Director of Public Prosecutions v Fields (a pseudonym)
[2021] VCC 673
•24 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSS FIELDS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 May 2021 |
DATE OF SENTENCE: | 24 May 2021 |
CASE MAY BE CITED AS: | DPP v FIELDS (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 673 |
REASONS FOR SENTENCE
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Subject: Incest x3. Digital (rolled up, three occasions); penile/vaginal (rolled up, two occasions) and a single occasion penile oral. Sexual assault x 3 against older daughter. Charge 3 and Charges 4-6 all standard sentence offences. Father and two biological daughters. Children aged 8-11 for incest, 12-14 for sexual assault. Possess child abuse material; guilty plea to all. Prior appearance for incest (against sibling). The victims had been offended against sexually by the accused man’s father and he was aware of that fact.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B Sonnet | Office of Public Prosecutions |
For the Accused | Ms J Swiney | Martin, Middleton Oates Lawyers |
HIS HONOUR
1Ross Fields[1], you have pleaded guilty to seven charges laid on the two indictments filed in this Court. On one indictment, there are three charges of sexual penetration of a child (incest) and three charges of sexual assault of a child under the age of 16. They relate to acts against two of your daughters. There is a single charge of possession of child abuse material on the other indictment. The maximum penalties are correctly spelt out in the agreed summary. There is reference in that document to the application of the Standard Sentence Scheme for one of the incest charges (Charge 3) and for the three sexual assaults (Charges 4-6). The summary also spells out that Charges 1 and 2 are rolled up charges relating to three acts for Charge 1, and two acts for Charge 2. The balance of the charges are single events.
[1] A pseudonym
2Incest is a Category 1 offence and a term of imprisonment is mandated under the Sentencing Act. That is by-the-by, as it is conceded by your counsel that a substantial prison term is the only possible outcome here. Plainly, that is so.
3You are 34 years of age and you have one prior appearance in this Court back in 2013 on three charges of incest with a sibling. Though they were charges of incest and that would ordinarily be a highly relevant prior matter, I will not treat it so here. That conduct was obviously nowhere near as serious as the offending I am dealing with. You were offending as a sibling, not as a father, and as I understand it, you were yourself a young or youthful offender when those acts took place. I note that a s.72 undertaking following conviction was the outcome back in 2013, which seems to confirm that was the position.
Facts
4The lengthy written summary of prosecution opening, dated 17 April 2021 details your offending and the background to it. Your counsel Ms Swiney informed the court that it was an agreed statement of facts. It was marked as Exhibit A. There is then no point in my descending to all of the detail of that agreed summary in these my reasons. I will sentence in accordance with it. I will say something only quite briefly so that my reasons and my ultimate sentence can be understood by those who may read these remarks.
5You were between 31 and 33 years old at the time of these offences. You and your ex-partner, Paulette Campbell[2], had three children in the course of your relationship being Harriet[3], Edward[4] and Stacey[5]. You and Ms Campbell separated in 2009. Your two daughters are your victims. Stacey is the younger child and Harriet is the older girl[6].
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
[6] Note that birth dates have been removed
6After separation, you remarried and had a daughter.
7You had entered into a private agreement with Ms Campbell as to access to the three children. You had regular access, collecting them on a Saturday morning and returning them on a Sunday afternoon. This was up in Mildura, where the parties lived.
8The summary describes the nature and setting of the sexual acts, all of them taking place during the periods when you had access with your children. There were three acts of digital penetration of Stacey when she was aged between 8 and 11. The first of those acts occurred not too long after your own father had committed suicide. He had taken his own life after he had been charged with various sexual acts targeting these same victims. I was told by the prosecutor, Mr Sonnet, that those acts were said to have occurred between January 2013 and August 2016 and involved allegations of incest and indecent assault. You told Mr Ball that you believed they had taken place and yet you then offended against the same victims. That is really quite extraordinary.
9The last of the digital acts embraced by Charge 1 took place on 15 February 2020.
10There were the two acts of penile-vaginal penetration occurring, with the first when the girl was around 8 or 9, the second when she was 11.
11The single penile-oral act took place in early 2020 when she was 11.
12There are three separate acts relating to Harriet. These acts were non- penetrative so, of course, are not charged as incest. They are instead charged as sexual assaults, relating as they do to touching on the buttocks underneath her clothing (Charge 4), having her touch your pelvic area and then move her so that she lay on top of you, and rubbing her buttock area (Charge 5) and finally putting your hands under her underwear and rubbing her buttocks and just above her vagina on her pelvic area, (Charge 6). It appears that the last act took place on the night of your last digital act with Stacey.
13The girls confided in each other to a degree, complaining to each other and then to their mother.
14The summary discloses how the matter came to light. It was reported to the police on 17 February 2020. There were two video-audio recorded statements (VAREs) with Stacey, the first on 18 February 2020, the second on 16 May 2020, where she went into detail as to the fact of penile-vaginal penetration. Harriet made one VARE on 18 February 2020.
15You were arrested and interviewed on 19 February and made a number of damaging admissions and partial admissions. You admitted touching each daughter sexually. As I understand it, allegations of penile-vaginal penetration were not put to you as they were disclosed in a later VARE and you declined to be subsequently interviewed. However, in the police interview you denied any penetrative acts. The summary sets out some of your admissions. I see no need to repeat them here. In the course of the interview, you described your use of child pornography. As a result, your phone was seized and the examination of that and your computer disclosed a number of photographs and video files. The various categories are set out in the agreed summary, as are the number of images and video files. So much then for my summary of the summary. That is all it is. I will sentence in accordance with the much more detailed agreed summary marked as Exhibit A.
16This was serious offending indeed.
