Director of Public Prosecutions v Fieldew
[2019] VCC 2175
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-18-01019
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL FIELDEW |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 5-9, 13-16, 19-23, 26-30 August, 2 September for trial; | |
DATE OF SENTENCE: | 18 December 2019 | |
CASE MAY BE CITED AS: | DPP v Fieldew | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2175 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Indecent assault of a girl – Indecent assault – sexual penetration of a child aged between 10 - 16
Cases Cited:R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – DPP v Toomey [2006] VSCA 90 – Burgess v The Queen [2017] VSCA 59 – Bromley v The Queen [2018] VSCA 329 – R v JMS [1998] VSCA 19 – Murdoch (a pseudonym) v The Queen [2013] VSCA 272 – Ryan v R (2001) CLR 267 – DPP v Velkoski (No.3) (2018) VCC 646 – R v HMcL (2000) 203 CLR 452 – Chen [1993] 2 VR 139 – Williams (1982) 5 A Crim R 81 – McCullagh [2003] VSC 3 – TY [2009] VSCA 226 – Gilmore [1979] 1 A Crim. R 416
Sentence: TES: 8 years 1 month imprisonment with a minimum of 6 years to be served.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher for trial and plea | OPP |
| With Ms L. Dawson for plea | ||
| For the Accused | Mr A. Lewis | SPA Lawyers |
HER HONOUR:
Introduction
1 At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offences case is prohibited by an Act of Parliament[1]. In my published remarks, I will continue to refer to the complainants by the initials used throughout the long history of this case.
[1] Section 4 Judicial Proceedings Reports Act
2 Michael Fieldew, on 2 September 2019, a jury convicted you, for the second time, of three charges of indecent assault of a girl, and nine charges of indecent assault, offences with a maximum sentence of 5 years’ imprisonment; and one charge of sexual penetration of a child aged between 10 and 16, which has a maximum sentence of 10 years’ imprisonment. A previous jury had convicted you of these charges, but was unable to decide on one other charge of sexual penetration of a child aged between 10 and 16. On 2 September 2019, the jury in this re-trial found you guilty of that offence. It also has a maximum sentence of 10 years’ imprisonment.
3 The evidence of the complainants was recorded at the first trial in 2017 and these recordings were produced as evidence in the subsequent trial before me[2]. It follows that the same evidence was heard by the different juries[3] in respect of each complainant. Thankfully, replaying the recorded evidence saved the complainants from the trauma of giving evidence a third time, having also given evidence at committal, and having been subjected in the first trial to what Ms AL described as feeling like she was abused all over again and totally disrespected, bullied and intimidated, to the extent that she collapsed outside of court and was hospitalised[4], and what Ms HK described as a lengthy, humiliating, emotional and at times offensive legal process, in some ways just as bad as the original abuse[5]. I understand their sentiments. I hasten to add that different counsel appeared in the trial before me for both prosecution and defence, and a totally different atmosphere prevailed.
[2] Chapter 8, Part 8.2, Division 7 Criminal Procedure Act 2009
[3] Accepting that there was some editing in respect of charges on which the prisoner had been acquitted at the earlier trial. See Ruling No. 10, dated: 22 July 2019
[4] Exhibit A – Victim Impact Statement of AL after first trial dated 29 March 2017
[5] Exhibit B – Victim Impact Statement of HK after first trial dated 29 March 2017
4 Mr Fieldew, you maintain that none of the criminal acts happened, and so there is no remorse shown by you for your offending, nor for the impact on your victims, who were children as defined by the law, as they were aged between 13-15 at the time of the offending.
The offending
5 I turn now to outline as briefly as I can the offending for which you are to be sentenced. It was outlined succinctly by the previous sentencing judge[6] and described comprehensively in the judgement of the Court of Appeal[7], but I am still required to set out the basis for my sentence.
[6] [2017] VCC 461
[7] [2018] VSCA 140
6 I will refer to the complainants by their first names in describing your offending against them when they were children; as they are now mature women aged in their early 50’s, I will accord them the respect of referring to them as adults thereafter in these remarks.
