Director of Public Prosecutions v De Dood

[2017] VCC 1070

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02039

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANCIS PETRUS DE DOOD

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2017
DATE OF SENTENCE:	7 August 2017
CASE MAY BE CITED AS:	DPP v De Dood
MEDIUM NEUTRAL CITATION:	[2017] VCC 1070

REASONS FOR SENTENCE
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Subject:  Sentencing; plea of guilty

Catchwords:  Historical sexual assaults; 5 complainants; males under age 16; pleas of guilty; offender a Salesian priest and teacher

Legislation Cited:     Sentencing Act 1991, s6AAA, ss6C-G; Sex Offenders Registration Act 2004

Cases Cited:DPP v Toomey [2006] VSCA 90; Ryan v R [2001] HCA 21; Stalio v R [2012] VSCA 120

Sentence:                  TES: 3 years imprisonment with a non-parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	OPP
For the Accused	Mr A. Halphen (on plea) Mr V. Azzopardi (on sentence)	Tony Hargreaves and Partners

HER HONOUR: 

1Francis Petrus De Dood, you have pleaded guilty to one charge of unlawful and indecent against a male person under the age of 16, and five charges of indecent assault on a person under the age of 16.  The maximum penalty for each such offence at the time it was committed was five years' imprisonment. 

2These offences were committed between 1978 and 1983 against five adolescent boys, all involving indecent touching of them. In May 1979, you were ordained as a Salesian priest, and at the time of the first offence were nearing the end of your studies.  All but the first of the boys against whom you committed these offences were students at Salesian College, Rupertswood in Sunbury, where you were a teacher or carrying out other roles in supervising students.

3The circumstances of each offence are set out in some detail in the prosecution opening which was tendered and will remain on the court file.  I shall only repeat as much of that information as is necessary to reflect aspects of the circumstances relevant to sentencing. I shall not use the names of any of your victims.  That is not out of any disrespect towards them, but to protect their privacy on publication of these reasons for sentence.  Your name is not protected from publication.

4Charge 1 arises from your actions in 1978 when you were aged about 26, and were living and completing studies at Don Bosco Salesian residence in Oakleigh.  Your first victim, R, had been given a mini-bike for his twelfth birthday.  You found him riding his bike on the Salesians grounds and told him that he would need to seek permission from you in future. Obedient to what you told him, on the next occasion he wanted to ride his bike there he sought you out to ask for permission.  You asked him into your room.  When there alone with him, you first put your hands on his thighs over his clothes then undid his pants and with one hand fondled his genitals, and with the other hand rubbed his penis and also moved one hand to his anus. 

5I regard as a serious aspect of this offence that you contrived to have R attend your room where you would be alone with him, misusing your position of respect or authority to attract his obedience.  To the extent you contrived to have him seek you out in the future, this was not merely a spontaneous or impulsive act, although I do not find that you specifically planned to sexually assault him on such an occasion.  This occurred on a single occasion, presumably because
R chose to avoid it occurring again over gaining permission to ride his bike there. 

6Charge 2 is based on events on 1981 against L, a student at Rupertswood. 
He was in Year 7 and you were his teacher.  He was about 12 years old and you were aged 28 or 29.  He was struggling with his schoolwork and on this occasion you stood behind him while he was seated in class, leaned forward putting both your hands on his thighs over his pants and then rubbed your genital area though your clothes and his on his shoulder. He was uncomfortable with this, and tried to push backwards.  You took a step back but with others in the class present, you used words ostensibly encouraging him with his work, but capable of double-meaning, and he responded that he did not understand.  You then moved forward and again pressed against him and rubbed your face against his cheek, leaning over him.  You then said he must wait back for you to talk to him at recess, and after everyone else had left the classroom, you suggested an obscene manner of playing with his biscuits.  He was shocked but then you knelt down in front of him, grabbed his arms and said words to the effect that you had a lot of faith in him and knew he could do this.  You then undid his pants; he dropped his biscuits, hit you, and ran out of the room. This charge is brought as a representative charge of the two aspects of your indecent assault of him on that occasion.  I regard as serious that you brazenly spoke to him with double meaning in front of the whole class, then abused your authority as his teacher to get him alone for further indecent conduct.

7Charge 3 arises from your actions towards another boy, RB, at Rupertswood.  He was a boarder aged about 15 or 16 at the time of this incident in 1981. 
You were coach of the football team, and had driven a school bus with some students including RB to Melbourne one weekend to watch a game of football. 