17You have been in custody since your arrest on 19 February 2020. Plainly enough, a trial was, at one point, at least contemplated. You pleaded not guilty and came up to this court on a straight hand up brief. There was one mention hearing in this Court where the issue of a ground rules and special hearing was discussed. The matter then settled and you were arraigned in December of last year. It is to your credit that you have pleaded guilty. The chronology leading to the ultimate resolution of the matter is set out in the summary. It was a relatively early plea.
Victim Impact
18There are five victim impact statements which have been read aloud. Now, Ms Swiney ultimately took no issue with the Court receiving those impact statements. They were marked as Exhibit B. She reminded me that Edward was not a primary victim, that much was very clear. It was also readily apparent that there are a range of matters which were not admissible within the various statements. In fact, I had raised some of those matters with Mr Sonnet. Neither Ms Swiney or the prosecutor saw the need to work their way through the portions which were not admissible, trusting that I would act only on the admissible portions of the statement, and this what I have done. There are, for instance, thoughts expressed as to what a victim would like to happen to you. There are some expressions of hostility. Well, I understand why they may feel that way, but of course I will not act on that sort of material. There is Edward’s statement and Stacey’s which speak of menace and threats. I cannot act on that sort of material. As I have said, Edward is not even a direct victim. The mother of your children speaks of a variety of potential diagnoses that have been made in relation to Stacey and one always has to be cautious about those sorts of matters. Undoubtedly, Stacey has been greatly damaged. There is no question about that. The actual diagnostic tag or label is not actually that important.
19I am not being critical about that sort of material appearing in this sort of document. It must be so hard to reduce into writing the impact of crimes as serious as these.
20There is no doubt that the impact of these crimes will continue to be significant for many, many years to come. You are the father of these two girls. They were reeling from the abuse at the hands of your father, as you well knew. So was your ex-wife. The family was very much in recovery mode. You were permitted access to them by their mother in that setting. How could there not be a massive sense of violation when these acts took place and when they came to light? It was a devastating blow. You have massively breached the trust that resides in you, their father. There is not that much utility in my delving into the detail set out in the impact statements. Your crimes are just so serious, that anyone would appreciate the high degree of impact. Your counsel conceded the sizeable and lasting impact of your crimes.
21The Court of Appeal has said that it is a well-known fact that young victims of incest carry the scar for their lives, and of course that is so (see the case of R v KHB[7]). It is not just the direct victims. Their mother has had her world shattered by this conduct. It has also impacted upon Edward.
[7] [2004] VSCA 219
22It is almost impossible, I am sure, to reduce these impacts into writing. Your ex-partner tries as best she can. Her life changed forever. What a predicament, to find that second note and to learn that she and her children had been betrayed by you, their father, when they were recovering from the abuse at the hands of their grandfather. There is a deep anger. She has watched her daughters struggle with their own impact and felt helpless. She speaks of Stacey blaming her for sending her for visits, whilst at the same time blaming her for taking her father away. That one sentence encapsulates how corrosive and confusing this sort of crime can be. So, the mother feels quite helpless watching on. She feels some guilt and that she is, perhaps in some ways, to blame. She feels a sense of failure. Well, she should not feel any of these things but she just does and she feels devastated. There is a loss of trust in others. She looks at her youngest daughter, a girl who hates herself and her life, a girl who is so greatly damaged. That girl, your daughter, is 12.
23Her children speak of their fear and confusion at this conduct occurring after the previous conduct at your father’s hands. Stacey was scared for herself but also for her siblings. Scared of that would happen if she told her mother. Scared that she would not be able to see her siblings. Blaming herself for not disclosing earlier. She also feels guilt. She should not; she just does. She was a young girl. Your conduct has fractured relationships including those between your daughters and your new daughter. Stacey does not want to be who she is and hates herself. Harriet sums it up. She says she believes that this will be with her for the rest of her days and that nothing will be the same.
24The impact here has been large. How could it not be? It is the very nature of this crime to cause long lasting impact, even impacts that will not be apparent at this stage.
25I must not view this material and act emotionally, that is not what a judge does. I guard against that approach and, of course, the impact of a crime is only one of a host of matters that a judge must consider. I must be careful not to let it swamp other considerations. I take into account the impact of your crimes. Your crimes have had a devastating impact. That impact will reverberate into their future lives for many years to come.
Submissions in mitigation
26Your counsel Ms Swiney had prepared and filed some brief written submissions on the plea. They were marked as Exhibit 1. She took me to your background. She filed a report from Mr David Ball, a forensic psychologist, which also had some detail as to your family and personal background, including your work history. She made submissions about the level of gravity of the offending and your risk of re-offence and your prospects of rehabilitation.
27Frankly, there were not that many matters raised in mitigation.
28In mitigation she relied upon:
·Your guilty plea;
·The stage of that plea;
·Your cooperation with the police;
·The presence of some remorse.
·An increased burden arising from COVID-19.
29Your counsel conceded that this was serious offending with only one possible outcome, namely a substantial term of imprisonment with a non-parole period. She accepted that you would fall to be sentenced as a serious sexual offender from the third sentence. She accepted also that the Standard Sentencing Scheme was applicable to the third charge of incest as well as to the three sexual assault charges and the single charge on the other indictment. She referred to a handful of cases though conceded that there had been changes to current sentencing practice in relation to the crime of incest.
Crown Submissions
30The prosecutor, Mr Sonnet, prepared some lengthy written submissions as to sentence, marked as Exhibit C. They included a chart of cases. I do not see the need to set out those written submissions in detail but they were mostly uncontroversial, speaking, as they did, of the seriousness with which the courts have viewed the crime of incest and making submissions as to the level of seriousness of these particular crimes of incest, as well as the sexual assaults. The Crown accepted there were some matters in mitigation including a relatively early guilty plea and some remorse. The submissions also dealt with the application of the Standard Sentence Scheme and the serious offender regime. Mr Sonnet had attached a chart of cases but submitted that the aspect of the known vulnerability of the victims arising from their abuse at the hands of your father, was something that set this case apart from so many others. There were no cases on all fours.
