Director of Public Prosecutions v DM
[2012] VCC 840
•1 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00129
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DM |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2012 and 28 May 2012 | |
DATE OF SENTENCE: | 1 June 2012 | |
CASE MAY BE CITED AS: | DPP v DM | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 840 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A. Bhai | Office of Public Prosecutions |
| For the Accused | Ms Z. Broughton | Balmer & Associates |
HER HONOUR:
1 DM, you have pleaded guilty to one charge of committing an indecent act with a child under 16, the maximum penalty applicable to that offence is 10 years’ imprisonment, one charge of sexual penetration of a child under 16 under care, supervision or authority, the maximum penalty applicable to that offence is 15 years’ imprisonment, and one charge of sexual penetration of a child under 16, the maximum penalty being 10 years' imprisonment.
2 These crimes arise out of events which took place between yourself and the victim of your offending, KM. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor.
3 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say that I regard the facts in this case as most serious and disturbing, with a number of aggravating features to which I shall later refer.
4 Turning to a summary of your offending. At the time of your offending you were between 34 and 36 years of age. You are now 53. KM, at the time of your offending against her, was between 13 and 15 years of age.
5 In January 1992, KM started high school. She was 12 years of age and living with her mother, stepfather and younger siblings.
6 You were KM’s teacher. In about May 1992, you gave the class an essay topic “What do you want?” KM wrote she wanted her parents to stop fighting and wanted to know her real dad. She was distressed and crying at the time of that disclosure.
7 You took KM out of class, told her you understood and that you would help her to find her natural father. From that time, KM would often stay after class to talk to you.
8 Later that year, the year co-ordinator told KM it was inappropriate for her to be staying behind talking to you and KM was removed from your class. The co-ordinator also informed you that she was doing this as “the relationship (between KM and yourself) was becoming too close”. This warning unfortunately did not deter you from continuing your inappropriate contact with KM.
9 KM and yourself then began communicating by letters. Towards the end of the year you gave her perfume and said that it was an “I love you gift”.
10 Charge 1 is a representative charge involving two occasions referred to as described in paragraphs 8 and 10 of the Prosecution Opening (Exhibit A).
11 On a school day in December 1992 you picked KM up near her home and went to Studley Park. You went for a bush walk where you kissed her and told her you loved her.
12 You then took KM to Monash University, to an empty room in the campus dormitory, kissing her and at that time, touching her breasts. You then drove her to a field and kissed her again.
13 You told KM if she mentioned anything to anybody that you would go to gaol and she would be sent to a boarding home. You then dropped her off near her home. KM was 13 years of age.
14 Subsequently, KM’s stepfather and the school principal became aware that you and KM had spent the day together and KM’s stepfather contacted police who spoke to KM. She, however, would not make a statement. In addition, KM’s stepfather phoned you and warned you about having any social contact with KM, telling you he considered such contact with KM to be inappropriate. The school principal also informed the Department of School Education of your contact. Again, you were undeterred by these ‘warnings’.
15 In addition, KM’s mother spoke to you. You said you were just spending time with KM to get to know her.
16 Turning to Charge 2, this is a single event offence which occurred following KM’s mother’s and stepfather’s separation at the end of 1992. You began communicating with KM’s mother and eventually commenced a relationship with her, regularly visiting KM’s family home. During this time you would seek out KM for secret kisses and hugs.
17 One night in January 1993, you woke KM and told her you wanted to spend time with her. In the upstairs room you told her to lie on the bed and began kissing her. You removed her clothes and your own. Using a condom, you had penile vaginal intercourse with KM, who at that time was a virgin.
18 Charge 3 is a representative charge. Prior to the start of the 1993 school year you stopped spending time at KM’s home. You told KM it was because you no longer wished to have a relationship with her mother. On 22 March 1993 you were transferred to another secondary school.
19 You recommenced your relationship with KM’s mother and began visiting the home again, telling KM it was the only way you could get to spend time with her. This is concerning.
20 During this time, you and KM had sexual intercourse when alone in the house, and on an occasion when you went for a drive in the car. At times you took KM to Monash University dormitory rooms and sexual intercourse occurred.
21 In approximately Easter 1993, you moved to a share house at Chadstone and encouraged KM to spend time with you at that house. On those occasions when she visited, you had sexual intercourse with her.
22 KM recalled on one occasion you told her ‘speed’ would give her a nice buzz and be great to have with sex. On that occasion, you had penile vaginal intercourse. KM was 13 years of age. As I have said, Charge 3 is a representative charge of the occasions described in the Prosecution Opening at paragraphs 27, 28, 30 and 33.
