Director of Public Prosecutions v Dedalus (a pseudonym)
[2023] VCC 131
•8 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON DEDALUS (a pseudonym) |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 January 2023 | |
DATE OF SENTENCE: | 8 February 2023 | |
CASE MAY BE CITED AS: | DPP v Dedalus (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 131 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Buggery – Course of conduct – Historical sexual offending against a child – Guilty verdict – Successful appeal to Court of Appeal – Retrial – Subsequent offending – Sentencing after retrial - ‘Current sentencing practices’
Legislation Cited: Crimes Act 1958 (Vic.); Sentencing Act 1991 (Vic.), s 5(2F).
Cases Cited: Scannell v The Queen [2014] VSCA 330; Cheung v The Queen (2001) 209 CLR 1; R v WEF [1998] 2 VR 385; DPP v Tullipan [2021] VSCA 191; Stalio v The Queen – [2012] VSCA 120; The Queen v AMP [2010] VSCA 48; R H McL v The Queen (2000) 74 ALJR 1319; [2000] HCA 46; R v Gilmore (1979) 1 A Crim R 416.
Sentence: 5 years and 6 months’ imprisonment; 3 years and 9 months non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Piggott | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | Stary Norton Halphen |
HIS HONOUR:
1Simon Dedalus,[1] on 18 October 2022, after a retrial largely conducted on pre-recorded evidence, you were found guilty by a jury of one charge of buggery contrary to s 68(1) of the Crimes Act 1958 as in operation at the relevant time, on a course of conduct basis.[2] The offence of buggery as it then stood carries a maximum penalty of 20 years’ imprisonment.
[1] A pseudonym.
[2] In Scannell v The Queen [2014] VSCA 330 at [22]-[23], Priest JA traced the history of the crime of buggery in Victoria. It was a crime from the time of settlement until 1981.
2You were initially found guilty of this offence by a different jury in a trial conducted before his Honour Judge Mason in August of 2019. In April 2020, his Honour sentenced you to a term of imprisonment of 6 years with a non-parole period of 4 years. On 7 December 2021, the Court of Appeal quashed this conviction, set aside the sentence imposed by his Honour Judge Mason, and ordered a retrial. The retrial was conducted before me in October 2022.
3It is now my role to sentence you for your offending following the retrial. The task of a sentencing judge following a jury verdict is clear: I am obliged to determine the factual basis upon which you are to be sentenced; the facts I find must not be inconsistent with the jury's verdict; and any adverse findings must be made to the criminal standard.[3]
[3] Cheung v The Queen (2001) 209 CLR 1 at 19 [38].
4The circumstances of your offending are described in the Summary of Prosecution Opening for Trial dated 8 March 2022 (‘the Opening’). The Opening was largely based on the evidence given by the victim of your offending (who is referred to by the pseudonym ‘Chandler’ in this judgement to protect his identity as a child victim of sexual offending) in a witness statement, a ‘VARE interview’ and at special hearings before this Court on 6 December 2018 and 17 May 2019. This evidence was played to the jury and I sentence you on the basis that the jury accepted that Chandler’s evidence was credible and reliable. The following summary is drawn from the Opening.
Background
5You were born in August 1945 and are currently 77 years old. At the time of the offending, which took place between May 1978 and December 1979, you were aged from 32 to 34.
6Chandler was born in 1968. At the time of the offending he was aged from 10 to 11. Chandler lived with his mother and his brother 500 meters down the road from you in a rural Victorian town.
7You met Chandler between 1977 and 1978 through your involvement with the local scout group, of which he was a member. Although the timeline is not precisely clear, at some stage you became scout leader of the scout group, and assumed a position of trust and authority over Chandler.
8You supported Chandler in his desire to collect scout badges. You encouraged him to collect badges, helped him develop the skills to obtain them, and, rather than presenting the badges at a scout ceremony in the usual way, handed them to him yourself at his family home. On occasion, you would give Chandler lifts to and from the scout hall in your car.
9Through this arrangement, you befriended Chandler’s mother and subsequently engaged in a romantic relationship with her. This afforded you access to Chandler outside the setting of the scout group.
10At some point, you suggested to Chandler that the two of you should play tennis together, and, with the permission of his mother, you began to regularly drive to a remote local tennis court to play tennis.