Background
31I will turn only briefly to your background. It is set out before me in the written submissions of your counsel as well as in the report of Dr Ball. I have no reason not to accept the personal and family background which has been placed before me. In such a setting, I do not intend to restate it all. You are now 34 years old.[8] You grew up in Mildura. Your mother died when you were 4. You were brought up by your father. You had a younger sister and she was the subject of the earlier incest convictions.
[8] Date of birth removed
32You left school at year 10 level and started an apprenticeship in hospitality, as a chef, as I understand it. You did not complete the formal components of the apprenticeship but worked in hospitality for many years. You have had a good employment record. You worked at restaurants, hotels, a winery and later in catering, in the mines, up in NSW. You shifted to driving and plant operation after a foot injury.
33You had been in a relationship with the children’s mother for about 5 years, separating in 2009. You met your current wife and married in 2018 and have a daughter who is one year of age. You have had only limited contact with them since your remand and have some doubts as to the status of that relationship. You have been working in custody. You are in fact doing well in custody. Having a job is, no doubt, instrumental in that.
34You have that one appearance in your prior criminal history. Even though it is for the crime of incest, given the factual setting and your age at the time and the sentence imposed, it does not greatly inform my task. In fact it more than hints at a troubled sexuality or sexual development, which is picked up in the report of Mr Ball.
Mr Ball’s report
35I have the report of Mr Ball. There is no reliance on any of the principles from the well-known case of Verdins[9]. Mr Ball believes you are of normal intelligence. You have minimal insight into your offending behaviour and general psychological functioning. You gave an account to him of sexual abuse at the hands of an adolescent neighbour when you were about 10 years old. You told Mr Ball that this led on to you experimenting with the neighbour’s younger sister and brother and then your own sister. You acknowledged to Mr Ball an attraction to young girls. There are no serious health issues or any worrying issues with drugs. You told Mr Ball that your own father had sexually abused both of his granddaughters, being these same two victims. Mr Ball reports that you struggled to offer any meaningful insight into your actions. You said “I don’t know what led me to be doing the exact same thing, I know it was wrong, very wrong. I’m disgusted with myself.” You thought there might be some connection to the child abuse material you were accessing, though Mr Ball does not express any view on that score. No does he express any opinion as to the existence of any link between those earlier sexual events you speak of and these crimes. Ms Swiney does not suggest there is any evidence of a link and I am not allowed to speculate about that.
[9]R v Verdins [2007] VSCA 102; 16 VR 269; 169 CrimR 581
36Mr Ball carried out a risk assessment. You are a moderate risk of sexual reoffence. Of course, that risk may well reduce if you successfully complete a sex offender’s treatment program. Mr Ball says that you would have satisfied the diagnostic criteria for paedophilic disorder, non-exclusive type, sexually attracted to females, limited to incest. He says that condition is still current. He speaks of your level of regret and remorse. You knew what you were thinking and doing was wrong but didn’t know what to do or which services to access. He sets out the treatment that you need and the challenges in terms of safe management in the community. I take into account that report in the ways urged upon me.
Guilty Plea
37I turn now then to the other matters raised in mitigation. The first of those happens to be the largest matter in mitigation and it is your guilty plea. You have pleaded guilty. It was not at the very earliest of stages. At least no committal was conducted and hence no witnesses were ever cross-examined. You would never have been able to cross examine your daughters in the lower Court. That takes place up in this Court, by way of special hearing. You pleaded not guilty and came up by way of straight hand-up brief. You then dithered around a bit. There was talk of the need for special hearings and a ground rules hearing and need to consider the appointment of intermediaries. You took some months to accept the offer which had been put by the prosecution, but ultimately you accepted. Though not a plea at the earliest of stages, there are enough that take place later than yours. In fact, it settled up relatively quickly once up in this Court and I observe that it was a pretty disrupted year last year with COVID-19. It would have made it much harder to confer meaningfully with you and to obtain instructions from you.
38There is a very strong utilitarian value in your guilty plea. You have ultimately taken full legal responsibility for your offending. That is undoubtedly important. The community has been spared the time, cost and the effort associated with a contested committal in the Magistrates Court or a criminal trial up in this court. All the witnesses have been spared the experience of giving evidence. That may not seem much but it actually is a great deal. It is important in any case but assumes greater importance still in this sort of case. I accept your counsel’s submission in that regard. Your daughters in particular have been spared that experience. They are still quite young. Even with all of the advances taken to try to make the giving of evidence easier and fairer, from my observation, it is still most often a deeply traumatic experience. Well, it has not been necessary here. You have admitted your guilt. You have admitted your daughter’s allegations. They have not had to relive them in a Court. So your guilty plea is actually worth a lot. They are totally vindicated. Harriet and Stacey, Edward and their mother, as well as other relatives have all been spared the potential ordeal of giving evidence in court.
39You have facilitated the course of justice by pleading guilty. I am going to pass a significantly lesser penalty because of these matters. That is the law.
40I also take into account your level of co-operation with the police. Whilst you did not provide complete admissions, you certainly admitted acting sexually towards your daughters. It made the conduct of a trial pretty unrealistic. I accept that it was probably always going to settle.
41You also disclosed to the police your use of the child pornography and that admission was made voluntarily by you and it was that which led on to the seizure and examination of your devices and the laying of the charge relating to the child abuse material. That sort of admission is worthy of significant extra weight, see R v Doran.[10]
[10] [2005] VSCA 271
42So I take into account your level of co-operation.
Remorse
43I turn now to the issue of remorse. Ordinarily a guilty plea is evidence of some remorse. I have your interview with the police and though you were not prepared to admit everything you had done and denied penetration, those admissions that you did make were accompanied by some expressions of remorse. However, there was also a decent level of lack of insight on display in the interview, with you saying for instance that some of the touching had been ‘a bit too friendly’ (see Questions 167-8) or ‘nothing serious, just touching in inappropriate places’ (see Question 178).