23 In April 1993, KM’s mother suffered a nervous breakdown and KM and some of her siblings were placed into foster care for a time. During that time, KM saw you every other day. You waited for her at school or picked her up outside her foster home, taking her to your home where you again had sexual intercourse with her. In my opinion, you were well aware of KM’s vulnerability, as you were from the time she cried when writing her essay in 1992.
24 When KM returned to live with her mother she became the primary carer of her siblings. You encouraged her to move out of the home, saying it was unfair she had to care for them. In my opinion, this reflects concern for yourself and not at all for KM. You told KM her mother was very suspicious of you and that she may report you to the police, and if she had you would go to gaol and KM would go to a boarding house. I have no doubt those words to a vulnerable young girl had a profound impact upon her. KM, at your urging, moved out of home and into shared accommodation, initially in Burwood, then Glen Waverley and Oakleigh.
25 After KM left home you insisted she use the contraceptive pill. You were concerned, however, your sexual relationship would be found out when she needed repeat prescriptions. This, however, did not deter you. In early 1994, KM became pregnant to you and you arranged for her to have an abortion. She was just 14 years of age.
26 In January 1995 KM again became pregnant to you and again you arranged for her to terminate that pregnancy. She was 15 years of age and in Year 10 at school. KM had no contact with her family at that stage.
27 On 12 July 1995, KM turned 16. At the end of that year, you and she moved to Western Australia, as you told her the age of consent in Western Australia was 16 and that you could legally live together.
28 You and KM remained together until October of 2008, living in various places in Victoria and interstate, marrying in Brisbane in December 1998. There are two children of your marriage, one born in August 1999 and the other in November 2000.
29 On 24 August 2011 you voluntarily came from Sydney to Melbourne to attend with Victoria Police regarding your offending. You were arrested and cautioned. You admitted having a sexual relationship with KM, describing it as a relationship that developed because of your “weakness and lack of understanding”. You said you knew it was against the law and that you justified it to yourself at the time because you loved her deeply and intended to marry her.
30 As I have previously stated, Charges 1 and 3, are representative charges. When sentencing on representative charges, the principles as stated in R v SBL [1999] 1 VR 706 applies. Further consideration of these principles has occurred recently in DPP v HPW [2011] VSCA 88, DPP v EB (2008) 186 A Crim R 314 and DPP v The Queen [2011] VSCA 1.
31 There are a number of aggravating aspects of your offending, and I discussed these with your counsel at your plea hearing which commenced on 21 March. Firstly, the breach of trust, you being the teacher of KM. Such is already incorporated in the maximum sentence applicable on Charge 2 but also has application to the other charges. In my opinion there was also an element of pre-planning or grooming in your offending behaviour involving KM. On one occasion prior to your offending you gave her a gift of perfume and told her you loved her. On other occasions you ingratiated yourself to her when she was vulnerable being concerned her family was not together. This resulted in a number of meetings between yourself and KM, building up her trust. It is also relevant in my assessment of this aggravating feature that you told her your involvement with her mother was as a means of enabling you to have more contact with her.
32 A further aggravating feature of your offending involved threats on two occasions, that she should not tell anyone about your offending otherwise you would go to gaol and she would be sent to a boarding school. Another aggravating feature of your offending was you not using condoms on some occasions when penile/vaginal offending occurred, as evidenced by two children conceived as a result. I accept a condom was used by you the first time intercourse occurred (Charge 2). I also note both pregnancies were terminated at your request. The occurrence of the first pregnancy did not prompt you to use a condom. You were by then well and truly aware of the risk KM could become pregnant. See R v Khem [2008] 186 A Crim R 465.
33 Your failure to wear a condom on some occasions showed a disregard for KM’s welfare, taking the risk intercourse would expose her to pregnancy and/or infection. I have no doubt KM was emotionally devastated at the termination of the two pregnancies.
34 Ms Broughton did not accept any pre-planning or grooming by you, or that you caused any split or division between KM and her family, relying upon the Reports of Dr Cidoni and Ms Northey. I disagree referrable to your behaviour, as I just outlined.
35 Ms Broughton did, however, describe your offending as reprehensible. In my opinion, that description is a gross understatement.
36 The gravity of your offending alleged in the charges before me is difficult to adequately describe. You offended against KM in the most repugnant of ways. You knew your association was wrong, at least from the time you were questioned by teachers and the principal at the school. You knew your sexual offending against KM was wrong when you told her not to tell others, had her obtain prescriptions for the contraceptive pill, and arranged for her to have two terminations.