7 You offended against two sisters who were neighbours of yours over the period from June 1980 to September 1982. You were aged about 24 to 26; AL was aged between 13 and 15 years; HK was aged 14.
8 You and your wife as a young married couple moved to live in a house opposite the family home of AL and HK where they lived with their parents and brother. As teenage girls whose policeman father was very strict, they enjoyed the company of you and your wife, a “groovy young couple at the time”, as described by the prosecutor, and the sisters spent time visiting your house, particularly to spend time with your wife. After your first son was born, the girls continued to come over, sometimes together, more often separately. Neither sister knew that you were sexually assaulting the other.
9 The first series of offences were against AL. The acts the subject of the charges occurred against a background of you changing from being merely friendly to beginning to touch her body, flicking her on the bottom, and while walking her home across the road, kissing her and touching her breasts, in the shadows or darkness. For both sisters, before you offended against them you acted in a flirtatious manner towards them and commented on their bodies. Those acts and comments are not the subject of a charge and only provide context for what later occurred and show that your offending was not a series of isolated incidents.
10 On one occasion AL was at your house, and you and she were alone with your infant son. You took AL to the laundry where you held her up against the washing machine, rubbed her breasts and then unbuttoned her dress to expose her breasts which you then touched again. Those sexual acts are not the subject of a charge and only provide context for what then occurred. You made AL touch your penis through your clothing (charge 1 of indecent assault of a girl under 16); then penetrated her vagina with your fingers (charge 2 of indecent assault of a girl under 16[8]); and then licked her vagina (charge 3 of indecent assault of a girl under 16[9]). AL gave evidence that you referred to wetness on your shorts and said to her “Look what you made me do”. She of course had made you do nothing. You had made her comply with your demands to feed your sexual desire.
[8] Before the Crimes (Rape) Act 1991 came into force, this form of penetration was not included in the definition of “sexual penetration”.
[9] See footnote 8.
11 On another occasion AL was at your house in the evening with you, your wife and your oldest son, still a baby. You went out to the driveway with her, and positioned her against the wall of the house. You kissed her with your tongue in her mouth and touched her breasts over her clothing. Those sexual acts are not the subject of a charge and only provide context for what then occurred. You then told her you were in the shadows and could not be seen, and that if she told anyone, you and she would go to Queensland and she would not see her family again. This threat is not the subject of a charge, but provides a major part of the reason why your offending against AL did not come to the attention of police for many years. You then penetrated her vagina with your fingers (charge 5 of indecent assault of a girl under 16[10]).
[10] See footnote 8.
12 On another evening, you walked AL from your house across the road to the carport of her house. There, between the two cars, you placed your hands on her shoulders and made her kneel in front of you, and then forced your penis into her mouth; after thrusting back and forward, you ejaculated into her mouth (charge 7 of sexual penetration of a child aged between 10 and 16).
13 The last set of offences involving AL occurred on an afternoon when the two of you were alone in your house. You took her to your bedroom and removed her clothing and lay her naked on the bed. You then penetrated her vagina with your fingers (charge 8 of indecent assault[11]). You then produced a vibrator, switched it on and penetrated her vagina with it. This caused her pain and bleeding (charge 9 of sexual penetration of a child aged between 10 and 16).
[11] See footnote 8
14 Turning to the offences relating to HK, she was at your house on one occasion in the evening, dancing in the lounge room. You were dancing behind her, and from that position you put your hands inside her top and underneath her bra and fondled her breasts, commenting on them (charge 10 of indecent assault).
15 On another occasion, HK was visiting at your house when you approached her from the front, lifted her top and exposed her breasts. Again, you commented on them and touched them (charge 11 of indecent assault).