44However, you were certainly not proud of what you had done and were trying to understand why you had done what you had done. You were just not prepared to make the full admissions as to penetration. Ultimately though, you have admitted those acts by your guilty plea. There is the report of Mr Ball and his opinion as to the presence of remorse and regret.
45It is apparent from that report that you still to some extent have a lack of insight into the damaging effects of your conduct and as to why you have acted in the way that you have. For whatever reason, you have dealt with them sexually. You were and are a paedophile and necessarily, there will be some lack of insight or empathy or some cognitive distortion to act in the way that you did. I am prepared to find then that you would be prepared in the future to explore why you did so act. You may well be amenable to treatment and programs.
46I am prepared to find that you do have some level of actual remorse for your crimes. I take that into account in mitigation. You are a work in progress with much work ahead of you in custody in the years which lie ahead.
Rehabilitation
47Your counsel argued that I should find that you have some prospects of rehabilitation. The Prosecution submitted that the Court could only be guarded and really, those concepts probably amount to the same thing.
48You will be receiving a lengthy term of imprisonment that will surely serve to deter you to a degree.
49You may well be required to undertake a sex offender’s program as a condition of applying for parole. It is hard for me to make any judgements as to how you will respond to such a program but as I said a moment ago, you are at least amenable to it; some people are not.
50Upon your release, you will have the significant impediments to further interaction with any children arising from your lifetime registration under the Sex Offenders Registration Act.
51It would be startling if you ever had any unsupervised access with any of your own children ever again. The two victims themselves will be adults at the time of your earliest possible release in any event.
52Will you avoid contact with children? I cannot know that. You are obviously sexually attracted to children. You clearly have, to some extent, a warped sexuality. You sexually interfered with your own children, even with the understanding that they had been deeply damaged by such conduct at the hands of your own father over a number of years.
53There is some remorse. There is the limited insight I spoke of a moment ago. You are very much a work in progress. Mr Ball speaks of the risks and the difficulties in your being managed in the community. Hopefully, treatment will be of use and reduce that risk down the track. You are presently not hostile to exploring those issues. I certainly will not write you off and say you have no prospects of rehabilitation. I have the risk assessment; I am prepared to act on it. Whilst I can only be quite guarded, I do accept your counsel’s submissions and find that you have some prospects of rehabilitation. There is also an obvious enough risk of re-offence though surely not with these victims.
COVID-19
54I turn to the aspect of COVID-19. The impact of the COVID-19 virus was not mentioned in your counsel's written submissions, but was raised in the course of the plea. The COVID-19 virus and the response to it by those running the prisons has undoubtably increased your prison burden. You have been in custody throughout the relevant period. Prison has been a more stressful environment. Social distancing has not been easy. No doubt there has been a worry about catching the virus in such a setting where there is no level of autonomy.
55Also, a worry about the predicament of your wife and young child out in the community, a worry as as to how they are faring amidst the pandemic. I also take that into account. You have spent over 450 days in custody. For a very large portion of that period, there would have been no in-person visits and a more limited range of courses.
56Things have though, picked up significantly.
57As to what lies ahead, it is very hard for me to know. That uncertainty is not that easy for a prisoner and I take that into account. The impacts of the virus upon prisoners has been lessening, with visits resumed and courses getting back underway, but we are obviously experiencing these ups and downs. At least you have had a job.
58The events of the last two or three months with the ‘circuit-breaker lockdown’, as it was called, and the temporary suspension of visits which that produced shows that, whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may yet start up again. There will be some ongoing anxiety amongst prisoners as to how they will fare in the future. I take that into account as well. I cannot know if limitations will start up again and I must not speculate on that score.
59I take into account the impact of the virus in the ways urged upon be by your counsel, Ms Swiney.
Standard Sentence Scheme
60The Standard Sentence Scheme applies only to one of the three incest offences as well as to the sexual assault charges. In a way, it was a strange decision to roll up the first two incest charges, as three of the acts relied upon in those two rolled up charges did take place after the commencement date of the standard sentencing scheme. In each case, one act did not and for that reason the Crown submit that the scheme does not apply to Charges 1 and 2, as they are between dates charges with the first date predating the Scheme. I will act on that concession, though have wondered as to the accuracy of it. This is not a between dates charge where only one act is said to have taken place sometime in that between dates period. This is a between dates charge where three acts for Charge 1, or two in the instance of Charge 2, are said to have occurred and some of the acts post-date the provisions coming into force. Anyway, it is not for me to decide how an indictment should be framed. I will act on the concession made by Mr Sonnet as to the standard sentence scheme applying only to Charges 3-6.
61The effect of that scheme has been discussed in a number of cases including in the case of Brown[11]. I also have regard to the discussion of the provisions set out in the Judicial College of Victoria’s Sentencing Manual.
[11] [2019] VSCA 286
62Pursuant to the Sentencing Act provisions the period of 10 years is the standard sentence for the single offence of incest. It is four years for the three sexual assaults. That period in each case is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness, see section 5A(1)(b). That is to say without reference to purely personal matters, see section 5A(3)(a).
63What is plain from the Act itself and from those decisions interpreting the Act is that the standard sentence is only one of a number of matters that I am required to take into account, see s.5B(3)(a) and (b). Where it applies, I must and do take it into account as one of the factors, but the scheme was not intended to interfere with the intuitive synthesis that is at the heart of sentencing in this State, nor to lead to any consideration of two-stage sentencing processes.
64It does not have any primacy over other factors which must be taken into account. It introduces an additional factor in the form of the legislative guidepost.
65It does not and must not represent a starting point from which the sentence should be fashioned. I do not start at that point and then work my way either up or down from the standard sentence figure.
66Nor does the scheme otherwise affect the matters that a Court must take into account. It does not change the requirement to, or means of, assessing the seriousness of the offence.