37 You also knew KM was very vulnerable from the time of the ‘essay’ when she cried out for your help. Her vulnerability continued, known to you when you offered support to her when she was in foster care. You gave her anything but help. You ostracised KM from her family and friends.
38 Your behaviour involved your own sexual desires. You gave no thought to the impact of your offending on KM.
39 KM was, in essence, emotionally your prisoner, unable at her very young age, reflected in the dates on the Indictment, to extricate herself from your control over her.
40 You have pleaded guilty to these offences and are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses, in particular KM, have been spared the ordeal of having to give evidence upon your trial. Further, I take into account in your favour, you intimated early your intention to plead guilty to these charges. Your intention to plead guilty is evidenced by your answers in the record of interview conducted with police on 24 August 2011. Thereafter this matter proceeded with discussion between your counsel and/or solicitor for the prosecution to resolve your offending to a suitable Indictment. You were committed to the County Court at a committal case conference on 3 February 2012. You pleaded guilty at that stage and the matter proceeded by way of straight hand-up brief. I accept therefore, you intimated at an early stage, you were prepared to plead guilty to the charges before me, which I accept commenced from the time you first spoke to police.
41 Regarding your plea of guilty, Ms Broughton submitted you made full admissions in the record of interview, and further when you became aware of the allegations, you actively sought out police to enable yourself to be interviewed, travelling from New South Wales to Victoria for that purpose. Following that interview, you then requested to be remanded in custody.
42 In the circumstances, I accept your plea of guilty indicates remorse for your offending. Further evidence of your remorse can be found in the Reports of Ms Northey and Dr Cidoni.
43 From KM’s Victim Impact Statement it was apparent and understandable your sexual offending against her as a child had permeated all aspects of her life. In her eloquent statement, KM reflected upon her lost youth and the continuing adverse effects upon her life as a woman, as a result of your sexual offending against her which commenced when she was 13 and occurred over the time in the Indictment.
44 It is difficult in these brief sentencing remarks to do justice to her Victim Impact Statement. As it was read into the transcript the pain felt by KM was palpable. In her statement she said, ‘I even feel guilt and shame about these events I am disclosing because I think I should have know better.’ KM should not have to feel this way. As a child, KM did not know better, you on the other hand as an adult, did. KM should in no way feel responsible for your offending against her.
45 KM described your offending as stopping her childhood and not giving her the chance to be a normal teenager. The unstable lifestyle she led as a result of your influence disrupted her education and relationship with her family. When she first met you she was struggling with her home situation for a number of reasons, and turned to you for help and guidance. She trusted you. You breached her trust when she was vulnerable. She now found it hard to trust others as a result of your offending and she described guilt and sadness regarding the two abortions when she was 14 and 15.
46 Whilst the effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991), I am conscious, however, when sentencing I must not allow the effects upon a victim to swamp the sentencing process, and bear this firmly in mind.
47 You have admitted two prior court appearances, one at Prahran Magistrates’ Court on 2 September 1993 on a charge of burglary and theft. Without conviction, the matter was adjourned to 1 September 1994. Prior to that you appeared at Prahran Magistrates’ Court on 4 May 1988 on the charge of possessing a prohibited weapon for which you were fined five hundred dollars. Whilst you do have a prior criminal history, in my opinion those offences are not relevant to sentencing for your offending before me. I disregard those for the purposes of sentencing you today.
48 I was told something of your background and history. You are 53 years of age at date of sentence.
49 You have been in custody since your arrest on 24 August 2011 and up to and including 31 May, which was yesterday, 2012, you have spent 282 days in custody by way of pre-sentence detention and I will discuss this with counsel in a moment.
50 Ms Broughton at the initial plea hearing, submitted the bulk of the plea material she wished to place before me would be contained, she anticipated, in material she was hoping to obtain from a psychologist and also from Dr Hacker, the latter having seen you for grief counselling following the suicide of your brother. As such, Ms Broughton requested an adjournment of this matter to enable this material to be provided. This was not opposed by Ms Bhai, on behalf of the prosecution, and the further hearing of the plea was adjourned to 26 April 2012.
51 On 26 April 2012 Ms Broughton tendered a report from Ms Wendy Northey, Consultant Forensic Psychologist, dated 25 April 2012. Ms Northey interviewed you on 20 April 2012. She concluded, following that interview, that you were an emotionally complex individual with a fractured personal life history. You disclosed your own experience of childhood sexual abuse. I was told more about this by Ms Broughton. You described this occurring when you were 5 years of age, involving your mother, and had only recently disclosed that abuse.