16 On another occasion at your home, you approached HK from behind, put your hands over her shoulders and rubbed her breasts and upper body over her clothing (charge 12 of indecent assault). Later, you put your hand down her pants and although she tried to pull your hand away, you persisted, and telling her she was beautiful, you touched and rubbed her around the opening of her vagina inside the labia (charge 13 of indecent assault[12]). HK said she was not ready for this, and forced your hand out of her pants.
[12] See footnote 8
17 The last set of offences involving HK occurred again at your home when she was sitting on the couch watching television. You came into the room, pulled her top up and touched her breasts (charge 14 of indecent assault). You then sucked on her breast (charge 15 of indecent assault), and while doing that, rubbed her thigh near her groin (charge 16 of indecent assault). On this occasion, you threatened HK that if she told anyone, you would say that she wanted you to do it and that she liked it. This threat is not the subject of a charge, but provides a major part of the reason why your offending against HK did not come to the attention of police for many years.
Victim Impact
18 Ms AL and Ms HK read their most recent victim impact statements[13] in court, while the prosecutor read their statements of the impact on them from the first trial. I take the impact on each of them into account in deciding the appropriate sentence.
[13] Exhibits A and B on the plea
19 There is no doubt that the process of a re-trial has negatively affected them, even though the law fortunately provided a mechanism to avoid them having to give evidence again. I acknowledged their courage in finding their voice on the day they read their statements and I do so again today. Their statements are powerful testaments to the suffering you caused them not just 40 years ago, but every day of their lives since then. I cannot begin to adequately summarise their trauma, so I will not attempt to do so.
20 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[14], and include future harm[15]. The courts have long recognised the dreadful impact on child victims of sexual offending. I quote from just one decision of the Victorian Court of Appeal which eloquently sets this out:
“It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve that 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.”[16]
[14]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[15]Adamson v R [2015] VSCA 194, [56]
[16]DPP v Toomey [2006] VSCA 90, [22]
21 All of these things apply to the lives of Ms AL and Ms HK, ever since you sexually abused them. I add that each has also suffered from mental health issues, each has suffered from a lack of trust in others, each constantly lives with reminders of the trauma, and sadly, the next generation, their children, are also suffering the fallout from your abuse, through no fault of theirs, or their mother. As I will turn to later, it seems you have rehabilitated yourself in that there is no suggestion of any further sexual offending against children, and since the offending you have led a productive life contributing to your community in significant ways.
22 But Ms AL and Ms HK have not been able to fulfil their life potential. They have endured the consequences of your crimes for 40 years without you being called to account for that conduct[17]. Their rehabilitation has been much more difficult to achieve than yours, and it is still a daily struggle for each of them to cope. I do hope that with this sentence today closing this chapter, that there will be time to heal. I acknowledge that they began to heal until the re-trial was ordered when each suffered a setback in their emotional and psychological recovery, but I sense resilience in the comment from Ms HK that although she will never be free, she will learn to live with what you did, and from Ms AL that before the news of the re-trial, she had started to experience the beauty of life without fear, anxiety and PTSD and that she will get back to that place. I wish them both well.
[17]Burgess [2017] VSCA 59
23 I want to say something more to Ms AL and Ms HK, and to everyone involved in this case. It is not the fault of Ms AL and Ms HK that you offended against them. They were aged between 13 and 15. It is never, repeat, never, a child’s fault when a sexual offence is perpetrated on them. You are the one who, through committing crimes against them as children, has caused this ripple effect on a number of families, including your own, your abuse of the sisters like a stone thrown into a still pond.
24 The betrayal of their innocence and trust are not only factors that makes each charge more serious, but is fundamental to understanding why they, like many children who are offended against, did not tell.
25 It is now well understood by the courts, and juries are now informed, that there are many reasons why a victim of sexual abuse, particularly a child, may not complain about the offending until many years later[18]. Some children grow up and never tell. It is an insidious part of child sex offending that the victim will be vulnerable, and the disparity in power between the offender and the victim means that the victim may not be able to bring forward their complaint.