Current Sentencing Practice
67The Standard Sentencing Scheme does, however, impact upon the extent of any reliance on current sentencing practices derived from cases dealt with prior to the scheme coming into force. Consideration of current sentencing practices is deliberately limited by these provisions. Whilst of course I can still look at the principles from past cases, where it applies the scheme sets up what might be described as a ‘clean slate’ in relation to current sentencing practices. That is to say, I must only take into account current sentencing practices in relation to cases where the scheme applied to those past sentences.
68Here then, I can have regard to past sentencing practices predating the Scheme for Charge 1 and 2 but not for Charges 3-6.
69In a way, it is actually quite academic.
70That is because current sentencing practices for the crime of incest, as disclosed by past sentences, would have been very much limited by virtue of the strong observations made in the cases of Dalgleish[12].
[12]DPP v Dalgleish (a pseudonym) [2016] VSCA 148, [2017] HCA 41 and [2017] VSCA 360
71Though I must not have regard to current sentencing practice for the matters covered by the Standard Sentencing Scheme unless the Scheme applied to those past sentences, the principles which govern sentencing for crimes against children are very firmly established in many cases, which pre-dated the operation of that Scheme.
72The crime of incest has always been viewed very seriously by the courts. The prosecutor’s submissions refer to the case of Walsh[13]. They could have as easily referred to countless other cases including R v MJ[14].
[13]DPP v Walsh [2018] VSCA 172
[14] [2000] VSCA 173
73In the decision of RBN v The Queen the President of the Court of Appeal stated:
'This court has often said that incest is a crime of great seriousness. It is an appalling crime involving the worst kind of breach of trust as between parent and child, and it is notorious that it causes long-term damage to the child victims, whom it is the parent's first obligation to protect.'[15]
[15] [2011] VSCA 261 at [13]
74Many cases from our Court of Appeal re-state and clarify those same principles. There was a very clear pronouncement from the Court of Appeal in the case of Dalgleish[16]. So too the view of the High Court in that same case[17] and the remitted hearing in the Court of Appeal[18]. That series of decisions spelt out in some detail the seriousness of the offence and the many reasons for that.
[16]DPP v Dalgleish (a pseudonym) [2016] VSCA 148
[17] [2017] HCA 41
[18] [2017] VSCA 360
75The Court of Appeal dealt with the misconception that they said had seemingly developed as to crimes of incest not really being crimes of violence.
76Sexual penetration of a child is by its very nature an act of violence.
77The Court of Appeal in Dalgleish[19] concluded that current sentencing practice did not reflect the objective gravity of the offending, or the moral culpability of the offender. The court spoke of the recurring themes in cases involving an offender with ongoing parental responsibilities towards a child under 18. The recurrent features being extreme invasion of the victim’s person, exploitation of a vulnerable child, violation of societal norms, long-term and severe impact, serious breaches of trust, and the undermining of familial roots of society. These features are common in incest occurring across the range of seriousness. But the Court of Appeal went on to say that the factors distinguishing worst case offending from mid-range offending, was the nature and the extent of the offending conduct, its frequency and duration, and the circumstances in which it occurs.
[19] Ibid
78The Court of Appeal concluded that the sentences imposed in the past devalued the objective gravity of the offence as informed by the egregious breaches of trust, and the consequences for victims. Now I am dealing with one offence of incest covered by the standard scheme. So for that matter, past sentencing practices prior to the scheme are of no value to me at all.
79In so far as your counsel referred me to sentences set out in Reid[20] she conceded that those past sentences as indicative of current sentencing practice would be specifically excluded for a crime covered by the Standard Sentencing Scheme which Charge 3 is. Charges 1 and 2 are not covered by that scheme but are subject to the application of the principles from the decisions in Dalgleish. See also the case of Grantley[21], which speaks of the changing landscape for incest sentencing.
[20]Reid (a pseudonym) v The Queen [2014] VSCA 145
[21]Grantley (a pseudonym) v The Queen [2018] VSCA 112
80It follows then, and this is conceded by your counsel, that not much guidance can be taken from the past sentencing practices referred to in Reid which predated Dalgleish. Statements of principle, are of course, in a different position. I can and do have regard to them, whether they were provided before or after the commencement of the standard sentencing scheme, or before or after Dalgleish.
81I have looked at the cases to which I was referred by both parties and can say that they were only of very minimal assistance to me. None of those cases is on all fours. I have to sentence you for your crimes.
Gravity of offences
82I must pay regard to the gravity of the offences before the court. There is a real danger when counsel or a Judge descends to describe whether an offence is a serious example of a crime. It can be so easily misunderstood. Incest is an inherently serious crime when it is committed by a father upon a child.
83The conduct for which I am passing a sentence occurred on multiple days. Charge 1 and 2, though not covered by the standard sentence scheme, are in fact rolled up charges where your total actual conduct is what I must pass sentence for. They are not representative charges. They are so clearly more serious than a single act on a single day. They did not occur on a single day.
84In the case of Charge 1, you digitally penetrated your daughter Stacey in 2017 when she was 8; again in 2019 and again in 2020. They, and for that matter, all the other offences, were brazen. They all occurred when other children were in the same house. There was the penile-vaginal penetration on two occasions, one when she was 8 or so, the other when she was about 11. She feared she may fall pregnant. Finally, there is the single charge of penile-oral penetration in early 2020. That was a single act. That crime is covered by the Standard Sentence Scheme.
85In each case, you knew that what you were doing was seriously wrong. You also knew that Stacey and your other daughter Harriet were recovering from serious sexual abuse at the hands of your own father who had killed himself upon being charged. It is quite extraordinary that you would prey on these same two victims. They were vulnerable and damaged. You knew that. You used the access visits to abuse them. You have totally exploited your children. You have totally warped and betrayed those relationships and caused your daughter’s immeasurable harm. Your culpability is high.