52 Ms Northey concluded you were likely to have a very high IQ at the “upper end” of intellectual capacity, however, said that was not to say your psychological disturbances did not impact upon your capacity in such a way that your cognition and behaviours were not always rational or intelligent.
53 In compiling her report, Ms Northey had discussions with your ex-wife, JM. Ms Northey assessed your overall mental state as being reasonably stable at present. You did not appear to be suffering from clinical levels of depression or anxiety or any flagrant form of pathological personality disorder, although anti-social behavioural traits were “indicated”.
54 She concluded there “may” be further psychological explanation for your behavioural idiosyncrasies, making reference to some earlier professional counselling you had received but not completed. She further surmised that the other “possibility” was that you had a genetic vulnerability in terms of your fragmented psychological integrity, as your father was bipolar and two of your brothers had significant forms of mental illness.
55 She concluded whatever genetic physiological vulnerability you “may” have, had been exacerbated by trauma, stress and illicit drug use in the past. She concluded you ”could” suffer from a bipolar disorder or “may” have been suffering a disturbed inner core yet to be resolved through counselling. She described that since being detained in custody for this offending you were motivated to access whatever rehabilitation programs were available to you, whether it be in the custodial setting or ultimately when in the community post your release. A number of programs were suggested by Ms Northey as being potentially of benefit to you.
56 She currently assessed you as being a low risk of sexual offending, and any risk of re-offending should be resolved by appropriate program work through custodial sex offender programs.
57 Ms Northey provided some details of your background and history. You were born in Canada, the youngest of seven siblings, with three older brothers, two older sisters, and another brother who committed suicide in 1987.
58 You said your father was a minister who you described as being an enigmatic character, preoccupied and distant. In addition, you described your father being verbally and physically abusive to the children, including yourself, and your mother.
59 You described your mother as compassionate and kind but also undemonstrative, and a somewhat dismissive parent figure. Regarding the sexual molestation by her, you had only recently disclosed that, firstly to your ex-wife, then to your lawyer, and then more fully to Ms Northey as part of her forensic assessment.
60 You lived with your family in Canada until you were 13, attending eight different schools there prior to the age of 11.
61 In 1972 when you were 13 years of age and in Year 7 you and your younger brother were sent to Australia to live with family/church friends in Queenscliff. You attended school in Queenscliff for a year before flying back to Canada to live with your older brother, Paul, for 18 months. Meanwhile, your parents flew to Australia to live.
62 On returning to Canada you attended secondary school before leaving at the age of 16 to return to Australia because your parents were here.
63 When you arrived in Australia you lived with your parents in Donvale for three months, before they left for India to live, leaving you as a 16‑year-old living in a boarding house in Kew. You had various employment over time, including that as an apprentice hairdresser. A motorbike accident badly injured your knee. You completed Year 12 at Moorabbin TAFE in 1978 and gained entry to Monash University, completing an Arts degree. It was there that you met your wife, JM, in 1983. There were two children of that marriage, now 27 and 25 years of age. You were divorced from JM in 1993, and when she became aware of your relationship with KM she prevented your children having contact with you.
64 Your brother committed suicide in 1987, which led to you having counselling with Dr Sandra Hacker, Psychotherapist, for three years. You described to Ms Northey that that counselling was only partially successful. Ms Broughton indicated that she had not been able to obtain a report from Dr Hacker.
65 Whilst completing your Diploma of Education you worked driving taxis and developing residential properties with your wife. You did well financially until the financial crisis of 1987. You then returned to teaching in early 1992, where KM was a student. You described your involvement with her as trying to “constructively” help. In the opinion of Ms Northey your behaviour towards KM was not predatory but rather initially protective. As I have stated, I have some concerns about that conclusion. You said you “fell in love (with KM) and became extremely attached”, and that she fell in love with you. Once your relationship was revealed, you transferred to another school teaching to the end of 1993. After 1996 you moved with KM to live in Western Australia where it was not illegal to reside with a teenager aged 16.
66 You described that by the time KM was 19 she was keen to marry you, although you said you had misgivings, feeling trapped, you said, within your legally-compromised liaison.
