It is possible that in the pretext calls you were adopting a defensive and conciliatory tone, in the hope that the matter would not be reported. The prosecutor argued that you were apologising and making limited admissions as a means of ‘managing’ the victim's complaint and minimising your own conduct. I am not satisfied of that to the required degree. You were perhaps hoping the matter would go no further. I cannot know for sure why you said what you said in the pretext call. However, I am satisfied beyond reasonable doubt it has always been your hope that the matter would not surface. There is reference in the character reference letters, marked as Exhibit 2, to remorse, but they are very problematic. Who knows what you told Ms Armstrong[7] about 'the incident in the tent.'
[7] A pseudonym
You could not have admitted any wrongdoing as you really still do not. Likewise, what could you have told Mr Cain[8] about the incident? I do not accept his opinion that you are remorseful and upset about 'the incident'. I do not doubt he thinks that by the way, but he does not know what I know about the actual incident, what you have admitted, what you have disputed and what actually took place and how this trial has been conducted.
[8] A pseudonym
Ms Wheeler was approached only a few months ago. You confided in her, as to what, is really anyone's guess, but she says you were upset and emotional with what was being said about you and were in shock and could not believe the allegations. There are also multiple references in Mr Cummins' report touching upon the absence of remorse (see paragraphs 26, 27, 28, 36, 45, 46, and 52 of that repor). You saw him on 4 November. If you were remorseful, that would be a matter in mitigation. I want to make it clear; the absence of remorse is not a matter in aggravation. It is possible, I suppose, that deep down you may have some actual regret for the acts which you know did take place in that tent and that the apology in the pretext call drew from that feeling of regret. I am not satisfied of that though on the balance of probabilities.

When I examine all the materials, including the pretext calls and the interview, the matters put to the complainant denying any of these acts and raising reasons for her to have lied and your evidence at trial with a complete denial of these acts occurring, a stance which you persist in with your discussions with Mr Cummins, I am just not satisfied on the balance of probabilities on the materials before me that there is any actual remorse on display here.
COVID-19
Your counsel relied upon the impact of the COVID-19 pandemic upon your prison experience to date and into the future. I accept those submissions. Prison has been a more stressful place owing to COVID-19. Now, of course, you only recently entered prison following the jury verdict, but it has been in circumstances where there has been quarantine and no personal visits. That is a tough initiation. It has not been a good time to be locked up. What lies ahead in the future is really impossible for me to gage. I am not free to speculate about that. I cannot speculate, for instance, about how long restrictions on in-person prison visits will persist.
We have been starting to open up in the community owing to the increased vaccination rates. Significant opening up in the community occurred a few weeks back and that was as a result of us reaching that 90 per cent vaccination target. Prisons seem to have lagged a bit behind the community in terms of lifting restrictions. Presumably though, the restrictions in a prison setting will lift in the not too distant future. I cannot say when that will happen. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case by case basis. They will have the power to address any increased burden in your actual case by way of conferring emergency management days. I cannot know if that will take place or not. I do not proceed on the assumption it will. I just cannot know, so I do not take that possibility into account
I do take into account that it seems likely that these current restrictions will continue into the future, at least in the short term. That, no doubt, would produce some worry and uncertainty and heightened prison burden. So I take into account the increased burden posed by the response to COVID-19 in the ways contemplated by Mr Lavery.
I also take into account your state of health. There is no suggestion that you cannot be appropriately treated and medicated in prison and there really is not too much information about the real impact of these physical conditions that you suffer from. At 66 you are said to be in advanced age. I must say, I was worried by that submission owing to my own age. It strikes me that you are really not too old at all and your health is actually not too poor. Still, I accept that the leg and back issues are not easy and the use of painkillers will not be at your discretion as it would be in the community. There is then some modest increased burden arising from your physical conditions. Your counsel was not suggesting it was a high level issue and he was right. It really is not.
Rehabilitation
I turn then to your prospects of rehabilitation. You are 66 years of age and you are being dealt with for events occurring in the late 1980's. There is no relevant prior criminal history or anything of note subsequently. You have had a good employment record. You also have a number of attributes spoken of in the references which I see no need to list. The fact that I don’t act on the suggestion of remorse, does not set those letters to nought. You are far more than the person who has committed these offences all those years ago. I have not set out the detail from Mr Cummins' report, but it is obviously germane to this issue. There is, in his opinion, the absence of any psychological or psychiatric diagnosis explaining the offending and heightening your future risk, such as a condition of paedophilia or personality disorder. That is not what we are dealing with here. Alcohol has been an issue, whether you think it has been or not. You are not resistant to specialised treatment, though Mr Cummins doubts you would need it, given the low risk profile that he speaks of.
