Director of Public Prosecutions v Fitch (a pseudonym)

[2019] VCC 2183

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUCAS FITCH (a pseudonym)[1]

[1] Matter has been anonymised to protect the identities of the victims.

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 December 2019
CASE MAY BE CITED AS:	DPP v Fitch (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2183

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott
For the Accused	Ms J. Swiney

HER HONOUR: 

1Lucas Fitch[2], after a trial lasting 11 days, a jury found you guilty of six charges of committing an indecent act with a child under 16, and seven charges of incest.  Those offences were committed between June 2011 and June 2014.  In the main, they were committed against your stepdaughter Madeline[3] from the time she was nine years old until she was 14 and a half.  Those acts included having her masturbate you, licking her vagina, penetrating her mouth with your penis and penetrating her vagina with your penis. You were also found guilty of a course of conduct charge of offending against your other stepdaughter, Abbey[4], during the same period when she was nine to 11 years of age.  On those occasions, you touched her vagina as she lay in bed at night.

[2] Pseudonym used

[3] Pseudonym used

[4] Pseudonym used

2These offences variously occurred in the girls' home, in their bedrooms as well as in your bedroom and at your holiday caravan at Hastings.  They were brazen, predatory attacks which constitute a gross breach of trust of both those young girls and of their mother.

3You will be sentenced as a serious sexual offender for a number of these charges and you will be subject to sex offender registration.

4In more detail, your offending is as follows.  Madeline Tranter who was born in June 2002 and Abbey Tranter was born in June 2003 are biological sisters.  Their mother is Licia, known as Lucy, Corriere.[5]  You began a relationship with Ms Corriere in approximately 2008.  You moved into her premises at Judith Street, Keilor East[6] in approximately 2009.

[5] Pseudonym used

[6] Pseudonym used

5At that time, Ms Corriere had three daughters, Madeline, Abbey and their younger sister Keira.[7]  You and Ms Corriere have a child together, Savannah[8] born in August 2010.  Your relationship with Ms Corriere broke down in January 2014.  At that time, you moved out of her premises.

[7] Pseudonym used

[8] Pseudonym used

6Madeline described the fact that when her mother went to work, you would pull out your penis and play with it, that you would touch her inappropriately.  She describes occasions when you would come into her bedroom at night when she was in bed and you would touch her vagina.  At times, she would threaten to tell her mother and the abuse would stop for a period before recommencing as before.  Those are all uncharged acts which set a true context of the specific offending.  She described the following specific occasions which formed the basis of the charges.

Shower incident. 

7When Madeline was about nine years old, you jumped into the shower with her.  You forced her to touch your penis until you ejaculated.  That is Charge 1 (indecent act with a child under 16).

Western Bulldogs game. 

8In or about 2013, on a Saturday, an incident happened before you were to take Madeline to a Western Bulldogs football game.  Ms Corriere was working and the younger girls were at their nonna's.  You called Madeline into her mother's room and started touching her inappropriately.  You started licking her vagina.  She said she could feel your tongue right up against her vagina and said it was uncomfortable and horrible.  That is Charge 3 (indecent act with a child under 16).

9You then forced her to touch your penis and to suck it which is Charge 2 (incest).  You then proceeded to put vaseline on Madeline's vagina before placing her in a sitting position on you and putting your penis inside her vagina. That is Charge 4 (incest).  Madeline could feel your penis in her vagina.  After she got off our penis, she went to the toilet.  She saw blood in her underpants.  She then had a shower.

Hastings.[9]

[9] Pseudonym used

10Madeline described the second time you had sex with her was at Hastings.  You had a caravan and annex at Hastings and you and Ms Corriere would take the children there for holidays.  On this occasion, Ms Corriere had gone shopping with the other children.  In your bedroom, you licked Madeline's vagina which is Charge 5 (indecent act) before forcing her to suck your penis, Charge 6 (incest).  You then put your penis inside her vagina which is Charge 7 (incest).  You stopped after you had ejaculated in her vagina.  You told Madeline to get tissues and clean up, which she did.  You heard a car outside and told her to get out and dispose of the tissues.  She had to unlock the door for her mother.  She described having to behave as if nothing had happened.