67 I discussed with Ms Broughton her submission regarding the relationship between both yourself and KM after the offending on the dates in the Indictment. Whilst it is a fact you remained together for many years, married, and had children together following this offending, it is difficult for me to form any concluded view as to why you and/or KM remained in that relationship, and perhaps more importantly why KM did not leave. In my opinion it is not necessary or appropriate for me to draw any conclusion about the reason the relationship continued to the point of marriage and children but rather to focus on your offending behaviour as alleged in the Indictment. The transcript of your various plea hearings will reveal this detailed discussion.
68 What is clear, however, is that both of you did move to Sydney in 1997. You obtained employment there for a while, then briefly residing in Brisbane, before returning to Sydney.
69 As I said, you married in 1998, and have had a son and daughter since then. The marriage between yourself and KM deteriorated in 2007 to the point where you assaulted KM in 2007, leading to a court appearance in January 2011. You were sentenced to a 9‑month term of imprisonment with a non-parole period of 5 months for that. The two children of your marriage are now 11 and 12 years of age. KM lives in Sydney with her children. According to the report of Ms Northey, she does not have any further contact with you.
70 Turning to Ms Northey’s clinical assessment in relation to your rehabilitation prospects, there were a combination of vulnerability factors in your life which led to your sexual offending behaviour, which included early boundary confusions, childhood sexual abuse, feelings of abandonment, intimacy deficits, emotional dysregulation/emotional immaturity, cognitive distortions and situational opportunity.
71 She noted that by virtue of your teacher training you understood principles of educative learning, and your rehabilitation could be based upon largely cognitive approaches as part of the sex-offender program. You had expressed your keenness and commitment to fully engage. In her opinion your prognosis was very good, contingent upon such opportunity to engage therapeutically.
72 Turning to your time in custody, as at the time of her report you had been on remand at the Metropolitan Remand Centre for seven months. I was further advised by Ms Broughton on your behalf that you had also spent some time at Port Phillip Prison as a result of threatening letters sent to you by other prisoners. You have for some of your time on remand been in protection. Ms Broughton was going to provide details of the exact amount of time you have been in protection up to and including sentence. I discussed with her the difficulty of speculating regarding where you would spend your time following sentence and whether or not your sentence would be on protection, consistent with the decision of R v Mailes [2007] VSCA 302, and R v Clifford [2012] VSC 93. A brief Report was provided to me (Ex 3) from Debra Coombs, Solicitor, Department of Justice, dated 25 May 2012, regarding protection status. I accept for the purpose of sentencing you have been in protection and thus your activities/access to programs limited. Beyond sentence, whilst you may be in protection, it is unclear, and even if you were, the level of protection at this stage is speculative.
73 Ms Northey noted you expressed deep remorse for your offending behaviour, and were highly motivated towards your rehabilitation. To date you had completed a number of programs in custody, an alcohol program, food-handling course, and OH&S course. You also had employment at MRC hairdressing, gardening, and as a billet.
74 Referring to your subsequent criminal convictions, although Ms Northey referred to them as your prior criminal convictions (see paragraph 36), she described those as being examples of impulsive incidents indicative of disturbed emotions, impulsivity and anti-social behaviour at times of deep emotional disturbance.
75 In her conclusion, you suffered from a significant form of psychological disturbance over the years (“possibly” some form of bi‑polar mood disorder) exacerbated at times by illicit drug use and inordinate stress. I note Dr Cidoni differed regarding that potential diagnosis. Ms Northey considered your prognosis was good, contingent upon the provision of professional and high-quality programs within the criminal justice system. Further, you had good employment prospects post-release.
76 She described your psychological state as having stabilised whilst on remand. Given your age, your prospect of re-offending was less than a younger person.
77 I discussed with Ms Broughton the contents of the report of Ms Northey relevant to whether or not principles of R v Verdins (2007) 16 VR 269 applied. Ms Broughton conceded the report did not satisfy the principles in Verdins.
78 Having said that, I agree the material supports some mitigation of your sentence as part of the instinctive synthesis to the background of your offending. However, the conclusions of Ms Northey, in my opinion, fall short of establishing Verdins principles, see also R v Vaudreau [2009] VSCA 262 (Ashley and Weinberg JA).
79 In my opinion, the most recent Report of Dr Cidoni to which I shall shortly refer, does not advance the applicability of any Verdins principles. Ms Broughton agreed.
80 Ms Broughton also agreed that based on Ms Northey’s report it was difficult to establish a nexus between the sexual offending against you during your childhood and your offending involving KM. Ms Broughton conceded on the material that I had to date that the sufficient nexus as stated in R v AWF (2000) 2 VR 1 and GEM v The Queen [2010] VSCA 168 had not been satisfied. Ms Broughton also agreed the Report of Dr Cidoni did not establish the nexus.