[18] Bromley [2018] VSCA 329 at [54]; Section 52 Jury Directions Act; Final Report – Volume 4, Identifying and disclosing child sexual abuse - Royal Commission into Institutional Responses to Child Sexual Abuse, December 2017.
26 In addition to that, I find that a major reason in Ms AL and Ms HK not bringing forward their complaints at the time the offence occurred was your threats to each of them of the consequences if they told anyone. While they were still under 18, each was terrified of those consequences and of not being believed. Your threats to them laid the foundation for the secrecy of your offending, with each complainant initially too scared to tell, then trying to push the abuse to the back of their minds and then, as adults, attempting to get on with their lives until events brought them to the forefront of their minds[19]. It was a major consequence of your actions, that the secrecy extended for decades.
[19] A process described in R v JMS [1998] VSCA 19
Assessment of the gravity of the offending
27 Sexual offending against children is always serious. There are features that make your offending particularly serious:
28 First, there is the difference in your age and theirs of 10-12 years;
29 Next, you were persistent in your pursuit of these teenage girls over a period of time and took advantage of their immaturity, naivety and youth as they came to visit you and your wife;
30 Next, you took the opportunity whenever it arose with either sister to arrogantly abuse them for your sexual gratification without regard to their age, or to any impact on them;
31 Next, you exploited the trust and friendship they and their parents had in allowing the sisters to visit your home and remain there unsupervised;
32 Next, the threats you made to each of them aggravates the offending;
33 Next, the use of force and ejaculation into the mouth of Ms AL aggravates the offence in charge 7;
34 Next, the use of an object to penetrate Ms AL with the resulting pain and bleeding aggravates the offence in charge 9;
35 Next, the offences of digital and oral penetration in charges 2, 3, 5, 8 and 13 are at the high end of offending for charges of indecent assault; and
36 Lastly, there is the severe impact your offending has had, and continues to have, on each of them.
37 Taking all relevant factors into account, I assess your offending as very serious and your moral culpability as high.
Maximum penalty for sexual penetration of a child between 10 and 16 years
38 During the plea hearing before me, I queried the basis of a ‘concession’ by the prosecutor referred to in the previous sentencing judge’s remarks[20], and after obtaining the transcript of the plea setting out the previous prosecutor’s submissions, I received submissions from counsel appearing before me concerning the maximum penalty for charge 9 (charge 20 in the previous trial)[21].
[20] Sentence [2017] VCC 461, paragraph 3. See also paragraph 38.
[21] See transcript of plea 11 and 13 November 2019.
39 Despite the discussion that occurred on the plea before me about this, I make it clear that I do not and cannot make any assessment of the decision-making of the previous sentencing judge[22].
[22]Murdoch [2013] VSCA 272
40 I must have regard to the maximum penalty as one of the many factors to take into account in arriving at a sentence on each charge that is just in all the circumstances[23].
[23] Section 5(2)(a) Sentencing Act.
41 I sentence you on the basis that the jury accepted and followed my directions that they were only to find you guilty on charges 7 and 9 if satisfied that the particular act of sexual penetration occurred, and that it occurred on or after 1 March 1981. You were found guilty of those two charges of sexual penetration on that basis. Therefore, it is clear to me that the maximum sentence to which I must have regard for sentencing on charges 7 and 9 is the applicable maximum penalty for the offence of sexual penetration of a child between 10 and 16 years committed on or after 1 March 1981 of 10 years’ imprisonment[24].
[24] Section 48 Crimes Act as amended by Crimes (Sexual Offences) Act 1980.
42 The ‘concession’ made by the previous prosecutor[25] was not a submission relied on by the prosecutor appearing before me. However, on reflection, I think, contrary to the way that the submission of the previous prosecutor seems to have been understood, including in my discussions with counsel, that he did not[26] submit that 5 years was the maximum penalty to be applied.
[25] See transcript of plea 3/4/17 pp3-4.
[26] Emphasis added.