I have no entirely satisfactory explanation of this offending. You deny it. You deny any sexual interest in children. Mr Cummins puts it down to disinhibition brought about by alcohol consumption, a ‘situational’ offending. That is not a particularly palatable explanation, if I may say so. Intoxicated people do lots of things, I am sure of that, but this involved sexual acts committed with or upon a nine or 10 year old girl and I have no doubt at all that you had a memory of those acts when you warned off Eloise from telling about them the following day and a year or two later. Having said that though, it seems clear that this was not some premeditated or planned act. There was, after all, a toss of a coin to determine where you would be sleeping.
I cannot ignore the passage of time and the complete absence of any other offending. No doubt, the time you have spent already and the time you will spend in the future undergoing this sentence will serve to deter you, to a degree. Ultimately, I am prepared to find that you do have very good prospects of rehabilitation.
In paragraph 5 of his written submissions, Mr Lavery submitted that I should find that you have had these matters hanging over your head for close to 30 years and that this was a matter in mitigation. I am not satisfied that you felt any great burden from having these matters unreported and unresolved. You wanted them never to see the light of day. You discouraged your victim from speaking out and when she did closer to the date, you played a straight bat and tried to minimise your conduct. You then chose to walk away from your past and start a new life. That was your right. On your own version, you would say that there was an accidental rolling onto a girl. Full stop. But of course, that is not what happened but that is the narrative you have maintained.
Yes, of course, there is a disadvantage for you in being dealt with at this time of your life, so long after these events and I do not ignore that. I have already spoken of the absence of any subsequent offending and the benefits of the ongoing rehabilitation in your life in the lengthy period that has since elapsed. There is also though the reality that your victim, who would have taken some real solace from acknowledgement and counselling when she was a child, has waited almost half a lifetime to be vindicated. It was after all you in the pretext call who said to her that she should have brought the incident out into the open at the time and how wrong it was that you did not. It is a shame that it was not brought out into the open all those years ago for you, but also for her.
The Offences
I turn now to the offences and there is little need to say too much about them. I have described the acts and the setting.
Sexual offences against children have always been viewed seriously by the courts. Eloise was nine or ten years of age. She was part of your family. That did not stop when you separated from her mother. I believe this conduct is at the serious end of conduct captured by these now obsolete provisions. Back in that day, digital penetration was not treated as an act of sexual penetration by way of a specific crime. That changed a handful of years later. Hence, here we have charges of indecent assault and gross indecency. But those charges could cover a multitude of differing acts, including touching, even on the outside of the clothing. That is not what I am dealing with here.
Acts such as these ones, in the setting of a family relationship, surely must fall at the higher end. There was a relationship between you and Eloise and trust vested in you. This child was in her own home in a tent out the back having a fun, children's camp out. You arrived unannounced, declined to leave and then, in the course of the evening, you penetrated her in the way described. Your being drunk is not mitigatory. At best, it might provide some context. This was serious sexual offending and it has had sizeable impact, as one would expect it to. I do not regard the indecent assault offences as being mid-level offences. They were not. Likewise, as to the gross indecency, it was not some low-level example. You were having her kiss your penis.
Purposes
I am required to consider a number of matters, including the nature and the gravity of offending and 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 do not ignore that purpose at all. I give it weight given my very favourable conclusion in that regard. A conclusion derived in large part from your efforts in the many years which have passed since you offended back in the ‘80s. These events are decades in the past with nothing of note occurring since.
I must take into account, however, 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. I must also denounce your conduct. That is also of importance. This sexual conduct in relation to a young girl, must be roundly denounced. I do denounce it. You should be ashamed of yourself but regrettably, you are not.
Then there is deterrence, both general and specific, and community protection. I must at least consider the need to deter you from offending in the future. That principle of specific deterrence though, can be significantly moderated here, owing to my favourable conclusions as to your rehabilitative prospects and the absence of any criminal activity in the many decades since this offending. For the same reason, community protection, which would often be an important, if not the paramount purpose of sentencing, can be significantly moderated in relation to the first two sentences imposed.
Those two purposes, specific deterrence and community protection, must drop away very significantly in my sentencing task. There is an alteration of that position in relation to community protection when I come to impose the third sentence, where you are, by that stage, to be dealt with as a serious sexual offender. The Sentencing Act marks out the paramountcy of community protection for that particular sentence (see s6D(a)). Absent that provision, it could really make no sense to give community protection much weight at all in this case.