Mother at work. 

11Madeline remembered another occasion when her mother was at work and she was at the Keilor East home.  You called into her mother's bedroom and shut the door.  The other children were at home but playing elsewhere.  You got undressed and forced her to touch your penis which is an uncharged act.  You and Madeline were then lying on the bed and you licked her vagina, Charge 8 (indecent act).  You then forced her head down and made her suck your penis, which is Charge 9 (incest).  You then got vaseline from the bathroom and rubbed some on Madeline's vagina and some on your penis.  You then placed your penis in her vagina while she was sitting on top of you, which is Charge 10  (incest). She described you 'humping and stuff.'  When this was occurring, Madeline said she felt scared, uncomfortable and hurt and she was trying to get off.

New Year's Day. 

12Madeline recalled a fourth occasion that sex took place between herself and you was on New Year's Day 2014 at the Keilor East home.  On this day, Ms Corriere was working.  You called Madeline into her mother's bedroom and shut the door.  You took off your clothes and forced her to touch your penis and then you put her on the bed and started licking her vagina, which is Charge 11 (indecent act).

13You were next in a sitting position up against the bed and you moved her on top of you.  You turned her to face you, you placed your penis into her vagina which is Charge 12 (incest).  While this was happening, you touched her breasts which is uncharged and Madeline says you were ‘moving her hips and stuff’.  You ejaculated and told her to get tissues, clean up and have a shower.

Abbey Tranter. 

14Your offending against Abbey of committing an indecent act with a child under 16 is reflected in a course of conduct charge.  You repeatedly went into her room when she was in bed at night after her mother had gone to bed.  You would sit on her bed and touch her around the vagina area.  She said she would wake up and kick you away and pull up the blanket.  She said this happened about six times.  That is Charge 14 (indecent act – course of conduct).

Complaint

15In mid-2015, Madeline sent a text to her cousin, Anthony Cattaneo[10] saying 'Lucas raped me.'  There were other text messages between them over a period of time on this topic.  In May 2016, Ms Corriere received a phone call from the assistant principal of Madeline's school, indicating there were some troubling text messages sent by her.  When her mother collected her from school, Madeline made her complaint that you had inappropriately touched her.  Madeline also told her mother that Abbey had been touched as well.  On questioning, Abbey then made a complaint to her mother.

[10] Pseudonym used

16Ms Corriere rang you and confronted you with the allegations.  You denied them.  The matter was then reported to police.  You were interviewed by police on 16 May 2016 and you denied the allegations.

Charles Paterno.[11] 

[11] Pseudonym used

17Charles Paterno was a friend of yours.  He was also charged with sexual offending against both Madeline and Abbey.  He was a friend who was in the habit of visiting you at Ms Corriere's house.  You and he would have a few beers and watch the football.  He would often stay after Ms Corriere had retired to bed for the night.  He pleaded guilty to one charge of indecent act with a child under 16 against both Madeline and Abbey.  Those offences were committed on a single occasion against the girls in each of their bedrooms.  You were present at the house along with the girls' mother and sisters.

18Mr Paterno made a statement and undertook to give evidence in your trial, however ultimately the prosecution did not call him.  However, in evidence at the trial, the two girls described occasions when you or Mr Paterno would come into their bedroom at night and touch them on the vagina.  They separately detailed that you or Mr Paterno would then leave the room.  They would hear ‘mumbling’ between you both and the other would return to their bedroom and offend against them.  If I was to find that you were aware of Mr Paterno's offending against either or both Abbey or Madeline, that would elevate your moral culpability and aggravate your own offending.

19At trial, both girls were cross-examined about those matters.  They agree they could not say what was said between you and Mr Paterno or whether it was anything to do with them.