43 The previous prosecutor submitted that the lesser penalty of five years’ imprisonment would be highly relevant[27] to the exercise of the sentencing discretion for the sole charge of sexual penetration for which you were to be sentenced in that trial. If by his submission he simply meant that the judge in sentencing you should have regard to the fact that on 28 February 1981 the maximum was 5 years, and a day later, the same offending attracted the maximum of 10 years, and that you were indicted on alternative charges only because of uncertainty surrounding the date of commission of the offence, that would seem to me to be a reasonable submission.
[27] Emphasis added.
44 Therefore, while I have regard to the maximum penalty on charges 7 and 9 of 10 years’ imprisonment, on each of those charges I propose to take into account the fact that the maximum penalty doubled from 5 to 10 years for the types of offending alleged in those charges over the time period on the indictment, and that you faced this ‘divergence in penalty’[28] because the prosecution had probably no choice but to put charges of indecent assault and sexual penetration in the alternative because of the uncertainty as to whether the act occurred before or after 1 March 1981[29].
[28] See transcript of plea 3 April 2017 pp3-4
[29] The indictment for the second trial also contained some alternatives on this basis, where the alternative charges had not been the subject of an acquittal on the first trial. See also Ruling dated 22 August 2019 that there was a case to answer on charges 5, 7 and 9 on evidence available as to the date of commission on or after 1 March 1981.
45 I will return later to a consideration of my task in sentencing you after a re-trial having regard to the submissions about the maximum penalty and the additional charge on which you are to be sentenced today.
Personal circumstances
46 I turn now to the matters that have been submitted on your behalf to be considered in mitigation of the seriousness of your offending.
47 First, I acknowledge that of course you were entitled to plead not guilty, as is the right of every person, but it follows that you receive no mitigation that accrues to a prisoner who has pleaded guilty and even more so, has also shown remorse.
48 Next, I acknowledge that you were, and are, entitled to seek leave to appeal when convicted. I take into account that as a result of that process[30], you have now been put on your trial before two juries, with two trials over a number of weeks proceeding to verdict before two different judges over a period of two years, and have previously been sentenced to imprisonment, serving about 14 months in prison before being released on bail after your successful appeal to await the second trial. You have now been remanded awaiting sentencing since the verdicts for a further 108 days. I accept that process has taken its toll on you, and is a factor in mitigation.
[30] A procedural history is contained in the oral submissions of counsel in the transcript of the plea dated 11 November 2019.
49 Next, you have never been charged with any other offence, and so you are to be sentenced at the age of 63 as a person with no prior or subsequent convictions.
50 Next, apart from the offending, I accept that you are otherwise of good character[31], highly regarded by many as shown in the references[32] I received and have read. The ongoing support of these people is important for you during and after your time in custody.
[31]Ryan (2001) 206 CLR 267, [23]-[25]
[32] Exhibit 2
51 Further, I take into account that you have contributed significantly to the community, as a local councillor, as a member and President of the school council where your sons attended, as a coach of your sons’ sports teams and as a committee member and Vice-President of a local community festival.
52 Next, I take into account your background. You have been married for 41 years. You have two adult sons with children of their own. Your wife gave evidence in both trials, and she and your sons were present in court at the plea to support you as they have done throughout the history of this case. That is also important support for you.
53 After attending school to Year 11, you completed an apprenticeship as an electrician and that has been your occupation for your adult life, including running your own business for a time, with the exception of a two year period when an injury prevented you from working. Since the charges became public, you have had difficulty obtaining employment because the Electrical Trades Union discontinued your membership. You persisted in your search for a job and obtained one not requiring union membership, which you continued for a year until you were imprisoned after the first trial.
54 After you were bailed following the successful appeal, you re-trained in an effort to obtain work, but did not gain employment for about three months. You worked in that job until the second trial.
55 In your previous time in custody, you worked in metal fabrication five days a week. On your remand following the second trial, you are working in that occupation again. You have also been called upon to take part in talking to other prisoners about your experience of obtaining work after time in custody.
