Director of Public Prosecutions v Finch (a pseudonym)
[2014] VCC 194
•26 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01952
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES FINCH (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2014 | |
DATE OF SENTENCE: | 26 February 2014 | |
CASE MAY BE CITED AS: | DPP v Finch (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 194 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms R. Champion | Office of Public Prosecutions |
| For the Accused | Mr P. Skehan | Horvat Legal |
HER HONOUR:
1 James Finch, you have pleaded guilty to three charges of indecent assault of a girl under the age of 16, one charge of indecent assault and one charge of gross indecency with a girl. The maximum penalties are in relation to indecent assault of a girl under 16, five years’ imprisonment, indecent assault five years’ imprisonment, and gross indecency with a girl, two years’ imprisonment.
2 These crimes arise out of events which occurred between 1 January 1971 and 31 December 1979, involving complainant Andrea[1], and your offending on 24 December 1987, involving complainant Sarah. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing. Your behaviour was obviously quite unacceptable.
[1]Pseudonyms have been used for both complainants
3 I turn to only a brief summary of the prosecution opening, (exhibit A).
4 Andrea, who was born in 1966, was made a ward of the State when she was 9 months old. On 24 January 1970, when she was three and a half years of age, she was placed into foster care with yourself and your wife. You and your wife had three children. Your father-in-law also lived at the home.
5 Charge 1 is a representative charge. On one occasion in 1971, Andrea was naked on the kitchen table when she was 4 or 5 years of age. You sat on a chair and put your finger inside her vagina. Your wife and father-in-law walked in the back door and saw what you were doing. Your wife yelled at you, demanding, “What are you doing?”
6 On many occasions when Andrea was between three and a half to 8 or 9 years of age, you repeated that behaviour.
7 As I have stated, Charge 1 is a representative charge. You did this approximately once every three months and would say things to her such as, “This is our special game. It’s normal and daddies always do this. You’re special to me. Don’t say anything to anyone because this is our secret. I love you and this is our 'special thing'”. On some of those occasions you masturbated your exposed penis, which is alleged as uncharged acts.
8 Turning to charge 2. This occurred in 1971 when Andrea was a 4 to 5 year old. She was in the garage with you. You told her to suck your penis. You masturbated at the time and ejaculated in her mouth. This was the only occasion you inserted your penis into her mouth.
9 There were, however, other occasions when you made Andrea lick your penis after you ejaculated. Those occasions are also relied upon as uncharged acts. At this time your wife was in hospital having a hysterectomy.
10 Turning to Charge 3, when Andrea was 12 years of age, she went with you in your car to the shops. You parked in a vacant lot in a side street and put your hand up her dress, into her underwear, put your finger into your mouth and then into her vagina. You kissed her with an open mouth, moving your finger inside her vagina. You said, “Don’t tell your mother, don’t tell your mother”. When you got home, Andrea told your wife what had happened.
11 Turning to Charge 4, on an occasion in 1979 when Andrea was 13 years of age, she was in bed before going to school. You came into the bedroom, walked up to her and said, “[Andrea] touch it”. You had your penis out of your pants and it was exposed. Andrea said, “No, go away”. You then started masturbating and said, “Just touch it a little bit”. Andrea kept saying, “Go away”. You ejaculated on the floor then left the room. A short time later you walked back in with a bath towel, wiping up the semen from the floor. Later, Andrea got out of bed, walked towards you and said, “You ever come near me ever again I will go to the police myself”. That was the last time you did anything sexual to Andrea. Andrea not only told her mother but also her sister what you had been doing to her.
12 At the time of your offending, Andrea was young and did not realise that what you were doing was wrong. Every time it happened she told either your wife or her sister. On those occasions your wife would get angry with you. On occasions you would deny your offending, then admit it and promise never to do it again. Your wife would say to you, “If you do it again I’ll call the police”. Unfortunately you were not deterred.
13 In about 1970, Andrea told her sister that you were “showing me his willy and touching me”.
14 When Andrea was 6, in 1973, she also told her older brother what had happened. He told you what Andrea was saying and you denied the allegations.
15 When Andrea was about 10, she was at home with you and your older son. When your wife came home that day, Andrea ran to her. Your son followed and heard Andrea say to your wife words to the effect, “Dad was touching - fiddling with me”.
16 Every few months Family Welfare Division workers visited Andrea at her home, because she was a foster-child in your care. These were scheduled visits.