8There had been an incident in which he was rowdy on the bus, for which you disciplined him at the time.  At a later point, you approached him and asked him to come and discuss that incident.  It was between 7 and 7.30 pm and he had stayed back to mop the floor as part of his chores.  You took him to where the religious fathers and brothers lived at the time, took him up the staircase to one of the rooms then left for a short time and returned with a black strap in your hands. You ordered him to pull down his strides and to bend over the bed.  He obeyed, and you hit him across his bare buttocks four times then told him not to move and then he felt something pushing against his anus and realised it was your erect penis.  Your force and weight pinned him against the bed which was painful for him, and he was in fear and shock and cried, not knowing what to do.  After a while, you moved away from him and told him to pull his pants up and sit on the bed.  You then told him that if he told anyone about what had happened, he would not be believed and he would be expelled from the school.

9I regard this incident as particularly serious, as you not only took RB to a secluded place where you had control and where your actions could not be seen, and where he had no recourse for help as this was an overnight excursion, but it seems you used corporal punishment as a form of or prelude to your sexual stimulation.  Further, you threatened your victim against telling anyone about what had happened in a manner directed to his vulnerability, telling him first he would not be believed and secondly that he would be expelled from the school if he told anyone.

10I regard those threats as an aggravating factor and also as evidence that you recognised, at the time, that what you had done was wrong, and you were further abusing your power over this student to try to avoid your wrongdoing being discovered.

11Charges 4 and 5 were both committed against another boy, B, who was a boarder at Rupertswood.  The first such incident occurred in the second half of 1982 when he was aged about 13.  He was in the sacristy putting on his altar boy robe.  You approached him from behind, put your arms around him and then grabbed his penis and testicles and fondled them over his robe, at the same time pushing yourself against him to the extent that he could feel your erect penis against the middle of his back.

12The second offence against him occurred during the following year when he was in Year 8.  You asked him to help clean and prepare the school hall for an upcoming event and while doing that, you approached him and sniffed his neck, telling him there were different types of love in the world, and as you talked to him, you rubbed yourself against his leg and he could feel your erect penis through his pants. While doing this, you put your hand down the front of his pants.  He thought you were searching for cigarettes which you had originally discussed with him, but you put your hand under his underwear and fondled his genitals. 

13The first of these offences against B involved use of a religious practice to gain access to this boy for your gratification, although the touching was limited to be over clothes.  The second instance seems more opportunistic, but reflects ongoing sexual interest in the same boy and some manipulation of a boy under your control with talk of topics that might have been innocent but your actions reflect that they were not. 

14Charge 6 arises from your behaviour towards another boy, M, who was also a boarder at Rupertswood.  During his first year there, you were his homeroom teacher and the following year, you were the supervisor of his dormitory.  In his second year there, 1983, he was aged about 14 or 15 and you were aged
30 or 31.  One night, when he was asleep in the dormitory, he was awoken by a hand touching him inside his pyjama pants and rubbing his penis.  He opened his eyes and saw you next to the bed with your hand under the doona, and that at the same time you had your other hand rubbing your own genitals over your pants.  He rolled away, causing you to take your hand away and that ended the assault.

15I regard this incident as the most crude abuse of your role; that is, while supervisor of this dormitory, you sought out a boy asleep in bed in that dormitory, apparently for your own sexual gratification. 

16I do not have any information about when any of this incidents were first reported, but I infer that it was not until many years later.  It is clear from some other evidence that they had been reported by 2005. 

17Each of the five victims, and the father of one of them, has provided a Victim Impact Statement.  One was read aloud by its author, and the prosecutor read another, but those who wrote the other statements requested that they not be read aloud.  I shall therefore not repeat the individual personal details nor the distress that each reveals.

18Each of these Victim Impact Statements, as was evident from those which were read aloud, provides a moving account of that man's perception of the impact of your offending on him.  It is clear that the passage of time has not relieved any of them of the burden or significance of the impact of your offending on them.  Each is, of course, different, but there are some telling common themes, from their sense of guilt and self-doubt as to why this had happened to them; for some, based on their Catholic teaching that this was dirty or even evil, reluctance to attend school for fearing of having to see you and either have the conduct repeated or being reminded of what had occurred, to fear of not being believed if they told their parents.

19Some describe their awareness of what their parents had sacrificed to pay for them to attend his private school, and the disappointment that would follow in letting their parents down, or in one instance, apparently, confrontation with his father leading to punishment and having to leave school altogether. Every one of them conveys a strong sense that his education suffered and was ultimately cut short as a result, and each has suffered from realising that he might have achieved more in life, whether through education or less emotional or psychological instability.