56 I take your background and current circumstances into account. It seems hard to reconcile the hard working, well-loved family man who contributed significantly to his local community through voluntary positions, and continues to assist others in the prison setting, with the brash arrogant young man who brazenly took advantage of the proximity of two teenage girls for sexual gratification without regard to the impact on them or anyone else. In my view, the only way to reconcile this is to find that when you reached your 30’s, you finally matured and became a responsible adult.
Delay
57 Your counsel submitted that the significant delay between your offending and your conviction, whether at the first or second trial, is partly due to Ms AL and Ms HK not reporting your crimes to the police until 2014. He also submitted that there was considerable delay between you being charged and the finalisation of the first trial, and further delay to finalisation in this trial as a result of your successful appeal.
58 Dealing with the last aspect first, I accept that is a delay which must be taken into account in mitigation. You were entitled to appeal, and the majority of the Court of Appeal found in May 2018 that a re-trial must be ordered. Because the second trial was said to require a listing of 5 weeks, it was unable to fit into the court’s workload until July 2019. I take into account that you had that period of 15 months waiting for the second trial, with the anxiety and uncertainty that necessarily brings.
59 After charges were laid in mid-2015, there was considerable publicity, and this impacted on you and your family as you were well known in the community, and your name is not a common one. One of your sons has felt the need to move with his family away from Melbourne because of the impact. It is all too often that loved ones of offenders are affected by the crimes, but it is not a matter that is generally taken into account in mitigation. However, I do recognise that knowledge of the impact on your family of your further imprisonment will weigh on you, noting that there is no evidence that the impact of your offending on the complainants is weighing on you.
60 Your case proceeded slowly after you were charged in mid-2015 and your committal was not held until March 2016, and after committal to this court, the first trial date for a trial of some weeks’ estimated length was allocated for, and heard in, February 2017. I take into account that period of nearly two years from being charged to the finalisation of your first trial as creating uncertainty and anxiety for you.
61 However, I do not treat the passage of time from the offending to the report to police in 2014 as impacting on you in the way that it has been submitted that I should. That is because I am satisfied that your threats to each of the complainants contributed substantially to your crimes not coming to light for many years. In addition, as described by the Court of Appeal in a case involving a similar period of delay[33], the period of time before you were charged and prosecuted conferred on you the benefit that your offending was concealed for many years and you did not suffer the opprobrium associated with being a child sex offender which would have afflicted most of your adult life had you been brought to justice promptly. The delay deferred you receiving just punishment and did not rob you of the opportunity to repent and serve your sentence as a younger man.
[33]Bromley [2018] VSCA 329.
62 In another Court of Appeal case[34], a similar situation was described as the complainants having to endure the consequences of the crimes for over 30 years before you were called to account for that conduct. You did not have the case hanging over your head for that period, and have been able to move on with your life in all its facets during the long years since the crimes were committed, while for Ms AL and Ms HK, those years were a constant battle to live with what you had done to them.
[34]Burgess [2017] VSCA 59.
63 For these reasons, including the effectiveness of your threats, the delay itself is not a factor to which I give much weight in mitigation. I give it some weight.
64 However, I do take into account, as I have already stated, that you have committed no further sex offences against children or been charged with any other offences over the long period since the offending for which I am sentencing you, and you have contributed to your family and the community over that time.
65 As to your rehabilitation and risk of re-offending, those factors I just mentioned would usually lead to a conclusion that you have rehabilitated yourself over that period and are unlikely now to re-offend in the same way against teenage girls; however, as you continue to deny the offending, those questions remain.
Sentencing on a subsequent trial
66 I was referred to a statement I made in a sentence I delivered on a re-trial in another case[35]. That statement contained an error, so I reproduce it here, correctly. The parties agreed it was otherwise a correct summary of the principles.
[35]Velkoski No. 3 - Sentence delivered 6 March 2018.