17 Before the workers arrived, you would take Andrea into her bedroom and say things to her such as, “They are coming out to make sure you are happy here, and if you tell them that you’re not, they will take you away and put you back in the home”. You would also tell her that they, including you, “loved her and didn’t want to lose her”. As a result of that discussion, Andrea never told welfare workers about what was happening, as she feared being taken away and put in a home. I have no doubt the threat of being taken away and losing contact with her siblings played very heavily on her mind. Your statements to that effect were, as an understatement, cruel.
18 In 1979 you and your wife adopted Andrea and thereafter Family Welfare Division workers did not attend the house.
19 Andrea further complained about your behaviour when she was about 14 or 15, telling your wife’s cousin and her husband. Unfortunately, they did not believe her.
20 Turning to your offending involving Sarah (Charge 5). This occurred in 1987 during one of the visits to Victoria by Sarah and her parents. Sarah was 10 years old at the time. Your own children had left home by then.
21 On Christmas Eve, when your wife went to midnight mass and everyone else was in bed, you went into Sarah’s bedroom. You pulled her pyjamas and underwear down and rubbed the outside of her vagina with your hand. Sarah woke, tried to move and she made a noise, and you replied, “Shh”. You continued to rub the outside of her vagina for five to ten minutes. You then saw lights coming up the driveway, stopped what you were doing and left the room very quickly. Sarah was too scared to move and stayed awake most of the night.
22 When it started to reach daylight on Christmas morning, she left her room, woke her mother and told her you had touched her.
23 A record of interview was conducted with you on 1 November 2012. You admitted you had interfered with Andrea, that you had placed your hand in a place where you should not have. That Andrea was about 4 or 5 years old the time it happened and that you touched her vagina. You said Andrea was 6 or 7 when it ended. You were ashamed of it at the time, you said. You said you may have put your fingers inside her vagina. You agreed you could have got Andrea to perform oral sex on you but you could not recall this. You did not believe you would have ejaculated or made Andrea lick your penis. You denied the incident at the shops when Andrea was 12 saying, “No, not at that age. No way, no way”.
24 You did not recall the incident when Andrea was 13 and you ejaculated on the floor in her bedroom. You did not recall telling Andrea that if she told Family Welfare, she would be taken away and put in a home. You said you never discussed with family members what was happening between yourself and Andrea and no one asked why you were doing certain things with her. You said a reason for sexually abusing Andrea was because your wife had a hysterectomy and as there was no sexual relationship you looked elsewhere for gratification. Turning to a young child for that gratification is nothing short of appalling behaviour.
25 Regarding Sarah, you said you knew you did something wrong with her, that the children were asleep, and you woke Sarah up and touched her on her vagina. You acknowledged Sarah did not want it to happen. You thought you had had a few drinks and that was why you did it to her.
26 I accept your lack of memory in the interview was not a conscious attempt by you to minimise your offending, rather the result of your age at time of interview, trying to recall events many years earlier.
27 I accept you made admissions to police regarding your offending and you expressed remorse for your offending in that interview. Further, I was told in 2007 you apologised to Andrea, and on another occasion you again apologised to she and her husband, when they confronted you about your offending in the late 1980s.
28 Your offending, in my opinion, is very serious indeed. There are aggravating aspects of your offending, including the gross breach of trust involved in it, an extensive period of offending involving Andrea, that there were two victims of your offending. An element of pre-planning, as you yourself described in answer at Question 127 in the record of interview.
29 Whilst not specifically an aggravating feature, you also made concerning threats to Andrea, that if she told authorities she would be taken from them and put into a home, which no doubt placed substantial pressure on her not to tell Family Welfare. Sadly, the requests by Andrea for help, telling people what you were doing to her went unheeded.
30 You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour and I do so. By your plea, you have spared the time and cost of a trial and witnesses, in particular the two complainants have been spared the ordeal of having to give evidence upon your trial. Further, I take into account in your favour, you intimated early your intention to plead guilty to these charges. No submission to the contrary was made by the prosecution.
31 In the circumstances, I accept your plea of guilty indicates remorse for your actions.
32 The victims of your offending have suffered considerably and I shall return to pass some remarks on that shortly.
33 As a result of your plea of guilty to Charges 1, 2 and 3, as these offences are Class 1 offences, pursuant to the Sex Offender Registration Act, you will be required to comply with reporting conditions under that Act for life. Your counsel, Mr Skehan, agreed such a classification and duration applied to you.