20I invited both counsel to provide written submissions on that topic.  Ms Piggott submitted on behalf of the prosecution that I could not find you were aware of the offending of Mr Paterno.  I agree with that position.  Ultimately, I could not be satisfied to the requisite standard that you had any knowledge of Mr Paterno's offending.  To that end, I put his behaviour to one side.

21Turning to my assessment of your offending.  These are very serious offences.  Incest in particular attracts a maximum penalty of 25 years' imprisonment.  It is an offence capable of undermining the very fabric of the community and should be met with condign punishment.  In assessing the objective seriousness of your offending, I am of the view that it is at a higher end of seriousness of offences of incest.  In relation to the indecent act charges against Madeline and Abbey, those acts, in my view, are at the mid to high range of that offending.

22Case comparison is sometimes a distasteful yet necessary task for the sentencing judge.  Necessary because in determining the appropriate sentence and then striving for consistency of sentencing, some assessment must be made of the level of gravity of the actual offending to determine just where a particular case falls on a spectrum.

23Sadly, there are cases of even greater seriousness where the offending lasts for greater duration or where it results in pregnancy or where it is accompanied by actual physical assaults or other acts of degradation or is committed in company of others or is recorded and disseminated.  None of those features are present here.

24However, in my view, your offending is still at a high level of seriousness.  That conclusion results from the following features of your offending. 

Duration. 

25Your offending in relation to Madeline spanned the period 28 June 2011 to 1 January 2014.  That is a period of two and a half years, covering the time from when she was a nine year old until she was approximately 11 and a half.

26In relation to Abbey, you offended against her between 1 January 2013 and 30 June 2014, again a period of approximately 18 months during which she was nine to 11 years old.

Multiple complainants. 

27You offended against two victims during that overlapping time frame.

Repetition and course of conduct. 

28You have been found guilty of a multitude of offences against Madeline and in addition, she described repeated acts which formed the context or background to that offending.  In relation to Abbey, the offence is a course of conduct charge reflecting what she estimated to be approximately six occasions.

Particular vulnerability. 

29These girls were vulnerable by virtue of their young age, their status as children and the associated power imbalance in their relationship with you.  That consideration applies to any sexual offending against children.  However, these children had particular vulnerabilities.  They had a complicated, fractured family history which saw their father leave the family when they were approximately two and three year olds.  He re-partnered with their mother's sister and went on to have children with that sister, their aunt.  It was apparent that there was considerable tension, of which they were aware, between their mother and her sister and their father and also in their own relationships with their father.  He was out of their lives for significant periods of their primary years.  It seems he only returned when Madeline commenced self-harming in later primary years.

30You were aware of those circumstances.  You were also aware that during the period of your relationship with their mother, Madeline had been hospitalised for self-harming and expressed suicidal ideation at various times.

31In addition, their mother was a woman of both strength and fragility.  She gave evidence of periods when she was placed on antidepressants for her own mental health struggles.  She was also dealing with her third daughter, Keira, who had significant health issues and required hospitalisations.  She was working long hours in an effort to provide for her children and was frequently exhausted by her life's circumstances. 

32To repeatedly offend against such vulnerable children in the face of that background is deplorable.

Threats. 

33You used those vulnerabilities to secure their silence, threatening both girls that if they told their mother, their little sister Savannah would suffer as you would be removed from her life.  That must have resonated with them, given their absent father.  They were clearly aware of the toll a relationship breakdown would also take on their mother.  They also clearly loved their younger sister and did not wish to see her unhappy.

34In her VARE, Madeline described being scared to tell her mother.  She said 'I just couldn't find - I didn't know how to say it to her like it was her partner.  I knew she'd be devastated.  And he used to say "If you ever tell Mum, I'm just gonna deny it" and that's exactly what he's doing now.'

Breach of trust. 

35You were in loco parentis to these girls.  The breach of trust is profound.  You breached not only their trust but the trust of their mother who believed you would care for them as her partner alongside her and in her absence.  The courts and community now better understand that such a breach impacts on their capacity for relationships long into their futures.

Impact. 