67 While it is clear that previous sentences should normally be taken as a ceiling, I am not bound by them[36]. The applicable principles for this sentence in these circumstances appear to me to be as follows:
[36] R v HMcL (2000) 203 CLR 452, 475-6; Chen [1993] 2 VR 139, 158-160, citing with approval Williams (1982) 5 A Crim R 81; McCullagh [2003] VSC 3; TY [2009] VSCA 226, [78]-[82]
· The sentencing judge on a re-trial must exercise [her or his] own judgement and [her or his] own discretion, having regard to the offence committed, the circumstances of its commission, the antecedents of the prisoner and his personal circumstances, the sentence imposed on [earlier] conviction, and the principle that unless there is some strong ground, there should not be a disparity between the sentences imposed on the first and [subsequent] occasions[37]; and
· If, having regard to the [earlier] sentence and policy considerations, and all other factors relevant to sentence, the [subsequent] judge is of the opinion that the [earlier] sentence was manifestly inadequate or inappropriate, the [subsequent] judge must act on that opinion[38].
[37]Williams ibid 83-84
[38]Williams ibid; HMcL ibid,475-6
68 The prosecutor submitted that there are two differences in the sentencing task I am undertaking from that when you were originally sentenced after the first trial: first, I must have regard to a maximum sentence of double the maximum penalty considered by the previous sentencing judge; and second, you fall to be sentenced by me on an additional charge of sexual penetration which was not part of the original sentence. It was submitted those differences meant that I am not obliged to treat the first sentence as a ceiling.
69 On your behalf, counsel submitted I should consider the original sentence as a ceiling in accordance with the principles I just referred to. He submitted that the issue as to dates was treated the same way in each trial, and so the ‘concession’ made by the prosecution in the first trial remained as a consideration for my sentence. Further, it was submitted that the additional charge on which you are to be sentenced, charge 7, in reality only arose after your successful appeal led to a re-trial, and that you should not be subject to a sentence that may look as if you were being punished for exercising your right to appeal.
70 Applying the principles for sentencing after a re-trial, I am not of the opinion that the earlier sentences were ‘altogether’ or ‘manifestly’ inadequate or inappropriate[39]. While I might have imposed higher sentences if unfettered by the previous sentences, any different sentence imposed by me would have been within the range of appropriate sentences, as were the previous sentences. There is no strong ground on this basis for a disparity between the sentences imposed on the first trial and the sentences to be imposed on this subsequent trial[40]. That principle can only apply to sentences imposed on the same charges in the first and subsequent trials[41]. In the exercise of my own sentencing discretion, I intend to impose the same sentences on each charge that the previous sentencing judge imposed, with two exceptions.
[39]Williams 83-84; HMcL,475-6
[40]Williams ibid
[41]Gilmore [1979] 1 A Crim. R 416
71 Those two exceptions are charges 7 and 9. I consider there is a strong ground for a disparity between the total effective sentence imposed by the previous sentencing judge and the total effective sentence I am imposing for two reasons. First, for charge 7, the principles that apply to re-sentencing after a re-trial do not apply, as this is the first time you are to be sentenced on this charge[42], and I must exercise my own judgement and my own discretion and sentence according to law. Second, I am sentencing you on charge 9 having regard to a maximum penalty of 10 years[43].
[42] ibid
[43] cf. Sentence [2017] VCC 461 paragraphs 3 and 38.
72 Although there is a new matter to take into account in mitigation, by way of the delay and stress occasioned to you by the granting of a re-trial after a successful appeal and the additional charge that was revived because of the successful appeal, and although you will receive the benefit of the ‘divergence in penalties’ that I earlier referred to, there will nevertheless be a disparity between the total effective sentence imposed in 2017 and that imposed today.
73 In the instinctive synthesis of all these matters, the sentences I have decided are just in all the circumstances for charges 7 and 9 cannot be artificially compressed to accord with the previous total effective sentence. Nor do I consider imposing the previous total effective sentence to be an appropriate exercise of my discretion for sentencing on all charges given the two significant differences in the sentencing tasks between the first trial and this trial. However, the sentences I intend to impose on charges 7 and 9 are lower than would otherwise have been imposed, because of the factors in mitigation, and in keeping with the spirit of the principles of sentencing on a re-trial.