81 I turn to the Report from Dr Anthony Cidoni, Consultant Psychiatrist, dated 21 May 2012, who interviewed you on 18 May 2012. There was no disturbance of affect, thought or perception. Your intelligence appeared above average. You recognised the nature of your offences, were willing to pay the penalty and specifically said you did not want me to underplay the significance of your offending.
82 Dr Cidoni also outlined your background and history.
83 Turning to your psychiatric history, Dr Cidoni concluded despite Ms Northey’s concern of possible dipolar disorder, in his opinion she did not detail any symptoms that would justify that conclusion. You denied any periods of elevated or depressed mood, have never had any psychiatric medication or contact with public mental health services. You reported that at the end of therapy with Dr Hacker, following the death of your brother you were told you did not have any major psychiatric conditions.
84 You acknowledged your offending against KM was wrong. You denied any paedophilic fantasies or behaviours and thought you could rescue KM.
85 In his conclusions, Dr Cidoni stated you did not suffer from any major psychiatric conditions, and there was insufficient evidence to support bipolar disorder. No personality disorder was diagnosed.
86 Your mood, he said, should be monitored to ensure you did not develop depression in custody given your family history of depression.
87 Regarding your risk of sexual re-offending, in Dr Cidoni's assessment you were of low risk. There was no current indication of paedophilia.
88 Ms Broughton conceded you had a number of subsequent court appearances. Such, of course, are limited in their relevance to your rehabilitation prospects. I was told something of that offending. You were dealt with in the Prahran Magistrates’ Court in August 1995 for breach of an Intervention Order, which I was told involved you making a phone call to your ex-wife in contravention of the Order.
89 You then appeared on 2 July 1996 on a charge of wilful damage, which I understood involved you damaging property at a service station.
90 You appeared on 10 October 1996 in relation to breaching an intervention order again in relation to your ex-wife, where an argument ensued at her house when you were attempting to organise access to your children for Christmas.
91 You then appeared on 21 July 1998 for driving a motor vehicle while exceeding the prescribed concentration of alcohol.
92 You then appeared at Parramatta Local Court on 21 October 2010 in relation to monetary penalties that had previously been imposed, as I understand it.
93 On 8 February 2010 you appeared at North Sydney Local Court on charges of stalking, intimidating and common-law assault. I was advised by Ms Broughton this occurred when you were living at a boarding house, that you had an argument with the manager at those premises.
94 You further appeared on 12 January 2011 on charges of assault occasioning actual bodily harm, stalking, and using a carriage service to threaten. This involved the complainant, KM, and photographs were tendered as Exhibit C, which you accepted reflected the injuries caused by you. That was dealt with in New South Wales.
95 The relevance of your subsequent history is limited, as I have previously stated, to your rehabilitation prospects. I note following the offences involving KM, there had not been, as I had understood it, any further contact with her.
96 Linked also to your rehabilitation prospects is the submission by Ms Broughton that there has been a delay, given these matters are historic, in them finally being determined by me. That of course is correct. There can, of course, be many reasons why victims of sexual offending do not complain for many years. However, I also note you have committed further offences since your offending involving KM before me, and such is of some concern regarding your rehabilitation prospects, although I accept that offending has not involved any further sexual allegations.
97 I accept the submission that at 53 years of age, and based on your prospects of rehabilitation as concluded by Ms Northey and Dr Cidoni, your rehabilitation prospects are very good, assuming you undertake appropriate programs when offered to you.
98 Further, in support of your positive rehabilitation prospects, I accept that you have expressed empathy in relation to your offending against KM, and that you are motivated towards your rehabilitation as observed by Ms Northey, in particular at paragraphs 33 and 34 of her report.
99 Following a sentence of imprisonment being imposed on Charges 1 and 2, you are to be sentenced as a serious sexual offender pursuant to the Sentencing Act 1991 on Charge 3. As such, when sentencing you on Charge 3, I must when determining the length of sentence, regard the protection of the community from you as the principle purpose for which the sentence is imposed and I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. I did not understand the prosecution to urge a disproportionate sentence, and Ms Broughton urged I not impose a disproportionate sentence. I consider I am able to appropriately sentence you without the need to impose a disproportionate sentence.