11In his statement to the police dated 4 October 2016, Chandler described this arrangement:
‘I think I ended up asking my mother if that was O. K. and obviously she said, "Yes," him being the Scout leader, it was a good thing for him to do. And especially since I was - I didn't have a father around, and it's a good thing to do go and be around an adult male and spend that time and play some tennis.’[4]
[4] Depositions page 54.
12You would drive past a tennis court that was closer to your house on the way to a more remote court. Chandler would ‘wonder why we used to drive past it’ and even suggested to you that you both should play there, but you would instead drive to the more remote court via a back road. He observed that you would regularly look up at a house near to the tennis courts to see if there was anyone around.
13At some time in 1978 or 1979, when Chandler was aged approximately 10, you collected him from his house and drove to the court to play tennis for the first time. At the conclusion of the game, you told him to go into a nearby equipment shed and wait for you.
14When you entered the shed, you told Chandler to stand and face the wall opposite the doorway. You closed the door behind you, and told him to turn around. When he turned around, he saw that you were leaning on the door frame with your pants undone and partially pulled down. You were masturbating. Chandler recalls that this was the first time he had seen a grown man’s erect penis. Neither of you said anything, and Chandler eventually turned around to face the wall again. These facts were elicited in the retrial as an uncharged act for which you are not to be sentenced.
Circumstances of offending
15On an occasion subsequent to the one just described, you again collected Chandler from his house and took him in your car to play tennis.
16You and Chandler played tennis against each other and, at the conclusion of the game, you once again told him to go into the equipment shed and wait for you.
17When you entered the shed on this occasion, you told him to stand and face the wall in the same spot opposite the doorway. You closed the door of the shed and told Chandler to remove his shoes, pants and underwear. You instructed Chandler that his pants should not touch the floor and be dirtied by the dusty concrete, and you folded them and put them aside. You also directed him to stand on his shoes to prevent his socks from becoming dirty.
18You then instructed Chandler to spread his feet apart, hold onto the ledge in front of him and not to turn around. You stood behind him, told him to ‘stay still’, and penetrated his anus with your penis, causing him to cry. Chandler, who was in considerable pain, recalled asking you simply ‘Why?’. You replied, ‘This is what men do’.[5]
[5] VARE, page 36.
19Thus began a ritual pattern of abuse that you perpetrated upon Chandler. He recalls you collecting him from his house, driving to the tennis courts where you played tennis and, after the game, you penetrating his anus with your penis in the equipment shed at the tennis court ‘many times’.[6] Chandler explained that this happened at ‘the absolute bare minimum, seven to eight times and I’m underestimating there’.[7] You are to be sentenced on the basis that you buggered Chandler at least seven times. This is my determination of the course of conduct in which you engaged and by reference to which you are to be sentenced.[8]
[6] VARE, page 29.
[7] VARE, page 29.
[8] Sentencing Act 1991 (Vic.), s 5(2F).
20Chandler always stood in the same position in the shed, and you would penetrate him until you ejaculated on the floor. After you ejaculated, you would instruct him to clean the concrete floor using dirt. Chandler described how you taught him to conceal your ejaculate in a process that he said was akin to ‘learning a scout thing’.[9] You would also take pains to wipe blood and other fluids from Chandler’s anus and bottom area, and would inspect him to ensure that there was no visible evidence of your sexual offending upon him.
[9] VARE, page 39.
21After cleaning up, Chandler would go outside, and you would lock up the shed and then drive him back to his house. These incidents of you penetrating Chandler’s anus in the storage shed at the tennis court, taken together, amount to a course of conduct occurring throughout 1978-1979 (Charge 1 – Buggery).
End of Offending
22In 1979, Chandler and his mother and brother went to England to visit his mother's parents for three months. You were entrusted to care for Chandler’s family home and feed the family cat.
23Before Chandler left for England, you told him that you and he would not be playing tennis anymore. He was upset by this, and described it as feeling like a ‘breakup’. You did not offend against Chandler again after he returned from abroad.
Complaint and Investigation
24Chandler did not tell anyone about these events until 2014, 35 years later. In June 2014, he told his treating general practitioner that he had been sexually assaulted by you when he was a child. He said that you had anally raped him on a regular basis in 1978 and 1979.