74 Before I finally turn to the sentence, there are two further matters I must deal with. The first is that as a result of my sentence today, you become a registrable sex offender. You are convicted of seven class 1 offences, and seven class 2 offences. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. My associate will now ask you to sign a document to acknowledge that you have received notice of these reporting obligations.
75 The second matter that I need to deal with is that you are to be sentenced as a serious sexual offender on all the charges from charge 3 onwards, if you receive a term of imprisonment on charges 1 and 2, which will happen. Being sentenced as a serious sexual offender means the protection of the community from you is the principal purpose for which sentence is imposed despite any finding I make. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. However, the prosecution do not seek that, and I do not intend to do that.
76 Because of your status as a serious sexual offender, it is also necessary for the sentences I impose to be wholly cumulative unless I order otherwise. Because of the principles that apply to re-sentencing that I have outlined, I propose to order otherwise and make the same orders for concurrency as the first sentencing judge on all charges except charge 7. For the charges on which I will sentence you differently, charges 7 and 9, because of the factors that operate in your favour that I have outlined, I have decided to order considerable concurrency. In saying that, I have also had regard to the limits the serious sexual offender sentencing regime places on the application of the principle of totality as stated by the High Court[44].
[44]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
77 In sentencing you, I take into account that deterrence, especially general deterrence, is of the utmost importance in cases involving sexual offending against children. That means that by my sentence of you the court must seek to deter other men from committing sexual offences against children. I find that my sentence has a much lesser role to play in deterring you from reoffending.
78 The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence, and denounces such offending, particularly committed against children, with the damage that has caused. These principles apply, no matter how long ago the offending occurred.[45]
[45]DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59
79 You are convicted and sentenced as follows:
80 Charge 1 – indecent assault of a girl under 16 – 6 months’ imprisonment;
81 Charge 2 – indecent assault of a girl under 16 – 2 years’ imprisonment;
82 Charge 3 – indecent assault of a girl under 16 – 2 years’ imprisonment;
83 Charge 5 – indecent assault – 2 years’ imprisonment;
84 Charge 7 – sexual penetration of a child between 10 and 16 – 4 years’ imprisonment;
85 Charge 8 – indecent assault – 2 years’ imprisonment;
86 Charge 9 – sexual penetration of a child between 10 and 16 – 4 years 3 months’ imprisonment;
87 Charge 10 – indecent assault – 6 months’ imprisonment;
88 Charge 11 – indecent assault – 6 months’ imprisonment;
89 Charge 12 – indecent assault – 4 months’ imprisonment;
90 Charge 13 – indecent assault – 2 years’ imprisonment;
91 Charge 14 – indecent assault – 6 months’ imprisonment;
92 Charge 15 – indecent assault – 8 months’ imprisonment;
93 Charge 16 – indecent assault – 3 months’ imprisonment;
94 Because concurrency is guided by the usual principles for charges 1 and 2, but those principles are modified for charge 3 onwards due to your status as a serious sexual offender, for ease of understanding I frame the direction in the usual concurrency terms for all charges and not as required by s6E Sentencing Act for charges 3 – 16.
95 The sentence on charge 9 is the base sentence. I direct that six months of the sentences imposed on charges 2, 3, 5, 7, 8 and 13; two months of the sentences imposed on charges 1, 10, 11 and 15; and one month of the sentences imposed on charges 12 and 16 be served cumulatively on the sentence imposed on charge 9 and on each other. The sentence on charge 14 is concurrent.
96 That makes a total effective sentence of 8 years 1 month. I direct that you serve a minimum of 6 years before becoming eligible for parole.
97 I declare that you have served 533 days in pre-sentence detention not including today and that these are to be deducted administratively from your sentence.
98 You have been sentenced as a serious sexual offender on charges 3-16.
99 I have signed the disposal order which was made by consent.
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