20The Victim Impact Statements in this case resound with the themes expressed by Vincent JA in 2006 in the case of DPP v Toomey:

"It is well to bear in mind that the rehabilitation of the victims of sexual abuse may often be more difficult to achieve than that of the perpetrator.  Frequently the damage will be profound and a long time will pass before it can be addressed at all.  In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.”

21His Honour went on to say that:

"The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly".

22I must assess both the objective and subjective seriousness of your offending behaviour in each instance.  Objectively, all of these incidents clearly involved serious breaches of trust by you towards both your direct victims and their families.  Adolescent boys are generally at a vulnerable stage of life insofar as sexual activity or experimentation is concerned.  You may have been relatively immature sexually yourself, but you were not only of adult age but as a priest carried a level of respect and authority with each of these boys and, they knew, with their families. You were also a teacher at the school of all but the first of them, and that role carries a further level of authority and of trust.  Further, where the boys were boarders, they were without access to the immediate support or comfort of family, or assistance had they dared reveal what had occurred, and the trust placed in the school and its teachers is in my view even greater with boarders.

23In assessing the subjective seriousness of your role in each offence, I have already mentioned some features on each charge, and will not repeat them. 
As you have been reluctant to acknowledge these offences, it is more difficult to assess whether there were any subjectively ameliorating aspects.  I am told that you subsequently suffered serious anxiety and depression, and indeed in early 1987 were admitted to hospital twice for psychiatric treatment.  However, it is not suggested that your mental health condition contributed to your offending, nor that it resulted from your offending. 

24I find that the circumstances of each of these offences was serious for reasons already stated, but I do not place any of them in the most serious of instances for such offences.  That is after considering and reading many other cases.

25As was stated by Vincent JA in Toomey's case, “it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour through the sentences imposed on perpetrators.  They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.”

26The most important sentencing factors must be community denunciation, general deterrence and just punishment.

27You have pleaded guilty to these charges and are entitled to considerable benefit from the utilitarian value of saving the community the time and cost of a trial, and sparing your victims from having to give evidence at a trial in front of a jury. 

28I was urged to find that you pleaded guilty at a reasonably early stage. 
I note that when interviewed by police in December 2014, you denied all of this offending, and maintained that approach through two Committal Mentions, and the first days of a disputed committal hearing. Two of the complainants had been fully cross-examined, and it was during the cross-examination of the third that your lawyer asked for the matter to be stood down, and the following day you indicated an intention to plead guilty to these charges. I do not accept that this course can be described as an “early” plea of guilty, but it nevertheless does attract significant utilitarian value in not only saving the time and cost of a trial, or perhaps one or more trials, but also in saving your victims having to give evidence before a jury, and to relive these events under what would have been likely to have been even more stressful circumstances.

29Your counsel described you having come to the realisation when you had heard some of the evidence at the committal hearing, that you had caused serious and long term harm to these five victims and to their families.  I am not convinced that you have fully accepted your responsibility for these offences given that when assessed by Dr Danny Sullivan, you admitted only to having assaulted these boys and not the sexual aspects of the offences. However, Dr Sullivan says that you confirmed that in pleading guilty to the charges, you did know that you were accepting all elements of the offending and accepting the description of events as set out in the prosecution opening. 

30A plea of guilty is often a reflection of remorse in the offender.  I accept that you feel some genuine remorse for the suffering of your victims as a result of your actions, although from my perception, it is outweighed by your regret for the consequences to yourself personally.  In particular, your foremost concern seems to be that your own mental health condition - albeit, not related to this offending at the time - is recognised.  Indeed, you raised that at the outset of the arraignment process, when you were called upon to answer whether you pleaded guilty or not guilty.

31I have said, so far as your pleas of guilty are concerned, and for the reasons
I have given, and with the qualifications I have expressed, I have reduced your sentences to take these factors into account.  I shall tell you after I have imposed sentence what the sentences would have been had you not pleaded guilty but been found guilty of each of these charges after a trial.

32I turn now to your personal circumstances. 

33You will turn 65 years of age this month.  You were born in a family where your parents were Dutch migrants who raised you and your two younger siblings in a devout Catholic environment.  Your parents were hard working, supporting and nurturing.  You were born in Frankston, and grew up in rural Victoria where your father worked as dairy farmer, and you regularly assisted him with duties on the dairy farm.  This led you to a lifelong attachment to and interest in the care of animals.