86Incest is based on the existing familial relationship and it has built into the offence itself the notion of a breach of trust. It is one of the reasons it has such a high maximum penalty. I must not doubly count it when dealing with the offences committed against Stacey.
87In assessing the seriousness of the sexual assault charges against Harriet however, it is a very different matter. That offence does not have built into it the aspect of breach of trust. It can be committed by a variety of individuals and not always in a setting where there is any breach of trust. The breach of trust for those three offences committed against Harriet was very large. You were her father and were exploiting her sexually whilst she came to you for access. It was under your roof. So, the breach of trust in the case of the sexual assaults was sizeable and that much is conceded by your counsel.
88There have been many cases dealing with the seriousness of possession of child abuse materials. The principles are very clear from cases such a Garside[22] and Zarb[23]. It is a serious and morally depraved crime and is actually harmful to children. But for the people who wish to possess and view this material, there would be no market for it. It is the existence of the market which drives the production of this material and each image has an actual living, breathing victim. General deterrence hence looms large. Amongst many other considerations described in the case law, the court is to assess the nature and content of the images and the purposes for which they are possessed. There is no suggestion here of any profit motive or commerciality here. No suggestion of any distribution. So those aggravating factors are not present. The collection is not nearly as large as some we see but was still large enough. The images themselves were obviously graphic enough and it is serious offending, as the many authorities dealing with that style of offending make plain enough. You disclosed the conduct to the police and that led to the examination of the devices.
[22]DPP (Cth) v Garside [2016] VSCA 74
[23]DPP (Cth) v Zarb [2014] VSCA 347
89Now your counsel spoke of the spectrum of offence seriousness and whilst conceding that the incest charges were serious, argued that one could see cases with a much higher level of depravity and seriousness. See paragraphs [18] and [19] of the written submissions. The prosecutor argued that Charges 1 and 2 represented very serious examples of incest, Charge 3 a serious example.
90One can often enough envisage a worse case of any crime coming before the courts, including crimes of incest or sexual assault, or possession of child abuse materials. Some cases have long-term duration or high levels of frequency, or both. There might be pregnancy. There are sometimes physical acts of violence over and above the actual sexual act. Or filming of the acts. Or acts designed to degrade and humiliate. Sometimes there is ‘in company’ offending. The possibilities are endless. We, as Judges, I am afraid, we see them all.
91The frequency and duration of offending are often enough important considerations. However, the circumstances in which the offending occurs and the nature of the act is also very important. The circumstances here are of a known vulnerable young girl recovering from acts at the hands of your own father. You knew that. That is a serious feature of this case both in relation to the incest charges and for that matter the sexual assaults.
92The incest charges on this indictment are, in my view, serious examples of a serious crime. There is always a danger in trying to rank offences by applying an adjective to describe them. Low level, mid-level high level. They mean different things to different people. It is a practice that has been disapproved by the Court of Appeal, see the case of Weybury[24]. Your counsel spoke of the spectrum of offence seriousness and sought to contrast your offences with ones that she was suggesting were worse or far worse. That does not greatly assist me. She was certainly not suggesting that these were low level examples of the crime of incest, plainly they were not. She was saying that they were not in the most serious category and did not have the level of depravity or seriousness on display in some other cases. Well, applying the High Court decision of Kilic[25], the worst category offending would receive something close enough to the maximum penalty.
[24]DPP v Weybury [2019] VSCA 120
[25]Kilic v The Queen [2015] VSCA 331
93The fact is, the ability to envisage a worse example or different example, does not render the instant case any less serious than it actually is. I must assess the objective seriousness of this case, and the ability to point to the absence of different aggravating features that might be present in another case, says very little about the seriousness of this case.[26]
[26]Harlow v The Queen [2017] VSCA 234
94So where then does your conduct lie on the spectrum of offence seriousness in terms of the incest? Well, it is not in the very worst category. It is, however, nowhere near the lower end of offence seriousness. Nor was your counsel suggesting it fell in that region. Your conduct, in my judgment, falls comfortably above the mid-range of offence seriousness, given the rolled-up nature of two of the charges, the date span and the known vulnerability of your daughter Stacey when you chose to offend against her. That last aspect is a serious aggravating feature. There is also very serious impact here, as I have spoken of in the earlier portions of these reasons.
95The sexual assaults do not involve penetration. They have a far lower maximum penalty and hence are obviously less serious, but they have the same aspect of the known vulnerability of that victim Harriet, as well as a sizeable breach of trust. Those things will not always exist for that offence but they do here. They are still serious crimes, given the factual setting, make no mistake, and your relationship to the victim, makes that so. Given the elements of the offence of sexual assault and the existence of another offence covering settings where there is actual sexual penetration, the crime of sexual assault of a child under 16 will never involve an allegation of actual penetration. There are a limited number of ways that such an offence can be carried out but none of them will be penetrative. They have the lesser penalty. However, it is worth bearing in mind, they are covered by the Standard Sentence Scheme. The four-year standard sentence specified is the sentence for an offence falling in the middle of the range of seriousness, taking into account only the objective factors. Of course, there are all the other matters that then come int play, as I have discussed when dealing with the application of the Scheme.
Serious offender provisions
96I will be sentencing you as a serious sexual offender from the time of the third sentence imposed by this court. Under the serious sexual offender provisions, unless I otherwise direct, the sentences passed upon you from the third sentence would be served cumulatively upon the earlier sentences imposed, and upon each other, and upon other sentences imposed by me (see s.6E of the Sentencing Act).
97Additionally, for the sentences imposed from that point, I must regard the protection of the community as the principal sentencing purpose. To achieve that purpose, for those charges where you fall to be sentenced as a serious sexual offender, the court does actually have available the power to impose a disproportionate sentence. The prosecution was not submitting that there was any basis or need for me to adopt that approach here. I make plain that I will not pass any disproportionate sentences in this case.