25In late 2015 and early 2016, Chandler reported the offending to the Royal Commission into Institutional Responses to Child Sexual Abuse, and in June 2016 a senior police officer working for the Royal Commission referred the matter to Victoria Police for investigation.
26On 4 October 2016, Chandler made a video statement for police detailing the offending, and, after further investigation, you were interviewed by police in relation to this offending in December 2016.
27In that interview you confirmed that you met Chandler through your affiliation with the scout group, and that you had had an intimate relationship - albeit a limited one - with his mother. You denied, however, that you ever played tennis with Chandler, and you further denied ever masturbating in front of him or penetrating his anus with your penis.
Impact of Offending
28Chandler’s victim impact statement dated 24 September 2019 is in evidence before me. In this statement he speaks eloquently with great insight about the devastating impact that your sexual offending has had upon him. He describes how the ongoing harm from your abuse gradually came to define his life – impacting his education; destroying his trust in adult men; pushing him into a pattern of prolific drug abuse; and undoubtedly contributing to his long term diagnoses of extreme anxiety, depression and Post Traumatic Stress Disorder.
29Chandler states that he has been ‘unemployed or on a disability pension through most of my working life due to the anxiety and depression that I have as a result of this crime’.
30Chandler further states that he regularly wakes up screaming, which is horrible for him and also for his wife. He states that he has the same recurring nightmare in which he walks into the tennis shed and sees the spot where he was raped. This has recurred for decades and he wishes he could escape it.
Objective Gravity
31Plainly, the crime of buggery perpetrated against a child is a grave offence; the acts you performed against Chandler were of the utmost seriousness. Your offending is aggravated by the position of trust and responsibility you held in relation to Chandler as a scout leader and by virtue of your relationship with his mother.
32Chandler was entrusted into your care by his mother and your offending upon him represents a gross breach of the trust that was bestowed upon you. In addition, although it is impossible on the evidence before the court to determine with precision the number of occasions on which the buggery occurred, it is clear that you offended against Chandler over an extended period. The offending only ceased when his family left the country. I consider that in the circumstances, and having regard to the profound and ongoing effects on Chandler, your moral culpability for this offending is very significant.
Personal Circumstances
33I now turn to describe your personal circumstances.
34You were born in Melbourne in 1945 as the second youngest child in a sibship of four children. Your childhood was an impoverished and difficult one marked by dislocation, accommodation disruptions and schooling difficulties. Your parents separated when you were 7 years old and after the separation you did not see your father.
35You have reported to a psychologist that an older family friend attempted to sexually assault you when you were 12 years old.[10] You did not discuss this experience with your family.
[10] Psychological Assessment Report of Gina Cidoni dated 01.12.2022 (Psychological Report) [48].
36You left school at the age of 16 and worked in a variety of occupations throughout your adult life, as well as completing two years of national service in the army. Unfortunately, however, you suffered a back injury in 1981 which precluded you from further stable employment, and, after failed spinal surgery in 1983, you have been unable to work and have been in receipt of a Disability Support Pension.
37You have had three significant intimate relationships. You married your first wife in 1970 and the two of you had a daughter. The marriage ended in 1976, the family home was sold, and you moved to country Victoria.
38You met your second wife in 1979 and married in 1980 when she was pregnant with your first child. You have two sons by that marriage. The marriage ended in 1987 after you were charged with crimes of incest and indecent assault committed against your stepdaughter within that marriage.
39These sexual assaults covered a period of six years when your stepdaughter was aged between 10 and 15 and involved repeated and regular penetrative sex whilst forcibly restraining her. The conduct was discovered when the victim of your offending became pregnant and had an abortion.
40In August 1988, you pleaded guilty and were sentenced for 6 charges of indecent assault and 16 charges of incest by his Honour Judge Hassett of this Court to a three-year community-based order with a five year good behaviour bond. His Honour accepted in mitigation of sentence, that you had pleaded guilty, had no previous or subsequent convictions and that you were suffering from a psychiatric illness of paedophilia which, as his Honour also accepted, was susceptible to treatment. At the time of sentencing you were treated for paedophilia with antipsychotic medication and talking therapy. His Honour regarded your prospects of rehabilitation as high. On any view, given the gravity of the crimes you committed, I consider that the sentence imposed by Judge Hassett was very lenient.