36The impact on both of these girls and their mother is well outlined in their victim impact statements.  The effect was immediate but is long lasting.  I accept what higher courts have said that rehabilitation of the victim of a sexual offence is complex and may take many years.  The descriptions they give in their victim impact statements reflect the comments of Vincent JA in DPP v Toomey[12], that is 'Childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.  The notion to which I have adverted underpins such concepts as restorative justice, just punishment, the vindication of the rights and attribution of responsibility based on moral culpability.  The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.'

[12]DPP v Toomey [2006] VSCA 90

37Madeline in her victim impact statement described ongoing periods of self-harm.  She said she has dropped out of school and become isolated.  She has severe anxiety, depression and has become suicidal.  She describes feeling hopeless and worthless and stopping things she had previously loved.  She has difficulty sleeping and is restless.  She gets overwhelmed by being outside.  She says 'I am sad all the time and the pain I have inside never leaves.  I'm existing but not living.  Every day has been a constant battle to keep fighting.'

38Indeed, she has struck me as a fighter.  A young girl with great courage and strength to persist with having her story told.  The jury obviously accepted her as a witness of truth and someone upon whom they could rely.

39Abbey described the ongoing effect on her of your offending.  She says she has gone from being ‘the kid who would not miss a day of school and did everything asked willingly and without complaint’ to becoming distant from her family and distant at school.  This has included missing classes and missing days of school because she felt too overwhelmed and anxious to sit in a classroom full of people.  She says simple tasks have become major obstacles.  She says she overthinks things and finds it extremely hard to make decisions.  She has random anxiety attacks and she has self-harmed due to the impact of the stress and pain.  She lacks self-confidence about her body, her relationships within her family have been affected.  The matter of fact way she recounted your offending in her VARE highlighted her young age and the fact it had become a part of her life during that period.

40Their mother also provided a victim impact statement and is indeed the other victim of your offending.  She says the impact has affected the whole family.  She has been unable to go to work because of the need to look after her children who were constantly self-harming, and on other days when she could attend work, she would be distracted by her worry about what she would find when she got home.  She received multiple distressed phone calls from her daughters.  She says 'I felt completely useless watching my whole family self-destruct and knowing I was unable to do anything to help’.

41She too became depressed, suffering paranoia and what she describes as obsessive compulsive disorder. She says she cannot trust anyone.  For her too, she says it forced her to relive her own childhood abuse.  Sadly, like many mothers in her situation, she has been manipulated and deceived by your actions.  She is clearly a committed, dedicated, loving and hardworking mother and woman and to make her doubt her capacity to care for her young girls is a resulting part of your offending behaviour.

Location. 

42Your offending occurred in the home of your victims, specifically in relation to her Abbey, in her bedroom, a place usually special to young girls of that age.  It is a place where both girls were entitled to feel safe.

Nature of offending. 

43The nature and variety of your offending against Madeline is broad.  That is you offended by forcing her to masturbate you to ejaculation, by forcing her to touch your penis and play with it, by touching her vagina, by licking her vagina, by forcing your penis into her mouth and ultimately you penetrated her vagina with your penis and ejaculated.  The offending increased in seriousness as time passed.  Penetrative offences carry a particular gravity.  They must have been extremely confronting for that young girl.  Her descriptions in the VARE make clear she had but limited understanding of the acts you were committing on her.  You used vaseline to penetrate her vagina.  You persisted to the point of ejaculation without any protection by way of a condom.  I agree, that is an aggravating feature of those specific charges given the risks it carries.

Predatory. 

44Given the repetition and nature of offending, these cannot be said to be opportunistic lapses of reason.  This is predatory and sustained abuse. 

45Of less significance but still relevant to my assessment of your offending are the following matters.  There was a considerable age disparity between you, given you were in your mid to late 40s at the time of this offending.  The offending occurred in a background where both girls describe you as having ‘anger issues’ and a temper, of being at least verbally violent towards them and physically aggressive to Madeline.  The offending continued despite the physical protest of both girls.  It only ceased once you moved out of the house.

46General deterrence, denunciation and community protection loom large in the sentencing synthesis for such offending. 