98I still must give weight to the serious offender provisions (see Beyer[27], R H Mcl[28], HPW[29] , Hopson[30] and also Gordon[31]). I must give weight to s.6E. It is clear though that I still must pay regard to the principles of totality of sentence. These principles, though modified, are still of importance here.
[27]Beyer v R [2011] VSCA 15
[28]R H McL v The Queen [2000] 203 CLR 452
[29]DPP v HPW [2011] VSCA 88
[30]DPP v Hopson [2016] VSCA 303
[31]Gordon v The Queen [2013] VSCA 343
Totality
99I have given consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your actual criminality. Your overall criminality is high. There is no reduction at all in your moral culpability here. That is conceded. A very substantial prison term is just inevitable here given the nature of the offences and the existence of multiple acts and two victims.
100Quite aside from the presumption in favour of cumulation found in s.6E, there would be the need to cumulate to some extent here. These were serious separate criminal acts. They did not all occur on the same day. Where charges were rolled up (Charges 1 and 2), obviously enough each separate act would have its own impact. Each would contribute to the overall impact. I have two different victims, both your own children. There is some temporal connection. It would seem that on one night, 15 February, you offended against both girls with the last act the subject of Charge 1 and the act the subject of Charge 6.
101I must otherwise order under s.6E. If not, every sentence from the third sentence imposed would cumulate upon the base sentence and upon each other. The ultimate sentence would undoubtedly be a crushing one in such a setting as that. As you will see I am going to order significant enough levels of concurrency. Totality is, as I have said, still an important consideration.
General
102In sentencing you, there are a whole host of matters that I must take into account. I must consider the various sentencing purposes being denunciation, rehabilitation, the need for specific and general deterrence, community protection and punishment.
103There are many matters which must be taken into account by a court including the offence maximum penalties, the impact of an offence and the fact of the standard sentence, where that scheme applies. I have to pay regard to current sentencing practices, albeit, in a in a slightly different fashion when dealing with a standard sentence offence.
104Having mentioned the various purposes, I say the following as to your prospects of rehabilitation; they exist. You have some prospects. I don’t ignore that fact. I can only be quite guarded though.
105I must punish you justly and proportionately. That is an important sentencing purpose.
106I must denounce your conduct. That is also important. You have committed serious crimes upon your daughters with sizeable and predictable impacts. It was reprehensible conduct which must be strongly denounced by this court.
107I must consider the protection of the community from you. That is the principal purpose for those crimes where you are sentenced as a serious sexual offender but it is plainly relevant to the crimes I am dealing with prior to that status being achieved. You obviously present some risk to the community.
108You must be deterred. You must be dissuaded from ever committing such crimes as these again. That is important.
109This court must also seek to deter others who might be minded to commit this type of offending. That purpose is known by us lawyers as the principle of general deterrence and it looms large in this sort of case. It is a highly relevant purpose of sentencing for any of the crimes laid on the two indictments before me. All of them involve the sexual exploitation of a child. In terms of the indictment with six charges, the child exploited was your own child. For the other indictment, in each one of the photographs or video files where a child was portrayed, that child was undoubtedly a victim. The case law speaks of the importance of general deterrence for that sort of offence as well.
110The courts must send a loud message to those who may think it open to sexually exploit children in any way. The courts, by the sentences passed in these kinds of cases, must make very clear to others in the community that such abhorrent conduct as yours will not be tolerated, and will be met by stern punishment. Hopefully, other like-minded offenders might be deterred. So, general deterrence looms large in my sentencing task.
Sentence
111You can remain seated, as I am sentencing using the WebEx link.
Indictment No. L10433779.A.1
112Charge 1 then is the rolled up charge of incest committed by the introduction of your finger into your daughter’s vagina on those three occasions. I convict and sentence you to 9 years' imprisonment. That will be the base sentence
113On Charge 2, the rolled up charge of incest involving penile-vaginal penetration, I convict and sentence you to 9 years' imprisonment.
114From this point on, you fall to be sentenced as a serious sexual offender.
115On Charge 3, incest constituted by the single act of penile-oral penetration, for which the standard sentence scheme applies, I convict and sentence you to eight years' imprisonment.
116On Charge 4, the first charge of sexual assault, I convict and sentence you to 2 years imprisonment.
117On Charge 5, another charge of sexual assault, I convict and sentence you to 2 ½ years' imprisonment.
118On Charge 6, the final charge of sexual assault, I convict and sentence you to 3 years' imprisonment.
Indictment No. L10433779.B
119On the other indictment, on that single charge of possession of child abuse material, you are convicted and sentenced to 2 years imprisonment.
Cumulation in relation to matters not covered by s.6E
120Firstly, I am going to direct as to the level of cumulation.
121I direct then that two years of the sentence imposed on Charge 2 is to be served cumulatively upon the base and other sentences.
Serious Sexual Offender from Charge 3 and beyond
122As I have sentenced you to terms of imprisonment on Charges 1 and 2, I have sentenced you as a serious sexual offender in relation to Charges 3 and beyond. That includes the single charge on the other indictment.
Cumulation unless otherwise directed – Extent of concurrency
123I now have to make directions as to the extent of concurrency. That is the extent to which I otherwise direct or order, under the provisions of s.6E of the Sentencing Act. I direct then that;
§seven years of the eight-year term imposed on Charge 3;
§18 months of the 2 year term imposed on Charge 4;
§22 months of the 2 ½ year term imposed on Charge 5;
§2 years 4 months of the 3 year term imposed on Charge 6; and
§18 months of the 2 year term imposed on Charge 1, possession of child abuse materials;
is to be served concurrently upon the base sentence imposed on Charge 1, and the partly cumulative portion of the sentence imposed on Charge 2, and upon each other.
124So it is to this extent that I otherwise direct under the provisions of s.6E. Those orders for concurrency translate into an additional three years 4 months cumulation upon the base sentence, Charge 1, and the part cumulative term imposed on Charge 2.