34After some years at a state primary school, where you missed time due to multiple childhood illnesses, and during that time were educated at home by your mother, you then attended a catholic primary school and for your secondary schooling were a boarder at Rupertswood College in Sunbury. You completed matriculation in 1969 and then, aged 17, you followed what had been considered for some years your likely religious vocation.  You went straight from school to the Salesian seminary in Lysterfield, and have lived in Salesian communities ever since. 

35After the first year of the program for noviciates, which included teacher training, you were placed as a teacher in a Tasmanian college teaching upper primary grade students in maths.  After two years, you were transferred to New South Wales where you taught Year 7 and Year 8 students, supervised dormitories and coached cricket and football.  As that school catered for neglected and abandoned teenagers, many from disadvantaged backgrounds, you found that role especially testing particularly given your limited training as a teaching.

36From 1976 to 1979, you undertook theological studies which culminated in a Bachelor of Theology degree.  You were ordained as a priest in May 1979.  Over the course of that study, you undertook a supervisory role with youths attending the Salesian Youth Centre in Oakleigh where you, again, found teenager behaviour difficult and demanding.  It was during that period that your offence under Charge 1 occurred.

37After your ordination, you returned to New South Wales to BoysTown. Again, the majority of the students were challenging and you found the teaching duties difficult.  In 1981, you were to transferred to Salesian College, Sunbury - that is Rupertswood - and taught there between 1981 and 1986.  You taught maths, science and religious education at the Year 7 and 8 levels there and also coached cricket and football, undertook ground maintenance, took boarders to major sporting events on weekends, conducted religious services at Sunday mass, and had a role in out of hours supervision as well as correcting school work.  On Saturday evenings, you apparently ran the movie projector for the benefit of the boarders, and I am told that you were essentially working seven days a week with a full time teaching load and a variety of other duties, and were ill-equipped to maintain that pressure.

38By the end of 1986, you were suffering stress and anxiety and feeling “burnt out” which you or your doctors have attributed to your having been assigned by your order to teaching without adequate training, in onerous conditions, exposed at times to particularly difficult students, and with extensive other duties.  It seems that your personality was probably unsuited to coping with these particular stressors, and indeed with teaching teenage boys.  In early 1987, you required hospitalisation for treatment for depression and anxiety.  That occurred at the Mercy Hospital.  You required re-admission there soon after a first discharge.  I take that to reflect a serious degree of a mental health condition.  

39You never returned to teaching after that.  Once discharged from the more intense psychiatric treatment, you were transferred to a college in Lysterfield, in a farm environment where you spent most of 1987.

40In late 1987, you returned to the Salesian College in Oakleigh on light duties, and worked there in an administrative capacity until 1993 when you took sabbatical leave.  Since 1994, you have been a permanent resident at Lysterfield, where you have predominantly managed and maintained, apparently successfully, the rural property, engaged in a number of projects, and occasionally have been a relieving priest at other communities.

41You were treated by a psychiatrist, Associate Professor Tan, for some 20 years, and after his retirement, since 2014 you have been treated by Dr David Baron, a consultant psychiatrist.  Doctor Baron has reported that you suffer from anxiety and depression which, at this point, is related to the allegations about your treatment of school boys in the past. Doctor Baron describes your personality as not being robust in a masculine sense, and he says you acknowledge that you should never have been a school teacher.  Doctor Baron has maintained supportive counselling of you and prescription of low dose of an antidepressant and anxiolytic.  He did not consider there was a connection between your offending and the psychiatric diagnosis in that the offending did not result from the anxiety and depression. 

42He considers your current anxiety and depression is related to the situation in which you find yourself, including your anxiety when he last saw you, about the unknown of being in prison, and knowing that on your release, you will not be returning to an institutional religious setting, which is all you have known living circumstances since you were aged 17. He notes that your personality is less than robust, which will not equip you well with harsh treatment, but he was not of the opinion that you would find incarceration itself any more difficult than other prisoners would.

43You were assessed by Dr Danny Sullivan, an experienced consultant forensic psychiatrist, in March of this year for the purposes of a then anticipated sentencing hearing.  Dr Sullivan took a detailed history of your background circumstances, and psychiatric and medical history which I shall not repeat. 
In relation to this offending, you told him that you first knew of any complaints in 2005, when you were required to be interviewed for processes within the Catholic Church, and you were told after that they concluded that you “had probably done it”. From that time, you were not permitted to engage in parish ministry any more.  Dr Sullivan reports that you acknowledged the physical assaults on the children and were regretful of this. However, you were far more reluctant to discuss the sexual matters.  You discussed them in minimising terms but you were clearly so uncomfortable that the discussion with him achieved little progress. Nevertheless, he was satisfied that you appreciated that in pleading guilty, you were accepting responsibility for these actions and you were able to talk about this.  You acknowledged that your offending had breached the trust of the youths and their parents, and that in pleading guilty, you are accepting everything that was set out in the statement of charges.  You expressed to him contrition for what happened to the children.