100 In addition, pursuant to s.6E Sentencing Act 1991, every term of imprisonment imposed by a court on a serious offender, must, unless otherwise directed by the court, be served cumulatively upon any uncompleted sentence or sentences of imprisonment imposed on you, whether before or at the same time as that term. I therefore direct it be entered into the records of the Court, you have been sentenced as a serious sexual offender in relation to Charge 3 on the Indictment.
101 In addition, following your plea of guilty to the three charges before me, each of the charges are registrable offences pursuant to the Sex Offenders Registration Act (2004). Charge 1 is a Class 2 offence and Charges 2 and 3 are Class 1 offences. You are required, pursuant to that Act to report for the remainder of your life, such an order being mandatory.
102 Ms Broughton, who appeared on your behalf, agreed that the serious sex offender provisions would apply upon sentencing following imprisonment on Charges 1 and 2, and also that the Sex Offenders Registration Act was applicable to you for life, and that such an order was mandatory.
103 At the end of my sentencing remarks and this sentence, Ms Jackson will request that you sign acknowledging receipt of those documents which explain the Registration process and your obligations.
104 Ms Broughton conceded a term of imprisonment was appropriate, however submitted the range proffered by the prosecution as appropriate was too high. Ms Broughton referred to your offending commencing from a genuine love for KM, and pointed to your ongoing relationship until recently.
105 Ms Bhai, on behalf of the prosecution, referred to the breach of trust involved in your offending. There was grooming and planning by you prior to your sexual offending against KM, knowing she was vulnerable, gaining her trust, sending her letters, giving her gifts as ‘I love you’ gifts, forming a friendship with her mother. At the very least, Ms Bhai submitted by the time KM was removed from your class your conduct had involved grooming and planning. As I stated during the course of the plea and these sentencing remarks, I agree.
106 You also threatened her not to tell of your sexual activity with her (two occasions that were referred to in the Prosecution Opening) and that I accept has some relevance to the potential for her delay in complaining. You also encouraged KM to leave home, and that there were two aborted pregnancies.
107 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence which is of considerable importance in a case such as this.
108 The courts have repeatedly referred to this as being important when sentencing for sexual offences against children, see Burnett (1993) 70 A Crim R 469, Roosmalen (1989) 43 A crim R 358, Wayland 14/9/1992 CA Victoria, Parente 20/2/1996 CA Victoria. This list is by no means exhaustive.
109 The courts have a duty to protect children. They are vulnerable and especially vulnerable to abuse of trust. They are immature in their understanding of right and wrong and are dependent upon adults not to abuse that immaturity. See also more recently The Queen v Parfitt [2006] VSCA 91.
110 Most recently in a decision of Clarkson [2011] VSCA 157 the court made a number of observations regarding the offence of sexual penetration of a child under 16, and sexual offending generally against children under 16.
111 The court, referring to sexual penetration, noted the need to protect children from the harm caused by premature sexual activity and to protect children from their own immaturity (see para. 26).
112 The court cited R v Williams (1990) 53 SASR 253:
“The law which prohibits sexual intercourse with young girls exists in order to protect young girls from their own inclinations, until they have reached a sufficient degree of maturity in like to make sensible and responsible decisions as to their own lives. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls.”
113 The Victorian courts have reflected a longstanding community consensus that it is not until the age of 16 that a child has a physiological maturity and decision making competence to agree to sexual activity (see para. 28).
114 In Clarkson, the court cited with approval the decision in Hess v The Queen (1990) 2 SCR 906, a decision of the Canadian Supreme Court dealing in that case with sexual intercourse with their legislation, being sexual intercourse with a child under 14, requiring two objectives:
“The first is the protection of female children from the harms which may result from premature sexual intercourse and pregnancy. The second is the protection of society from the impact of the social problems which sexual intercourse with children may produce.
… [T]he protection of children from the evils of intercourse is multi-faceted and so obvious as not to require formal demonstration. Children merit this protection for three primary reasons. The first is the need to protect them from the consequences of pregnancies with which they are ill-equipped to deal from the physical, emotional and economic point of view. The second is the need to protect them from the grave physical and emotional harm which may result from sexual intercourse at such an early age. The third is the need to protect them from exploitation by those who might seek to use them for prostitution and related nefarious purposes.
Each of these reasons to protect children against premature sexual intercourse is reflected in corresponding social problems. Juvenile pregnancies adversely affect family and society. It is society which bears the cost of abortions, society which often pays for the care of infant and mother …
The effects of premature intercourse on young girls and on society in general have been well documented. One need only consult the judgments of the American courts upholding statutory rape provisions to gain an appreciation of the statistical data supporting the evils to which I have referred. They have also been recognised in Canada: see Law Reform Commission of Canada, Working Paper 22, Criminal Law: Sexual Offences (1978), 25–6.”