General deterrence though is in a quite different position. This relates to the need to deter other people. It is an important purpose of sentencing for this sort of offending. This court must send a loud message to other individuals in the community who might be minded to commit these sorts of serious offences. Sexual offences against children are abhorrent and they must be actively discouraged by the sentences imposed in the courts. There is nothing at all unusual about a matter taking decades to come to court. We are learning that delay in complaint is very much the norm, especially in offences occurring in a family setting and where steps are taken by the offender to suppress the disclosure of the details, as were taken here. A loud message must be sent to those who may 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 Mr Lavery.
I must pay regard to current sentencing practices. That is not a single controlling matter. It is just one of the many matters that I must have regard to. Your counsel in paragraph 13 of his written submissions, spoke of the requirement to take into account sentencing practice which existed at the time of the offending. When sentencing for historic offences, the Court of Appeal of this State has concluded that, for the purposes of the Sentencing Act, the term 'current sentencing practices' refers to those in effect at the time of sentencing, not those which existed at the time an offence was committed. However, it is a bit more complicated than that. Use of current sentencing practices must then take place alongside an awareness of the maximum penalty that applied at the time of the offending. Caution is called for in using current sentencing practices for an offence that now carries a higher maximum penalty than at the time of the offending.
While sentencing practices at the time of the offending are not 'current sentencing practices' for the purposes of the Act, equal justice may require a court to consider historical sentencing practices so far as they can be established, and if they demonstrate that a materially lesser sanction must have been imposed for a like offence than current sentencing practice would impose. It is not an inflexible rule and practices at the time of offending are only applied if it is reasonably practicable to do so, as changes in a statutory regime may complicate determination of the applicable law. That is the position here.
There have been many changes to the law. Changes to definitions of what constitutes sexual penetration. As I have said, digital penetration at the time of these acts was not regarded as an act of sexual penetration by way of a separate charge. The maximum penalties for indecent assault rose substantially over the years and the range of conduct at the higher end of that offence has shrunk, with the enactment of specific penetration offences with higher maximums. Those other offences removed from the offence of indecent assault any penetrative conduct. There is no such offence these days as gross indecency. That became obsolete decades ago. Indecent assault has been replaced by the offence of indecent act and that has been replaced by the offence of sexual assault and for many years, none of those offences could have included a penetrative act such as the ones that you committed.
So with that in mind, consideration of statistics, which is inherently problematic at the best of times, is more so in this sort of case. Statistics for which crime? With which maximum? I mentioned on the plea that there is a Sentencing Advisory Council Snapshot No. 23 for indecent assault and Snapshot No. 24 for indecent act, but each relate to different offences with that higher maximum penalty. There is no Sentencing Snapshot for gross indecency. I have looked at the Sentencing Advisory Council online statistics for each offence. Again though, there is an issue, for though the online statistics relate to what is described as the repealed s.44 offence of indecent assault, no doubt that data relates at least in part, if not large part, to sentencing at a point in time where there was a higher maximum. There are the online statistics relating to sentences imposed for gross indecency, but they are sentences imposed from July 2015 to June 2020, so they give no real window into the style of sentences imposed back in the 1980s.
I have looked also at relevant cases listed in the sections of the Judicial College of Victoria Sentencing Manual dealing with historical matters. That material at 3.5, includes recent examples of sentences imposed for historical crimes, such as these, but with similar difficulties in terms of discerning the maximum penalties in play.
It is terribly difficult to determine a sentencing practice from over 30 years ago and, as I have observed, this style of indecent assault and gross indecency would always have been treated seriously. What I must do is pass an appropriate sentence.
I must take into account the maximum penalties, as they applied at the time. I do not lose sight of that fact. It is important. Lower maximum penalties would necessarily have led to lower sentences. It is obvious that attitudes have changed over the years to what is the appropriate maximum penalty, but what I must do is to pay regard to the maximum as then existed. Sentencing has no doubt become harsher for sexual offences, if not all offences, actually.
As to the suggestion that was made by your counsel that cases such as this might have been dealt with in the Magistrates' Court, that really gets me nowhere. Some might have and some might not have been dealt with in the Magistrates' Court and that is not a matter of any great weight to my task. This one was not and maybe it would never have been heard in the lower court, even if it was dealt with in the 1990s. I just cannot know one way or the other. I believe that is something of a distraction.
Whatever might be said of the statistics, they tell me nothing about the finer detail of the crime. Nothing about the matters in mitigation or aggravation. Many of the cases upon which the statistics are based would have been guilty pleas. Many of the sentences I have looked at involved a guilty plea and one where there was a finding of remorse. That is worth a great deal in all cases, but more so still in cases involving sexual assaults. Well, those things do not exist here. It was your right to run a trial but, having done so, you do not have at your disposal the very sizeable benefits of a guilty plea, especially one made in the course of the global pandemic and one accompanied by actual remorse. I am not satisfied on balance that there is any.