44Dr Sullivan relates that in an assessment in 2005, again as part of internal processes within the Catholic Church dealing with complaints of sexual assault of boys, you had openly acknowledged that you find some boys attractive to look at, and admire their physique, and had, sometimes, experienced erections in response to the attractiveness of 13 to 15-year-old boys, but you denied having touched any of them and maintained that you would never cross the line.  You also acknowledged sexual attraction to adult women.  You felt some social mannerisms might have been misinterpreted, and also acknowledged that you had “hit plenty of kids”. You were found to have significant interpersonal difficulties but there was an absence of malicious intent. 

45Dr Sullivan's opinion is that you suffered a major depressive episode of moderate severity, and features of anxiety but those can be subsumed within a primary diagnosis of Depression.  He said you would not clearly satisfy a diagnosis of personality disorder, but you do exhibit some vulnerabilities.  He considered that your symptoms are currently in partial remission, but have recurred slightly with the current court case.  He did not consider that this condition had contributed to your offending.

46His opinion was that while a religious order may have offered some protection for you from the vicissitudes of life, and from having to manage interpersonal situations as a peer, rather than from a position of authority, in other senses it has reduced your opportunities for psycho-social maturation and for open exploration of your sexuality. The cloistered and inhibited environment has likely perpetuated your immaturity, and inhibited social skills, given that you entered the order in your late teens. He considered sexual aspects of these charges are difficult to comment upon due to repressed sexuality, and noted that this is particularly common amongst Catholic clergy members, and likely reflects the powerful conditioning of lifelong religious beliefs which do not accommodate open expressions of sexuality. His opinion wa that you would not clearly satisfy a diagnosis of paedophilia.

47Dr Sullivan's opinion was that should you be imprisoned, you will struggle due to your limited life experience outside the church, and he expressed concern that you would struggle to adapt to prison.  He recommended you be assessed for offence specific treatment through the offending behaviour programs and the sex offender assessment and treatment service.  He considered that may assist you despite the fact that you are unlikely to ever be in a position to repeat such offending.

48You suffer from some other medical conditions, including diabetes mellitus, hypertension and high cholesterol, for all of which you take prescribed medication.  You apparently have had a lifelong heart murmur which did not require medical intervention.  You also have suffered a condition that has impaired the sight in your right eye, and a medical report from an eye specialist earlier this year indicates that ongoing treatment for your right eye condition will be required to retain the best vision. I take into account that ideally, you require ongoing treatment for all of these conditions.

49I accept that your depression and other medical conditions, while not severe, are likely to make your experience of imprisonment overall more difficult, and entitle you to a modest amount of leniency for that reason. 

50You have no prior criminal history, and none since the events the subject of these charges. 

51I have read a number of character references from people who have known you for many years.  Some relate to your time teaching at the Salesian College - from a teacher there describing you as a dedicated and approachable member of the teaching staff, to another from a student there during part of the period of your offending, which expresses surprise at the allegations and not having seen or suspected you of mistreatment of any other boys.

52There are several references which describe your involvement in many good works, including using your skills in animal farming, and using those to create a program to raise funds for Salesian Overseas Missions.  Your very strong work ethic is evident and I accept that you have spent the last 30 years in responsible, and indeed much worthy activity.  You have never returned to teaching or other direct supervision of adolescent boys, although at times you have been assigned to conduct services and some relieving parish work. 

53All of this material indicates that apart from the offences for which I am sentencing you, you are of otherwise good character.  That is not to say that the offending itself was out of character, because these charges show not one isolated occasion, but an ongoing inclination to this type of offending and against different boys although by no means constant nor frequent.  As has been discussed in many other cases, and as was the situation in so many of those cases, your previous good character was an aspect of how you were able to be in a position to commit these offences.  Nevertheless, as the High Court made clear in Ryan's case, I must take your otherwise good character into account to your credit, as I do the factor that there is no offending alleged since - that is, over the last 33 to 34 years.