34
I have been told something of your personal history and circumstances.
Mr Skehan provided a helpful outline of his submissions and chronology for your plea hearing (Exhibit 4). He confirmed that at 84 years of age, you did not have any prior court appearances, nor was there anything subsequent. He referred to your volunteer work in the community, which I accept has been over a number of years, including as a volunteer with the Colostomy Association. Since 2004 you assisted at Epworth Hospital every Friday for about five hours each day. I was told your social life was effectively nil, apart from your volunteer work and visiting your daughter, Joanne.
35 In order to support you in court was your daughter, Joanne. I was told you were estranged to various degrees from your two sons. Whilst your daughter Joanne supports you, she did not condone your offending.
36 Turning to your offending, Mr Skehan conceded that it continued after you were made aware that your wife knew of it, and following your admissions to her of it. You promised you would not do it again, however you did not cease your sexual abuse of Andrea.
37 Mr Skehan conceded that there was an element of preplanning involved, in that you would wait until others either were away from the house or not in the vicinity, when you sexually assaulted Andrea. One incident occurred, as previously stated, in the car when of course only two of you were then present.
38 Mr Skehan conceded your offending was serious, involving a gross breach of trust, two complainants and over an extensive period of time, specifically in relation to Andrea, over a period of approximately eight to nine years. He noted as do I, there was a gap from that offending until you offended against Sarah later on.
39 Regarding your offending, Mr Skehan conceded that it was as a result effectively of your sexual urges not being met with your wife. Needless to say, turning to your child, whether foster or adopted, because of that is appalling.
40 Regarding Sarah, Mr Skehan submitted you were intoxicated at the time of that offending. However, correctly in my opinion, he was not relying on that in mitigation of your offending.
41 There was also a psychological report before me from Bernard Healey, Clinical Psychologist, dated 17 July 2013 (Exhibit 1). He said you were currently in receipt of medication for high blood pressure and also took Vitamin D. You told him you had been troubled over the years by your offending and had tried to push it out of your mind.
42 Mr Healey provided further details of your background and history. You were born in Essendon. You lived with your parents in Strathmore until 1956, at which time you left home when 26 years of age to marry. You have a sister, 73, although you have very little contact with either she or her family. You described your family home when you were a child as reasonably happy although said your father was a strict disciplinarian.
43 You did not have any major health issues until your wife died in 2010. Following her death you were diagnosed with a benign tumour on the brain and were undergoing regular MRI scans at Royal Melbourne Private. You described problems with immediate memory and balance. In 2007 you had procedures on the prostate and were since then being reviewed by a urologist. Alcohol and illicit problems had not been issues for you.
44 You attended Essendon Primary School, then Brunswick Central School for two years before you started work in 1945, when 15 years of age.
45 In the past you have been a keen participant in sport, including football and athletics.
46 You were initially employed with AG Healing from 1945 to 1960, then moved to Spartan Paint and became a sales representative.
47 In 1970 you joined Ansett, retiring in 1996. I accept you have had a solid work history from the time you ceased your schooling. I accept you have been a hard worker and a good provider financially to your family.
48 In retirement you worked in a voluntary capacity, as I said, at Epworth Hospital one day a week. You also belong to the Masonic Lodge, and are a life member of a District League, which I believe is a football club.
49 You married at the age of 26, as I said, and remained at the one address for 30 years before moving to a unit in 1989. You described your marriage as happy until your wife had a hysterectomy in the 70s, when sexual intimacy discontinued. You have a son, 55, a school teacher with whom you have little contact. Another son, 51, also a teacher, with whom you have some contact. You have more regular contact with your 53 year old daughter and her children. I was told you travelled extensively as a family and also when husband and wife, after the children left home.
50 Intellectual testing was conducted by Mr Healey which revealed a full scale IQ of 94. There were no major test signs of cerebral dysfunction. Personality testing was indicative of depression. Mr Healey referred to your memory difficulties which seemed, as I understood his report, to not be surprising given your age.
51 Since retirement you had acknowledged feelings of isolation and loneliness.
52 Turning to the report of Mr Healey and consistent with my opinion based on its contents, Mr Skehan was not relying on any of the principles in R v Verdins & Ors[2].