I must deal with you for your crimes, taking into account the matters in mitigation and aggravation in this case. The statistics provide no answer to my task at all, nor, for that matter, do these other cases that I have looked at.
Totality
I take into account the principle of totality of sentence. 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. I have the serious offender provisions of the Sentencing Act which come into play by the time of the third sentence. The ramifications are, that for the sentence imposed upon you as a serious sexual offender, I must treat the protection of the community as the principal purpose of sentencing. I may impose a disproportionate sentence to achieve that goal, pursuant to s.6D(b). I certainly will not be doing that here.
In the absence of a direction otherwise, the sentence imposed on the third charge would be served cumulatively as the presumption of concurrency is deliberately removed. I do not ignore those serious sexual offender provisions but must consider your actual risk and I have spoken of that already. Of course, what sentence is required to protect the community necessarily depends upon my assessment of the risks that you present, which I find, on the material served before me, to be low (see R v RNT[9]).
[9][2009] VSCA 137 at [16]
Plainly, there is a strong relationship between these three offences; they were part of an episode. That is not to say that they are deserving of complete concurrency; they are not. They were each separate criminal acts, no doubt each having a role to play in the overall impact caused here. I do accept that there can be quite sizeable concurrency in relation to the third sentence, notwithstanding the s.6E Sentencing Act provision.
Now, sending a person to prison is always a disposition of last resort. Your counsel concedes that I must impose terms of imprisonment, some level of cumulation and arrive at a head sentence. He argues that a head sentence of three years or less is achievable here and, hence, there would be the ability then to consider suspension of any sentence, either wholly or at least in part. The availability of a term of imprisonment for which there might have been consideration of some order as to suspension, would no doubt have been open had your pleaded guilty and been able to call in aid, the very sizeable savings represented by a plea of guilty in these COVID pandemic times and one with actual remorse. But that is not the position I am in at all.

Even if I was sentencing you to a period of imprisonment for which there could be consideration of suspension, and I am not by the way, I would have been required to consider the matters spelt out in s27(1) of the Sentencing Act. A court must be satisfied that an order suspending the term, either wholly or in part, was desirable in the circumstances. In determining if an order suspending a sentence was desirable, regard must be had pursuant to s27(1A) of the Sentencing Act as it then existed and a court must then consider a number of things, including the nature of the offence and its impact on your victim and whether a wholly or partially suspended sentence would adequately manifest the court's denunciation or adequately deter others or reflect the true gravity of the offence. All those things would have strongly militated against an order for total suspension.
This is academic, however, as I am satisfied that a sentence in excess of three years is required here. There is no ability to suspend, either wholly or in part, a sentence of that dimension. What I must do instead is fix a non-parole period. I must make no assumptions as to whether you will be released on parole. It is not for me to decide. That rests entirely in the hands of the Adult Parole Board.
Sentence
I move now then to pass sentence.
·     On Charge 4, the first charge of indecent assault, I convict and sentence you to two years nine months imprisonment.
·     On Charge 5, the charge of gross indecency, you are convicted and sentenced to 16 months imprisonment.
·     On Charge 6, I am sentencing you as a serious sexual offender. On that charge of indecent assault, I convict and sentence you to two years nine months imprisonment as well.
The base sentence is therefore the two years nine months imposed on Charge 4.
I direct that five months of the sentence imposed on Charge 5 is to be served cumulatively upon the base sentence and the other part concurrent sentence. To that point then, there is a sentence of three years and two months.
I direct that two and a half years of the sentence imposed on Charge 6 will be served concurrently with all other sentences. It follows that under s6E, I otherwise direct concurrency to that large extent. It is my intention then that there be that additional three months cumulation, on top of the existing three years two month to that point.
Total Effective Sentence
This results in a total effective sentence of three years and five months imprisonment. I direct that you serve a period of two years before becoming eligible for release on parole.
Section 18 - Pre-Sentence Detention
You have spent already the period of 60 days in custody by way of pre-sentence detention and that period is declared as having already been served under this sentence.
Serious Sexual Offender
I have sentenced you as a serious sexual offender on Charge 6 and that fact is also to be noted in the records of the court.
Sex Offender Registration
You have been sentenced by me in relation to what will constitute a Class 1 offence under the Sex Offender Registration Act2004. These three acts all occurred in the same incident and so are treated in a particular way under that Act. It is agreed that it triggers an obligation to report under the Sex Offenders Registration Act and there is no issue taken with the length of reporting obligations.
Upon your release from custody, you must comply with your reporting and other obligations under that Act for 15 years.