41The offence for which you are to be sentenced today, which precedes the offending against your stepdaughter, was not known to his Honour Judge Hassett at the time he sentenced you in 1988. You are not to be punished again for that offending. The offending against your stepdaughter is relevant now in two respects: firstly, how it bears upon the need for specific deterrence; and secondly, what it reveals about your prospects of rehabilitation. I discuss these matters later in these reasons.
42Because the offending against Chandler occurred in 1978 and 1979, your offending against your stepdaughter does not constitute a ‘prior conviction’ for the purposes of the current sentence. It would only be a prior conviction if the conviction had been recorded prior to the acts that constitute the offending against Chandler.[11]
[11] See Freiberg, A, Fox and Freiberg’s Sentencing (3rd ed) at [5.15].
43S 5AA(1) of the Sentencing Act 1991 provides that, in sentencing an offender for a child sexual offence, the court must not have regard to the offender's lack of previous convictions if the offender’s lack of prior convictions was of assistance in the commission of the offence. Your counsel submitted that ‘there is no evidence’ that your lack of prior convictions was of assistance to you in the commission of the offences you perpetrated against Chandler, and, furthermore, the Crown does not seek to invoke this provision.[12] Accordingly, your lack of prior convictions will be treated in the typical manner as matter of mitigation.
[12] Defence Outline of Plea Submissions dated 15 January 2023 (Defence Submissions) [11].
44Your counsel concedes that your subsequent convictions do, however, bear on your prospects for rehabilitation and cause ‘some basis for reservation’.[13] It was submitted on your behalf, however, that you have committed no further offences since you were convicted for the offending against your stepdaughter in 1988 and this attests to your demonstrated ability to live a pro-social life in the community. Although psychologist Gina Cidoni concluded that your ‘overall risk of sexual recidivism is considered as moderate without any formal intervention’,[14] given your age and the fact that you have not reoffended in 35 years, I consider that your risk of re-offending upon release from prison is limited. Accordingly, the need for specific deterrence is significantly moderated in your case.
[13] Defence Submissions [17].
[14] Psychological Report [97]
45Furthermore, the character references tendered on your behalf suggest that, at least within the confines of your limited social life, you are generally well regarded.[15] On this basis I accept your counsel’s submission that your prospects for rehabilitation are ‘reasonably good’.[16]
[15] The Court received references from Ms Helena Apted dated 9 January 2023 and Mrs C. Jackson dated 11 January 2023.
[16] Defence Submissions [16].
46During the last decade you have lived alone in rental accommodation in Geelong. You currently have no contact with your siblings, either of your former wives, your daughter from your first marriage, your two sons from your second marriage, or your stepchildren.
Sentencing after a Retrial
47My sentencing discretion in this case is to be exercised in the context of your re-trial. You were sentenced in April 2020 by His Honour Judge Mason after your first trial in 2019. His Honour sentenced you to imprisonment for six years with a four year non-parole period. Before you were released on bail in December 2021 after your successful appeal, you had served 749 days in custody.[17]
[17] 27 November 2019 – 15 December 2021.
48The principles to be applied upon re-sentencing following a re-trial were stated by the High Court in R H McL v The Queen:[18]
‘Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare.’[19]
[18] R H McL v The Queen (2000) 74 ALJR 1319; [2000] HCA 46
[19] Ibid, [72].
49His Honour Judge Mason sentenced you on the basis that ‘your offending was not accompanied by other acts of violence or under circumstances of duty of care and breach of trust’.[20] Although I have taken a different view of this aspect of the case, as noted above, I do not consider the sentence his Honour imposed to be ‘manifestly lenient’. In accordance with authority, it is therefore not open to me to impose a higher sentence than that imposed by his Honour.
[20] [52].
50It is in the public interest in ensuring the administration of criminal justice that defects in trials should be challenged and, in cases such as yours, overturned upon appeal where appropriate.[21] Furthermore, in the words of Street CJ in the case of Gilmore, the passing of a longer sentence after a retrial ‘could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown.’[22]
[21] R v Gilmore (1979) 1 A Crim R 416 at 419-420, cited with approval in R H McL v The Queen [2000] HCA 46 at [135].