[2](2007) 16 VR 269
53
Having said that, it is relevant when sentencing you that you are 84 years of age. Further, that this is your first time in custody, indeed your first involvement with the criminal law. Such is relevant in mitigation of sentence and I discussed that during the course of your plea hearing with both counsel, specifically Mr Skehan, and I referred counsel to a number of authorities,
R v Whyte[3]; R v Iles[4]; R v Cumberbatch[5]; R v RLP[6], Austin v R[7]; R v Smith[8]; and TRG v R[9].
[3](2004) 7 VR 395
[4][2009] VSCA 197
[5](2004) 8 VR 9
[6][2009] VSCA 271
[7](1996) 87 A Crim R 570
[8](1987) 44 SASR 587
[9][2011] VSCA 337
54 I was also given a number of other documents, (Exhibit 2), which included details of your role as Justice of the Peace for over 32 years from 1980 to 2012. A certificate and documentation regarding your membership of the Lodge, as I have said, also a membership of the RSL.
55 There was also correspondence from the President of your local football club, dated 13 June 2013. He said you were a founding member of the club and prior to that, involved in the Youth Boys’ Club, the predecessor of the football club. You were the inaugural treasurer and also helped out on game days as team manager for your own sons’ teams.
56 He further said, over the past 42 years you had been actively involved in the club and had been awarded life membership for your commitment to it. You had also been made a life member of another District Football League. Whilst you had “retired” as a timekeeper for the senior team at your local football club after the 2010 season, you nevertheless had maintained an active interest.
57 There was correspondence from the Anglican Parish Church, confirming you are a parishioner of that church.
58
Given your age at 84, a lack of prior or subsequent offending, good work history and voluntary community involvement, I am satisfied the chances of your rehabilitation are very good, and when fixing an appropriate sentence
I must seek to maximise your chances of rehabilitation as they may be.
59 In this regard, as discussed with counsel, I accept also that you are a low risk of sexually or indeed any re-offending.
60 Also, as I have previously noted, you are currently 84 years of age and not spent any time in custody before. This will be your first time in custody, at an advanced age, and such is relevant in sentence.
61 There are victim impact statements in this matter and I have read those statements, they are eloquent. It is difficult to do justice to them in these brief sentencing remarks.
62 It is clear, however, from the statements that the victims of your offending have suffered considerably and continue to suffer as a result of your offending.
63 The victim impact statement from Andrea was read into the transcript. She described that as she grew older, she realised what you were doing to her was wrong. She felt scared and unsafe. She would withdraw from people that she believed she could otherwise trust. She felt alone and continued to feel that way. When she was 12 years old she hated herself, blamed herself and wanted someone to listen to her, but her pleas fell on deaf ears most of the time. She felt no one loved her or cared about her. When someone approached her whom she did not know she felt uncomfortable. She had anxiety attacks. She found it difficult to emotionally connect with people, especially her children, siblings and partner. She is on anti-depressant medication now. She has mental scars that she says will live with her forever. Attending counsellors over the years had not given her relief. Throughout her life she had always felt alone and as she became older, had drifted further from her brothers and sister. Attached to her victim impact statement was a poem that she wrote about seven years ago, reflecting her feelings and the impact of your offending upon her life. She described trying to speak out but not being heard. That she was a little girl who needed help but no one came. Despite having been married she was still in pain and fear and at times she felt very lost and sad.
64 In the victim impact statement of Sarah, she described a range of feelings and emotions as a result of your offending towards her. She described her trust having been broken at a young age and that it resulted in anxiety and fear. She feared when growing up of being without her mother, alone at night and feeling vulnerable.
65 She found it difficult as she grew up to develop close relationships and trust. She had difficulty watching movies and TV programs dealing with sexual assault and news reports regarding crimes against children. It was a relief for her that you eventually pleaded guilty and that she avoided the need to participate in a lengthy trial. She continued to feel unnecessary pain, fear, hurt and anxiety in her life as a result of your offending. She had struggled to maintain a positive future and outlook on life. You took away from her at an early age, the right she had to feel, safe, secure and supported.