115 So not only general deterrence but specific deterrence in my opinion is also relevant as your offending occurred over a period of approximately two and a half years.
116 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted by the conclusion of Dr Cidoni and Ms Northey who have assessed you as a low risk of sexual re-offending, and also note your positive rehabilitation prospects.
117 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impost a just punishment.
118 As I say, I sentence you on the basis that you are a serious sexual offender on Charge 3, and that this be entered into the records of the Court.
119 In sentencing, I have taken into account the principles of totality and proportionality.
120 On Charge 1 you are convicted and sentenced to 18 months imprisonment.
121 On Charge 2 you are convicted and sentenced to 4 years imprisonment.
122 On Charge 3 you are convicted and sentenced to 5 years 6 months imprisonment.
123 Charge 3 is the base sentence.
124 I direct that 6 months of Charge 1 be served cumulatively upon Charge 3.
125 I direct that 1 year of Charge 2 be served cumulatively upon Charge 3 and cumulatively upon each other.
126 To clarify that, all sentences of cumulation are cumulated upon themselves and upon the base sentence which was Charge 3.
127 That results in a total effective sentence of 7 years imprisonment, and I direct you serve a period of 5 years in custody before you are eligible for parole.
128 Pursuant to s.18(4) Sentencing Act I declare that you have spent 282 days in custody (up to and including yesterday, being 31 May 2012) by way of pre-sentence detention and I direct that that be entered into the records of the court.
129 The prosecution made application pursuant to s.464ZF(2) Crimes Act 1958 for a forensic sample. This was consented to by counsel on your behalf and I make the Order in the terms sought. I make the Order based on the seriousness of your offending. I must advise you the authorities may use reasonable force in order to obtain that sample.
130 Pursuant to s.6AAA Sentencing Ac 1991, had you been found guilty of these offences following jury verdict, I would have sentenced you to a term of imprisonment of 10 years with a non-parole period of 7 years.
131 Is there anything further? Do you want help with the mathematics, do you agree with the PSD, any problems with either?
132 MS BROUGHTON: No, Your Honour.
133 HER HONOUR: Right, KM can you hear me in the link? Yes, very well, thank you. Just wait, keep the link going for the moment, please.
134 You are now going to be asked to sign - yes, I was going to check the date of something that I might have got wrong. The report was dated what from Ms Northey?
135 MS BROUGHTON: 25 April and seen on 20 April.
136 HER HONOUR: Very well. So that will be changed in the revised from 26 to 20, it is clearly wrong. Ms Jackson is going to approach you, DM, to sign acknowledgement of the documents that relate to the sex offender register, it just tells you what it is all about. You are not being asked whether you like the idea of being on it or you do not or whether you agree with it or otherwise. All you are being given is the paperwork that tells you what it is all about and you are going to be asked to sign simply acknowledging receipt of the paperwork. Thank you, Ms Jackson.
137 MS LONG: Your Honour, given that you’ve just mentioned correcting dates, earlier in the sentencing my notes are that you referred to 283 days.
138 HER HONOUR: I did.
139 MS LONG: Your Honour, I know you’ve corrected it again but I just thought I'd mention it, Your Honour.
140 HER HONOUR: Very well - here I did. How many days is it again?
141 MS LONG: 282, Your Honour.
142 HER HONOUR: 282 and - - -
143 MS LONG: My friend and I agreed on that, Your Honour.
144 HER HONOUR: Very well, so that's just an acknowledgement that you are on the register. Very well, thanks.
145 Very well, before I actually disconnect the link is there anything that's outstanding?
146 COUNSEL: No, Your Honour.
147 HER HONOUR: Very well, anything else needs to be covered, no other orders that I haven't attended to?
148 MS BROUGHTON: No, Your Honour.
149 HER HONOUR: Very well, excellent. All right, KM, we're going to now disconnect that link so if you could just wave that you understand, that'll be the end of the matter now. Very well, thank you very much. Yes thank you, disconnect the link, please.
150 Can I thank both counsel for your assistance in this matter over the number of days that it is has been; greatly appreciated, thank you.
151 MS BROUGHTON: As Your Honour pleases.
152 HER HONOUR: Thank you, can you please remove DM? Thank you very much. Counsel are now excused, thank you.
153 MS BROUGHTON: Thank you, Your Honour.
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