125As I say, I know this is not easy to follow, that is because I have followed the wording of the legislative scheme in directing, firstly, the measure of cumulation, and thereafter the extent of concurrency. Those orders, both as to cumulation and concurrency, in relation to the major indictment (L10433779.A.1), lead to a total effective sentence for those charges of 13 years and 10 months. On the other indictment (L10433779.B) there is only one charge. I have imposed that two-year term and I have cumulated six months upon the earlier charges.
Total Effective Sentence
126So let me then explain then what this all means. These orders for concurrency, together with my original order for cumulation, produce a global total affective sentence between these two indictments of 14 years and four months' imprisonment.
Non-Parole Period
127I am required to fix a non-parole period. Unless it is in the interests of justice not to do so, I am required to fix a non-parole period of at least 60 per cent of the relevant term (see s.11A). The relevant term is the total effective sentence (see s.11A(5)(b)).
128I do not believe it is in the interests of justice to fix a lesser ratio in this case. Your counsel was not suggesting it was. In fact I fix a period of 10 years during which you will not be eligible for release on parole.
Section 18 PSD
129I will order pursuant to the provisions of s.18 of the Sentencing Act that the period of 460 days is to be reckoned as already served by way of pre-sentence detention. That declaration is to be entered into the records of the court.
Serious Sexual Offender
130You have been sentenced as a serious sexual offender in relation to Charges 3, 4, 5 and 6, and charge one on the second indictment and that fact is also to be noted in the records of the court.
6AAA
131Had you pleaded not guilty and been found guilty by a jury of all the conduct that I am dealing with following a trial, I would have sentenced you to 18 ½ years' imprisonment. I would have fixed a non-parole period of 14 years.
132That section 6AAA declaration is to be noted in the records of the court.
Sex Offender Registration Act 2004
133You have been sentenced by me in relation to what are described in the Sex Offender Registration Act 2004 as three Class 1 and four Class 2 offences.
134It follows, you must comply with your reporting and other obligations under the Sex Offender Registration Act for the remainder of your life.
135I will shortly have handed to you a document that explains your obligations under the Act. You will need to acquaint yourself with it in due course, but I am simply at this stage having it provided to you to sign. That will signify that you have received these explanations as to your responsibilities under that Act.
136The Sex Offender Registration Act imposes a number of conditions upon you, including impediments to future employment in a variety of areas. There are meaningful impediments to your future contact with children. You must familiarise yourself with those matters, as any breach of the Act, or your reporting obligations under the Act, is itself a very serious criminal offence, and one punishable by a term of imprisonment.
Standard Sentence Statement
137I must also make a statement pursuant to sections 5B(4) and (5) of the Sentencing Act. Section 5B(4) of the Act requires that a court sentencing an offender for a standard sentence offence, state its reasons for imposing that sentence. Section 5B(5) requires me to refer to the standard sentence for the offences here, incest and sexual assault, and explain how the sentences I have imposed on you relate to the standard sentences.
138I am required to identify the facts, matters and circumstances which bear upon the judgment I have reached as to the appropriate sentence.
139I believe my lengthy reasons to this point will explain the reasons why the sentence imposed in each case covered by the standard sentencing scheme is lower than the standard sentence specified. As serious as the offending was there were a range of mitigatory features in play, including the presence of some remorse, your level of cooperation and notably, your relatively early guilty plea.
140By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentences, taking into account all the matters I am required to take into account, including the existence of the Standard Sentence Scheme. It is, as I have said, but one of many factors.
141Are there any other matters that I need to deal with at all?
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HIS HONOUR: Now, Ms Swiney, you've seen these documents before. I'm dealing only with the aspect of notification of his reporting obligations. It's a very lengthy document. It goes into his many requirements under the Act. I'm not contemplating he's going to be sitting there now and reading it, that would be impossible for anyone to do. He's simply being provided with that document. He's being asked to acknowledge, by his signature, receipt of the notice under that Act. I think I've seen that the document is in the room with him. I will have him sign it now unless you feel the need to explain any of this to him. So what do you want to do?
MS SWINEY: I don't need to explain it but I'm not sure that he has acknowledged that that's what's been handed to him, that's all.
HIS HONOUR: Well, I'm going to ask him in a moment. So, Mr Fields, I understand that you've had handed to you documents headed, 'Sex Offender Registration Act ' and below that, 'Notice of reporting obligations pursuant to the Sex Offender Registration Act.' Do you have those two documents in front of you?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. Maybe it's not been marked, but towards the back page there's a signature page which I'll get you to sign in each instance please, if you would.
OFFENDER: Yes, Your Honour.
HIS HONOUR: And I wonder if, whoever's with you, would witness that document please and sign as the relevant witness please.
POLICE OFFICER: All done.
HIS HONOUR: Thank you, all right. Well, those documents have been signed then, Ms Swiney. But look, in the future, he's going to need to read them carefully. They go into a lot of detail of course, and he'll need to understand his many obligations. Let me just see if there are any other matters that I need to deal with or any matters that I have overlooked. Mr Sonnet, any matters from you?
MR SONNET: No, Your Honour.
HIS HONOUR: Ms Swiney?
MS SWINEY: No, Your Honour.
HIS HONOUR: All right. You'll obviously be in communication with your client about what's occurred here today and his rights in relation to it?
MS SWINEY: Yes, Your Honour.
HIS HONOUR: Yes, all right. Well, that completes the sentence then, Mr Fields, and Ms Swiney will be in contact with you to discuss what's occurred here today. Do you understand?
OFFENDER: Yes, Your Honour, thank you.
HIS HONOUR: Yes, all right. I'll leave the Bench, I think. What time are we back in?
ASSOCIATE: 2 o'clock.
HIS HONOUR: I'll leave the Bench until 2 o'clock. I've got another case and the link will be disconnected in a moment. Yes, thank you.
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