54However your other good character, while to be taken to your credit, does not in my view in the circumstances of this case significantly erode the need for community denunciation, just punishment and general deterrence as the most important sentencing purposes.  The fact that there has been no offending of this or any other nature for more than the last 30 years does indicate to me that the risk of you reoffending in the future is very low, and that is supported by
Dr Sullivan's opinion.

55I am satisfied that protection of the public is not of high need in a practical sense in this case, although it is mandated for some of the charges under s.6D of the Sentencing Act. 

56There has been a delay of more than 30 years in your offending coming before this court.  It seems to me that delay has taken a far greater toll on your victims than on you.  Indeed, far from having caused you stress in anticipation of possible discovery, it seems that you either did not recognise or did not recall this offending behaviour until some days into a contested Committal hearing, although from the history you gave to Dr Sullivan, you have been aware since 2005 of these complaints so to that extent they have hung over you.  You have continued to be respected in the meantime in your position as a priest for decades, and that is at least up until 2005. 

57As has been noted by appeal courts on several occasions, the lapse of time since commission of these types of offences is not unusual, as victims are often very slow to come forward for a number of reasons, and even though the offender may have led a blameless life in the meantime, that cannot be regarded as so mitigatory as to outweigh the importance of general deterrence and denunciation of the offending conduct of this nature.

58I do take into account that you now stand to have to serve time in prison at an older age, and in poorer health, than you might have had the cases come to court much earlier.

59I have taken into account that you have already suffered some fall from standing and position amongst fellow priests and people who know you, and there will inevitably be some extra burden on you from likely publicity about these charges.  I am told that following these convictions, processes will commence which will laicise you; that is, you will cease to be a priest.

60You will not be able to return to live with the Salesian Order which you effectively entered straight from school.  You have no private property or financial resources to await you on your release from prison and, indeed, no experience of fending for yourself in the general population in the general community. I note that by the time of your release, you will have turned 65 and become eligible for an aged pension but you have no experience, as I have said, in fending for yourself in the world outside your religious order. I have taken into account that this likely to weigh on your mind and to some extent make your time in prison more burdensome than for someone else who knows more of what to expect when they are released.

61As set out in the case of Stalio v The Queen, I must have regard to current sentencing practices, meaning sentencing practices at the time of imposing this sentence.  That means I must take into account the need to convey, in particular, current community attitude of abhorrence of sexual offences against children, including where the offender has been in a particular position of trust such as through religious standing, or as a teacher or other person in authority over the child.

62Present sentencing practices, however, must be applied in light of the maximum penalty applicable to the charge at the time it was committed - in this case, five years imprisonment, and taking into account reductions from that maximum on each charge having regard to the pleas of guilty, otherwise good character, expression of at least some remorse and my assessment that these are not instances of the most serious level for such offences.

63I have read and had regard to all of the cases that were provided by both sides in this case to me, and some others, and taken into account the actual sentences imposed in those cases, although no two cases could ever be identical and there are always some different features in each.

64Under provisions of the Sentencing Act, you fall to be sentenced as a serious sex offender on Charges 3 to 6 inclusive.  This means that the principal purpose of such sentence must be protection of the public, although as I have said, I do not consider that in practical terms you pose a significant risk to the public for the future. I am satisfied that a disproportionate sentence to achieve this purpose is not required, and indeed, it was not urged by the prosecution. 

65I am also required to have regard to the provisions that make the sentence on Charge 3 and the following charges cumulative on each other and the first two sentences, except to the extent that I order otherwise. The principle of totality still applies, but is modified by these provisions.  In my view, there must be adequate recognition by cumulation that offences were committed against five separate individuals, and a small further amount of cumulation to reflect that as a serious sex offender, there had, by that time, been prior relevant offending; namely, Charges 1 and 2.

66As was acknowledged by your lawyer on your behalf, sentencing requirements mean that no sentence other than some immediate imprisonment would be sufficient to satisfy principles requiring denunciation, just punishment and general deterrence.  It was submitted on your behalf that these factors could be achieved by the imposition of a sentence which is partly suspended.

67The age of the charges means that a suspended or partly suspended sentence is within the court’s powers, as it would not be had the offences been committed recently.  However, it could only be imposed if the total effective sentence does not exceed three years.  The prosecution's position was that some immediate imprisonment was required, but a partly suspended sentence was within appropriate sentencing range, which I took to mean that the total effective sentence, if no more than 36 months or three years, would not be outside range.