66 A number of authorities have referred to the effect upon a victim of sexual offending, not the least is DPP v Toomey[10], in which his Honour Vincent J referred to social rehabilitation as being an important consideration. He cited DPP v DJK[11]:
“[16] This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery, which we attempt to achieve in order to ameliorate the consequences of a crime, can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which of course must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person, as a consequence of the commission of the crime, may well aggravate the situation. As the sentencing judge in the present case has pointed out, the damage has been profound. That in the experience of this Court, is by no means surprising. The possibility that very substantial harm can be sustained by child victims of sexual abuse, underlies in part, the legislative enactment of substantial maximum penalties for the commission of the offences …”
[10][2006] VSCA 90
[11][2003] VSCA 109
67 The effects upon a victim are a relevant sentencing consideration, see s.5, Sentencing Act 1991. I am conscious, however, that I must not allow the effects upon a victim or victims to swamp the sentencing process.
68 The courts have also repeatedly referred to the seriousness of sexual offending involving children, and in particular have referred to sexual offending by a parent on a child.
69 In PG v R[12], citation provided, the Court of Appeal stated:
“There are many obligations of parenthood. Those persons who have relevant expertise will also have a greater claim than judges to give detailed consideration to these, but about one obligation there can be no doubt. Parents must refrain from the knowing infliction of unnecessary harm upon their children. The (appellant) in that case was criminally in breach of this fundamental law. The gravity of his offending is of particular importance in deciding upon the appropriate sentence.
This is not the occasion to attempt to allocate degrees of seriousness to the crimes a parent might commit against his or her child. It is enough to observe that the sexual penetration by the parent of that child is a total repudiation of not only the high obligation of trust which ought necessarily to adhere to the relationship between the two, but also of the respect which every person, but especially a parent, owes to the psychological integrity of everyone else, especially his or her children.
The other indecent assaults, I am referring still in that case, of which the appellant stands convicted display a lesser, but nevertheless serious failure to fulfil a core parental duty, the provision of a safe, loving and nurturing environment.”
[12][2013] VSCA 9
70 There is no doubt that the seriousness with which courts regard a parent’s sexual abuse of their own child, and sexual abuse of children generally, is a serious matter.
71 Following terms of imprisonment being imposed on Charges 1 and 2, you are sentenced thereafter as a serious sexual offender on the remaining charges. I am aware, when sentencing you, of the provisions of s.6D and 6E, Sentencing Act 1991 and also the statements in R v RHMcL[13]. Section 6D states, "When sentencing such an offender, I must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence in light of its objective circumstances".
[13](2003) 203 CLR 452 at [76]
72 Section 6E refers to cumulation of such sentences, unless otherwise directed by the court.
73 In my opinion, consistent with the concession made by the prosecutor, I do not consider it appropriate to totally cumulate the sentence in relation to each charge. In my opinion there should, however, be some cumulation between the charges and also between the two complainants.
74 Further, I am of the view, also conceded by the prosecution, that I need not impose a disproportionate sentence in your case. In my opinion I can sentence you appropriately without the need to impose such a sentence.
75 Pursuant to s.6F Sentencing Act, I therefore direct it be entered into the records of the court, you are sentenced as a serious sexual offender on Charges 3 to 5 inclusive.
76 Ms Champion, on behalf of the prosecution, submitted your offending was very serious, involving two children, and over a significant length of time in relation to Andrea.
77 She submitted there was a gross breach of trust displayed by you and an abuse of power in particular in relation to Andrea, who was particularly vulnerable as a foster child in your family.
78 Further, she referred to your offending against her commencing at a very young age, ending when she was about 13, ie occurring over many years.
79 There was an abuse of power which was exemplified, she said, by your pressure upon her not to tell welfare workers, but rather to remain silent, which to a young girl, she submitted, the threat of being removed from home would have been a powerful threat.
80 Regarding Charges 1, 2 and 3, she submitted that they involved penetrative offending. She submitted they were at the higher end of offending for indecent assault.
81 She referred to you continuing your offending, despite having been confronted right from the very start, when your wife saw you in the kitchen and confronted you at that time. Family awareness of your offending, unfortunately for Andrea, was not a deterrent.
82 Turning to Charge 1, being a representative charge, Ms Champion submitted this charge reflected a pattern of offending by you over a significant period of time, up to approximately eight to nine years.
83 I discussed with both counsel whether R v SBL[14], was still the relevant authority in this regard, as further discussed in DPP v HPW[15] and DPP v EB[16]. Both counsel agreed those were still applicable.