47You have shown no remorse.  From the time you were interviewed, you denied the allegations.  You have run the matter to trial, that is your right and does not aggravate sentence.  However, you do not receive a benefit or discount for any plea of guilty or demonstration of remorse.  Since the verdict, you have not expressed any regret for your offending or any empathy for your victims.

48Similarly, you have not expressed any insight into or understanding of your behaviour, nor the effect it has had. 

49Those matters and the repetition and presence of multiple victims highlights the need for specific deterrence in your case and protection of the community in that sense is also important, although overall, I find your prospects of rehabilitation are reasonable given the matters I am about to come to.

Personal circumstances. 

50Your are 53 years old and you have no prior convictions.  You grew up with your parents in Northcote.  You went to Westgarth Primary School then Northcote Technical College and completed Year 10.  You started worked at approximately age 15 at Biz Buzz Hardware in High Street, Thornbury in a junior position.  Over seven years, you worked your way up to senior salesperson in a managerial role.  At 21, you were asked to manage the Essendon branch of Biz Buzz Hardware and you worked there for five years.  You had a series of senior roles in the hardware industry, including at age 27 to 28, managing Biz Buzz Hardware in Niddrie, at ages 34 to 35, managing Go-Lo and Clark Rubber stores and from age 36 to 52, managing Mitre 10 at both Brighton and Caulfield.

51You report that during your working life, you have had at most two weeks of unemployment from the ages between 15 and 52.  That is an impressive work history, demonstrating your strong work ethic and your capacity for responsibility.  You only ceased work after an incident resulted in your hospitalisation in March 2018.  I will return to this and your resulting physical health issues.

52You have two sons from your first marriage.  They are both working successfully and in relationships with young children.  You have a close relationship with both of them.  They have been aware of the charges and the trial and they continue to support you.  Both have visited you in custody and your son, Nathan, has managed to bring your elderly father to visit you.

53Three to four years ago, your father was diagnosed with Alzheimer's Disease.  After you were released from hospital in 2018, you began living with him and you have been a support for each other.

54In 2019, your uncle, who is your father's twin brother, also moved in with you.  He too appeared to be in the early stages of Alzheimer's having been hospitalised after being found in a dazed and confused state.  I accept that your elderly father's mental state and probably physical state will continue on a downward trajectory given his age.  I have observed him attending court with you.  I accept that this will be a source of worry and concern for you during your period of incarceration.  It will be so generally but also because phone contact is limited.  Trying to assess his health over infrequent and often brief phone calls is going to be difficult.  His capacity to travel to see you in Ballarat or any other prison will be limited and no doubt declining.  It is possible he will not survive to see you released.

55Your uncle is in a similar position and this too will have some though less impact on you.

Medical situation

56Of significance on your plea in relation to your personal circumstances in mitigation is consideration of your medical situation.  I have received the discharge summary from Royal Melbourne Hospital regarding your 2018 admission.  That admission was apparently the result of being pushed off a bridge.  You cannot recall the exact circumstances of that incident. However, you apparently fell some 10 metres into water and were not discovered until a jogger saw you the next morning. 

57You were hypotensive and hypothermic on arrival at hospital.  You suffered multiple serious injuries, in particular around your chest and spine.  Those included a left sided haemopneumothorax, that is a collection of blood between your chest wall and lungs which is most commonly seen after a major chest injury,  a spleen contusion, a compression fracture of your lower spine, multiple bilateral rib fractures, a fracture of your sternum and fluid in your pleural cavities and a fractured left wrist.  Sequalae in hospital included a bacterial infection and respiratory failure.  The haemopneumothorax was evacuated and you underwent lung repair.  You underwent several surgeries for repair of your wrist fracture, open reduction and internal fixation of your broken ribs and sternum as well as two spinal fusions.

58You were at Royal Melbourne Hospital for six weeks before being discharge to Royal Talbot for rehabilitation.  On discharge, you were still suffering the results of those injuries and had a catheter bag.