68I have considered whether to impose a partially suspended sentence or a head sentence with a minimum period before you could be eligible for parole.  I do not expect you to require close supervision on your release, insofar as avoiding further offending is concerned, but parole, if it is granted, would provide some more structure for you, with possible assistance in making some living arrangements, and I have decided that in all the circumstances of your case, that is the most appropriate sentence structure.

69Would you stand now please.

70Francis Petris De Dood, I now come to pass sentence on you.  On each of the charges, you are convicted and you are sentenced as follows.

71On Charge 1, imprisonment for 14 months.

72On Charge 2, imprisonment for 15 months.

73On Charge 3, imprisonment for 18 months.  That will be the base sentence.

74On Charge 4, imprisonment for 10 months.

75On Charge 5, imprisonment for 14 months.

76On Charge 6, imprisonment for 15 months.

77I declare that on each of Charges 3, 4, 5 and 6, you are sentenced a serious sex offender and I direct that that be recorded in court records.

78I direct that four months of the sentences on each of Charges 1 and 2 be served cumulatively on each other and on Charge 3.

79I direct that all but two months on Charge 4, three months on Charge 5 and five months on Charge 6 be served concurrently with the sentences on Charges 1, 2 and 3 and on each other.

80That creates a total effective sentence of 36 months imprisonment.  I fix a minimum period of 20 months before you are eligible for parole.  I declare ten days of pre-sentence detention as reckoned served. 
I interpolate, I will check that - that was my calculation but if there is a difference, that will be altered.  That is the time you have been in custody since I remanded you over a week ago.  I direct that that be recorded, that declaration of pre-sentence detention be recorded in court records and it will be deducted administratively.

81I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty, but been found guilty after a trial on each of these offences, the total effective sentence would have been three years nine months' imprisonment with a non-parole period of two years and eight months.

82Pursuant to the provisions of the Sex Offenders Registration Act, you are to be registered and your reporting period will be for life.  My Associate will shortly bring to you documents explaining your obligations and what is required for that registration.  At this stage, you will be asked to sign an acknowledgement that you have received these documents.

83I was asked to make an order for a forensic sample to be taken from you pursuant to s.464ZF of the Sentencing Act; that is to enable your DNA to be placed on the state's database.  It was not opposed and given the seriousness and nature of the offending, I have decided to make that order.  I limit it to an order for saliva, that is a scraping from the inside of the mouth.  I warn you, as I must, that if you resist the taking of that sample, police or authorised officers are entitled to use reasonable force, but as it involves a cotton bud type swab rubbed on the inside of your mouth it is not too intrusive and unless you resist, as I say, no force will be required.

84You can take a seat now Mr De Dood while I check some matters and the paperwork is completed.  Now first, was the pre-sentence detention correct or have I got that wrong?

85MR FISHER:  Wrong by one day.  It should be 11, not ten.

86HER HONOUR:  Eleven.

87MR FISHER:  Yes, 11 not including today.

88HER HONOUR:  Sorry.  All right, obviously it should be - if it's 11, I amend that.

89MR FISHER:  Yes.  Excuse me, thanks for that.  Could I just ask Your Honour to repeat the orders for cumulation please?

90HER HONOUR:  Yes, well because it's only the latter ones that are - I have to order concurrency for the latter ones.

91MR FISHER:  Yes.

92HER HONOUR:  Except, to a certain extent, cumuluation in relation to the first two because number three's the base sentence.

93MR FISHER:  Yes, I understand that.

94HER HONOUR:  What I directed was four months of the sentences on each of Charges 1 and 2 be served cumulatively on each other and on Charge 3.

95MR FISHER:  Yes.

96HER HONOUR:  Then I directed that all but two months on Charge 4, three months on Charge 5 and five months on Charge 6 be served be concurrently on each other and with the sentences on Charges 1, 2 and 3.  Now if you want that translated it means that on Charge 4 there's two months cumulation or eight months concurrency.

97MR FISHER:  Yes.

98HER HONOUR:  On Charge 5, there is 11 months concurrency, three months cumulation and on Charge 6, five months cumulation, ten months concurrency.

99MR FISHER:  Yes.

100HER HONOUR:  And I have checked it but I stand to be corrected ‑ ‑ ‑ 

101MR FISHER:  No I've just checked it ‑ ‑ ‑

102HER HONOUR:  if the arithmetic doesn’t work.

103MR FISHER:  ‑ ‑ ‑ and so has my instructor.  There's no issue with that, thank you.

104HER HONOUR:  All right.  Mr Azzopardi, you've checked the arithmetic also?

105MR AZZOPARDI:  Yes, I have, Your Honour.

106HER HONOUR:  Yes, all right.