[14][1999] 1 VR 706
[15][2011] VSCA 88
[16](2008) 180 A Crim R 314
84 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. The courts have repeatedly referred to the seriousness of sexual offending involving children. See, as examples, Burnett[17], Roosmalen[18], Wayland[19], Parente[20], and recently DPP v DJK[21], DPP v CPD[22], Clarkson v R[23]. This list is by no means exhaustive or up to date. There have been many such statements in many such cases.
[17](1993) 70 A Crim R 469
[18](1989) 43 A crim R 358
[19]14/9/1992 CA Victoria
[20]20/2/1996 CA Victoria
[21][2003] VSCA 109
[22][2009] VSCA 114
[23][2011] VSCA 157
85 There is also in my opinion an element of specific deterrence required when sentencing you. I note you do not have any prior court appearances and nothing subsequent has been alleged against you. However, your offending did involve two complainants and occurred over a significant period of time in relation to Andrea. There was then a significant gap between your offending against Andrea and your again offending, then involving Sarah.
86 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted in this regard, although whilst not specifically addressed in the report of Mr Healey, given the circumstances in which your offending occurred and at your age of sentence, and at your age when you will be released from custody, I regard you as a low risk. As such the need to protect the community from you need not loom large in the sentencing process. Having said what I have just said, I do not want that to be interpreted that I regard offending occurring within the family environment is any less serious than sexual offending against children generally. I do not mean to reflect that. That is not what I am stating.
87 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. When sentencing I have taken into account principles of totality and proportionality, being mindful of course of RHMcL.
88 On charge 1, convicted and sentenced to 22 months’ imprisonment.
89 On charge 2, convicted and sentenced to 12 months’ imprisonment.
90 On charge 3, convicted and sentenced to 12 months’ imprisonment.
91 On charge 4, convicted and sentenced to 6 months’ imprisonment.
92 On charge 5, convicted and sentenced to 12 months’ imprisonment.
93 Charge 1 is the base sentence and I direct the following in relation to concurrency and cumulation, bearing in mind from Charge 3, it is as serious sexual offender.
94 I direct that 5 months of Charge 2 be served cumulatively upon Charge 1.
95 I direct that 6 months of charge 3 be served concurrently and 6 months cumulatively upon charge 1.
96 I direct that 3 months of charge 4 be served concurrently and 3 months cumulatively upon charge 1.
97 I direct that 6 months of charge 5 be served concurrently and 6 months cumulatively upon charge 1.
98 That should result in a total effective sentence of 3 years 6 months’ imprisonment, and I direct that you serve a period of 16 months before you are eligible for parole.
99 Pursuant to s.6AAA, Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words, if you had pleaded not guilty and the jury had found you guilty of these charges, I would have sentenced you to gaol for 6 years and set a non-parole period of 4 years.
100 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 6 days in custody (up to and including yesterday, being 25 February 2014) by way of pre-sentence detention and I direct that be entered into the records of the court. I would like that confirmed please.
101
The prosecution made application pursuant to s.464ZF(2) Crimes Act 1958, for a forensic sample. This was consented to by counsel on your behalf.
I make the order in the terms sought. It will be for a saliva sample and I make the order on the basis of the seriousness of your offending. Basically that means, the authorities can get a saliva sample from you, and I must advise you, the authorities may use reasonable force in order to get that sample from you.
102 As previously stated, you are required to be registered pursuant to the Sex Offenders Registration Act 2004 for life and such is mandatory. Following this sentence, my Associate will approach you with documents for you to sign, simply acknowledging receipt of those documents. You are not asked if you want to be subject to register, I have made that order. You are simply signing acknowledging receipt of the paperwork that relates to it. I have already made that order.
103 Now, are there any other orders sought? PSD correct?
104 MS CHAMPION: Yes, Your Honour.
105 HER HONOUR: PSD correct, Mr Skehan?
106 MR SKEHAN: Yes, Your Honour.
107 HER HONOUR: Anyone want help with the maths? No?
108 MR SKEHAN: No, Your Honour.
109 HER HONOUR: No, all right, nothing repeated? All right, if you want to approach the dock you can, Mr Skehan. These are the documents he is simply being asked for receipt. If he does not want to sign, he does not have to, but that is the process, all right? Go with him, Ms Jackson, thanks. All right, thanks, Madam Prosecutor, I take it you will explain the anonymity issue and the names used?
110 MS CHAMPION: Yes, Your Honour.
111 HER HONOUR: To the - anyone who wants to know. All right, thank you, I have signed those documents. Is there anything further in this matter? No. Remove the prisoner thanks.
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