[22] Ibid.
51Although the sentence imposed by his Honour Judge Mason is a relevant factor in deciding how to sentence you following your conviction at retrial,[23] there is no presumption that the same sentence should be imposed.[24] Furthermore, the cogent policy considerations which deem the sentence imposed upon you by his Honour Judge Mason as a prima facie ceiling on this sentence do not preclude the imposition of a lower sentence.[25] To the extent that your circumstances have changed, I will apply appropriate weight to the factors that are relevant to the proper exercise of my sentencing discretion.
[23] R v Chen (1993) 66 A Crim R 154, [174]-[175].
[24] Director of Public Prosecutions v TY [2009] VSCA 226 at [78].
[25] Ibid, [82].
52The retrial occurred due to no fault of your own, and you have unquestionably been burdened by the strain of considerable uncertainty in the period preceding your retrial. Conversely, it also requires little imagination to appreciate the equal burden that multiple trials have imposed upon the victim of your offending.
Matters in Mitigation
53Turning now to factors in mitigation.
Delay
54This offending occurred over 40 years ago, and you were first arrested and interviewed by police in late 2016. You can in no way be blamed for the delay between this police interview and your conviction before me in October 2022. I accept that the protracted passage of this matter through the justice system over the past six years has caused you considerable anxiety and hardship. Given your age, I consider that this delay has a greater significance for you than it does for younger offenders, particularly given the context of the pandemic. In addition, as I have already acknowledged, your subsequent convictions notwithstanding, you have rehabilitated yourself in the decades that have passed since the offending.
Advanced Age
55You are now 77 years old. Due to your advanced age you will experience a greater burden of imprisonment than a younger, fitter prisoner. The medical evidence indicates that you have a variety of physical health ailments including Type 2 diabetes, ischemic heart disease and hypertension and you are on a number of medications.[26] I consider that these conditions, in addition to your advanced age, will increase the onerousness of your incarceration.
[26] Psychological Report [16] referencing Patient Health Summary from the Robin Street Medical Centre dated 14.11.2022.
Verdins[27]
[27] (2007) 6 VR 269.
56A psychological report of Ms Gina Cidoni dated 01.12.2022 is in evidence before me. Ms Cidoni opines that you meet the clinical diagnostic criteria for both Borderline Personality Disorder and Post-Traumatic Stress Disorder. Ms Cidoni does not suggest that there is any nexus between these disorders and your offending in this case; these diagnoses can do no more than ‘possibly contextualise’ your offending and provide no evidentiary basis for moderating your moral culpability or the need for deterrence.[28]
[28] Psychological Report [105]; see generally DPP v O’Neill [2015] VSCA 325 at [59] & [74].
57However, I accept Ms Cidoni’s assessment that your ‘profound mental illness generates intensely painful feelings of anxiety, distress, dysregulation, and sadness’ and that imprisonment will intensify these symptoms.[29] Furthermore, I consider that the burden of imprisonment will weigh more heavily upon you than on a person in normal mental health. This is further exacerbated by your advanced age and physical health.
[29] Psychological Report [110].
58I also acknowledge that you have already served more than 2 years in prison under pandemic conditions during which there have been periods of lock down, severe restrictions on visits and limited programs available to you. While the risks of the COVID-19 pandemic exist both in the community and in prisons, I accept your counsel’s submission that ‘the anxiety caused to prisoners is heightened in circumstances of forced incarceration’[30] in which you have been (for the most part) not in a position to take steps to reduce your risk of infection.
[30] Defence Submissions [25].
Remorse
59You have shown no remorse for your offending and maintain that you have no memory of it.[31] You contested these charges, as is your right, and while you are not to be penalised for your lack of remorse, you will receive no discount for it.
[31] Psychological Report [11].
Relevant Sentencing Principles
60The duty of the courts in sentencing in cases such as yours is to impose sentences that demonstrate the community’s abhorrence of the sexual exploitation of children. As Winneke P explained in R v WEF:
‘It must be understood by the community and, in particular, those who stand in a position of trust and responsibility towards young children that if they wish to enjoy the benefits which derive from a relationship with young children, they will pay a heavy price if they abuse such trust and responsibility by resorting to their own sexual gratification at the expense of those whom they have in their charge.’[32]
[32] [1998] 2 VR 385 at 387.