HIS HONOUR: Now let me just clarify. Is there anyone else in that room with you, Mr Day, or not?
OFFENDER: There's a guard here, Your Honour.
HIS HONOUR: All right. I believe that in that room there's a document that explains your obligations under the Act. I wonder if that could be handed to Mr Day, please. So I'm having a document come across to you.
OFFENDER: Yes, sir.
HIS HONOUR: Now, I've signed that document already. You're going to need to acquaint yourself with that document in due course, Mr Day. I'm not expecting you to do it now, it's a very lengthy document. At this stage, I'm having it provided to you for you to sign and by doing so, you're just acknowledging that you've received those explanations as to your responsibilities under that Act.
The Sex Offender Registration Act imposes a number of conditions upon you. They're serious matters. They include impediments to future employment in a number of areas. So they're serious impediments to your future contact with children. You will really need to familiarise yourself with those matters and get legal advice in relation to them as well, for any breach of the Act or your reporting obligations, is itself a very serious criminal offence and one punishable by a term of imprisonment.
So normally you'd be in court and I'd send your counsel down to have a chat to you about these things. So, Mr Brugman, I mean, you've seen these documents before. All I'm really dealing with here is the notification of his reporting obligations. It's a very lengthy document, it goes into all his requirements under the Act. He's not being asked to read it all now, that would just be impossible for anyone to do. He will need to read it in due course and have it explained to him in due course. He's being asked merely to acknowledge, by his signature, the receipt of that notice under that Act. Do you understand that, Mr Brugman?
MR BRUGMAN: Yes, Your Honour.
HIS HONOUR: All right. So, Mr Day, if you'd be good enough - I think it's towards the very end of that document, if you'd be good enough to sign the relevant portion of that document please.
OFFENDER: Now, Your Honour?
HIS HONOUR: Yes, please.
OFFENDER: I'm not reading through it first?
HIS HONOUR: Well, I know it's normally not the position that you're going to sign something without reading it. I'm explaining to you, you're simply being given - it's you signing, acknowledging that you've been given your reporting obligations under the Act.
OFFENDER: All right, Your Honour.
HIS HONOUR: It's a very lengthy document. You're going to have to read it in due course but this is simply you acknowledging by your signature that you've been given the document. I wonder if you'd sign there please. And if the prison officer would be good enough to sign on the relevant portion as well please. All right, I'll just see if there are any other matters. Any other matters from your perspective, Mr Brugman or Ms Kennedy?
MS KENNEDY: No, Your Honour.
MR BRUGMAN: No, Your Honour. If Your Honour pleases.
HIS HONOUR: I'll just see how long we've got the link for. Mr Brugman, I know that it's not that easy to actually see people at the moment. Whether things are opening up or not for you, I'm not sure, but we've got this link for a little bit longer. You'll need to, no doubt, speak to your client in due course to work out what he wants to do and to explain his rights in relation to this sentence. Are you wanting to use this link at all at the moment or not? Because you're free to - - -
MR BRUGMAN: If I may.
HIS HONOUR: You can if you want. We've got it for a little bit of time. So I think what we can do is, we can have you essentially in a room with your client with no-one else there, no-one will be overhearing or anything like that. You'll then essentially be the host of what will be a private meeting between you and your client. So you might as well at least use that. It probably saves you the effort of making other arrangements. But you may need to make them as well, I don't know. But I'm happy for you to use the link in that way if you'd like to.
MR BRUGMAN: Thank you, Your Honour.
HIS HONOUR: All right, well that’s what we'll do then. So, Mr Day, you just obviously remain where you are and Mr Brugman will be in a position to speak to you. I'm not sure whether that'll be done in the absence of a prison officer at the other end. You'll need to sort that out yourselves. But it'll certainly be done in the absence of me or any of the other people connected up with this matter. And what I'll do in due course is, once I get these reasons back from VGRS, I will revise them and make them available to the parties. So Mr Lavery will be able to see them in a pretty short time as well, I imagine. So I imagine later this week I should be in a position to get them back and revise them hopefully.
Well that completes the matter then. Well, I think what I'll do then is I'm going to adjourn the court - have the court adjourned shortly. All the other parties, other than Mr Day and Mr Brugman, will be exited from the meeting and then, Mr Brugman, you can terminate that meeting whenever you feel like it. Really, it's up to you. But I think we've got the link until about 4 o'clock. I think that's what we'll do then. I'll sign that formal order. Look, I've signed that order. So I think what I'll do at this stage then is I'll have the court adjourned then till 10.30 tomorrow then, please. Thank you.
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[2021] VCC 1999

6 Dec 2021