107MR AZZOPARDI:  Your Honour, there's one matter that Mr De Dood wishes me to raise with the court.  There's some custody management issues, there seems to be a lack of the medication concerning his heart condition.  The blood pressure medication that's meant to be provided to him at least twice a day, he's concerned that he's not receiving it.  If that could be recorded in the gaol order, I'd be much grateful.

108In addition to that ‑ ‑ ‑

109HER HONOUR:  Well, just wait a moment.

110MR AZZOPARDI:  All right then.

111HER HONOUR:  Is that how it was set out in the ‑ ‑ ‑

112MR AZZOPARDI:  Yes, Your Honour.

113HER HONOUR:  ‑ ‑ ‑ in the medical history ‑ ‑ ‑

114MR AZZOPARDI:  That's correct.

115HER HONOUR:  ‑ ‑ ‑ that it was twice a day?

116MR AZZOPARDI:  Yes.  And he has concerns now that he's not receiving that.

117HER HONOUR:  All right.  He ought to be assessed - that was for assistance for immediate matters.

118MR AZZOPARDI:  Yes.

119HER HONOUR:  But I would have assumed by now he has seen a medical practitioner.

120MR AZZOPARDI:  He has, Your Honour.

121HER HONOUR:  A healthcare practitioner and they have to also consider those matters.

122MR AZZOPARDI:  Yes, Your Honour.  As I understand it, he's already attended - been at - has attended upon the medical practitioner.  This is his concern,
I will follow this up with the prison.

123HER HONOUR:  He's not - all right.

124MR AZZOPARDI:  But he'd like me to raise it now.

125HER HONOUR:  So what you want is a custody note?

126MR AZZOPARDI:  Yes.

127HER HONOUR:  A reminder that he's prescribed medication.

128MR AZZOPARDI:  Yes, Your Honour.

129HER HONOUR:  It should be available to him.

130MR AZZOPARDI:  Thank you, Your Honour.  The balance ‑ ‑ ‑

131HER HONOUR:  Certainly, I'll add that.  This is not meant to be a deprivation of access to appropriate medical treatment. 

132Now, we still have to deal with the documentation for the Sex Offender Registration Act.  I've just signed the front part of the notice, the reporting is for life.  Obviously he doesn't have to report until after release from custody and that will be within seven days after that, and no doubt that he will receive a reminder of that before his release.

133MR AZZOPARDI:  Yes.

134HER HONOUR:  Yes.  I'll have a copy of the documentation shown to you,
Mr Azzopardi, and to Mr Fisher then my Associate will approach
Mr De Dood for him to sign it acknowledgement of receiving it

135MR AZZOPARDI:  Your Honour, would you like me to accompany your Associate to the dock?

136HER HONOUR:  That would be useful, thank you.  It's just got to be copied.  This delay is never easy for anyone but I have to make sure the order is entered correctly for custody purposes.  The issue is that the computer system still has difficulty with the sentences that are to be cumulative unless directed concurrent and at the moment, what the system - all the system will allow my associate to enter is the concurrency on Charges 4, 5 and 6 with each - the degree of concurrency on each count with Charges 4, 5 and 6 on each other and upon Charge 3 but it's my view that it should specify as to Charges 1 and 2 also.  But it comes up with the correct total.  Do counsel want to be heard on that? 
I announced it to be, except for those ‑ ‑ ‑

137MR FISHER:  You did.

138HER HONOUR:  ‑ ‑ ‑ small amounts concurrent.

139MR FISHER:  That's right.

140HER HONOUR:  With one and two as well as three, four, five and six.

141MR FISHER:  Yes.

142HER HONOUR:  But apparently the system won't digest that at the moment. 

143MR FISHER:  Yes, well of course the wording of Your Honour's sentence, all the words will be set out in the gaol order I assume. 

144HER HONOUR:  Well, the problem is the order that I'm struggling - or the computer has to produce become the formal record of the court orders.

145MR FISHER:  Yes.

146HER HONOUR:  Although transcript will say what I said.

147MR FISHER:  Yes.

148HER HONOUR:  And I don't want it misunderstood.  I'm going to add an extra note, for informing - to clarify that issue.

149MR FISHER:  Yes.

150MR AZZOPARDI:  As Your Honour pleases.

151HER HONOUR:  Right, I've signed the orders.  I'll now ask that Mr De Dood be removed from the court, please.

152COUNSEL:  As Your Honour pleases.

153HER HONOUR:  Adjourn the court please until 2 o'clock in Bendigo.

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