61And, as the Court of Appeal has stated in relation to sexual offending against children:
A serious aspect of offending of the type in issue is that it is difficult to detect and not infrequently comes before the Courts only after the victims have reached adulthood. The abuse of the power relationship reflected in this pattern and its long lasting consequences contribute to and are reflected in the community’s abhorrence of the offending.[33]
[33] Stalio v The Queen [2012] VSCA 120 at [73]
62Although you have only been found guilty of one offence of buggery, you are to be sentenced on the basis that you committed the offence over a period of 20 months as a ‘course of conduct’. Under the provisions governing sentencing for course of conduct charges, the court is obliged to impose ‘a sentence that reflects that totality of the offending that constitutes the course of conduct’, subject to the requirement that the sentence not exceed the maximum penalty of 20 years. [34]
[34] See the note to section 5(2F) of the Sentencing Act 1991 (Vic).
63The Court of Appeal has acknowledged that sentencing in course of conduct cases is ‘a task of particular difficulty’ as it requires the court to settle upon a single sentence that reflects the totality of the offending.[35]
[35] DPP v Tullipan [2021] VSCA 191 at [4]-[5].
Current Sentencing Practices
64Section 5(2)(b) of the Sentencing Act 1991 requires that I take into account, as one of many factors, ‘current sentencing practices’. ‘Current sentencing practices’ in s 5(2)(b) refers to practices current at the date of sentencing and not the date of offending.[36]
[36] Stalio v The Queen [2012] VSCA 120 at [39].
65However, in the case of Stalio v The Queen, the Court of Appeal stated that, when sentencing an individual after a significant delay since the time of the offending, the principle of equal justice requires that regard also be had to sentencing practices at the time that the offence was committed.[37] As the Court there recognised, ‘[i]t would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time’.[38]
[37] Stalio v The Queen [2012] VSCA 120 at [52]-[53].
[38] Stalio v The Queen [2012] VSCA 120 at [54].
66There is no material before me that describes the sentencing practices for the crime of buggery in 1979. Given the passage of time, the sentencing practices from that period are difficult to ascertain. In the circumstances, the Court of Appeal has recognised that ‘the best that a sentencing judge [can] do in such circumstances [will] be to have regard to the fact that the range of sentences imposed for this offence were generally lower than the present range of sentences for the same or similar offences.’[39]
[39] The Queen v AMP [2010] VSCA 48 at [34].
67The facts of your case bear some resemblance to those in Scannell v The Queen.[40] In that case, the offender was sentenced after a trial for the buggery of a 12 year old child 40 years previously. There was only one instance of buggery that was the subject of a charge and the penetration was slight.
[40] [2014] VSCA 330.
68The offender was 88 years of age at the time of sentence, in very poor health and had no prior convictions. Nor had he offended subsequently. On appeal, the Court of Appeal accepted that specific deterrence had no role to play and that the need for general deterrence was ‘somewhat lessened’.[41]
[41] [2014] VSCA 330 at [44].
69A sentence of two years’ imprisonment was reduced to 15 months, 10 months of which were suspended for two years.
70I consider yours to be a considerably more serious example of the offence of buggery and your subsequent offending also distinguishes your case from that of Scannell. In any event, as the High Court has recognised, while sentences imposed in other cases ‘may inform the task of sentencing’, they offer only limited assistance to a sentencing court.[42]
[42] DPP v Dalgliesh (2017) 91 ALJR 1063 at [83].
Orders
71Taking into account all of the relevant circumstances including the previous sentence imposed on you and the time you have already served, on Charge 1 - buggery as a course of conduct, you are convicted and sentenced to 5 years and 6 months’ imprisonment.
72I direct that you serve a minimum of 3 years and 9 months’ imprisonment before you are eligible for parole.
73Pursuant to s 18(4) of the Sentencing Act 1991, I declare that the period of 771 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the Court’s records.
74Because the offence of which you have been found guilty is a registerable offence, you are a registerable sex offender under the Sex Offenders Registration Act 2004 (Vic.) and the reporting period is life.
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