59I observed you during a trial in August 2018 on these charges which resulted in a hung jury and again during the trial in September 2019.  Even on a cursory view, it is obvious that your mobility is somewhat limited and that your tolerance for siting and standing has been affected by that medical event.

60Your general practitioner, Dr Morales, has provided a report.  He describes your injuries from that fall as ‘severe’.  He says at the time you were incarcerated, you were experiencing left chest neuropathic pain and major thoracolumbar back pain which radiates to your legs.  He says your condition is likely to have a chronic course, given your injuries have been extreme and can only lead to rapid degenerative disease of the spine.

61You are prescribed Targin and Lyrica for pain management.  Unexplainably, on being remanded, your medication was completely stopped for several days.  Dr Morales described the prison doctor as incredulous about that decision.  Fortunately, that doctor made efforts to obtain information from your treating GP.  Soon after, your pain relief was recommenced.  In the interim of course, you not only suffered the pain of your injuries but withdrawal from the opiate based rugs. This situation arose despite the fact you were in possession of all prescriptions upon being remanded. 

62Unfortunately, there was a recent repeat of that scenario when you were transferred from Ararat to the MRC just prior to your plea.  Two days passed before your medication regime was instituted.  Those situations are unacceptable and should not happen for any prisoner.

63In addition to your acute recent medical history, there is a history of bowel cancer in your family with four of your father's brothers diagnosed.  In 2007, you were found to have numerous cancerous polyps in your bowel.  You require regular monitoring of that situation.

64You are now 53 years old.  I accept that your physical health, given those serious injuries will likely decline over the coming years, in particular, the health of your spine according to Dr Morales is likely to rapidly degenerate.  Those matters will make your term of imprisonment more difficult and I take them into account.

65You have no prior convictions and have never been in custody previously.  You have been on remand since the jury verdicts with pre-sentence detention of 85 days' imprisonment.

66Sensibly, your counsel accepted on your behalf that the only appropriate sentence here is one of imprisonment and that any term is likely to be lengthy. 

67Higher courts have many times spoken of the destructive nature of offences of incest or indecent acts against a child by a person in authority over them.  Over 20 years ago in the decision of The Queen v Ware[13] from 1997, His Honour Hedigan JA with whom the rest of the Court agreed, said that original sentences failed to reflect the objective gravity of such serious offending.  His Honour said

'The courts have had occasion more often than they would care to remember particularly in the last decade to consider matters raised by these cases involving both the interests of young persons and societal interests in protecting them by the detection and punishment of this type of crime which strikes at the familial roots of civilised society.'

[13]R v Ware [1997] 1 VR 647

68In 2002, The President of the Court of Appeal, His Honour Winneke P in DPP v G[14] made the following comments:

'The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge.  Parents - and those in loco parentis - who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.'[15]

[14]DPP v G [2002] VSCA 6

[15] Ibid at para [10]

69His Honour Priest JA in the matter of Reid (a Pseudonym) v The Queen[16] analysed authorities from other jurisdictions and our own.  He referred to the fact that since the 1980s, there has been a dawning realisation that the tariff of such offences has not been sufficient.  Sadly, the relentless wave of cases involving offending of this type has continued.  The passage from His Honour Hedigan JA in Ware was referred to in the recent and guideline judgment in the Court of Appeal in DPP v Dalgliesh[17].  There, the Court held that sentences for incest needed to be increased to reflect the serious nature of that offending and to deter others in positions of power and responsibility over children from using them for their own needs. I have had had regard to that authority and to the number of cases which have followed it. 

[16]Reid (a Pseudonym) v The Queen (2014) 42 VR 295 at paras [83] – [107]

[17]DPP vDalgleish (a Pseudonym) [2016] VSCA 148 at para [653]. See also DPP v Dalgleish (a Pseudonym) (2017) 262 CLR 428 and DPP v Dalgleish (a Psuedonym) [2017] VSCA 360

70I have also noted comments made by Priest JA in the decision Harlow (a pseudonym) v The Queen[18] from 2018. 

[18]Harlow (a Pseudonym) v The Queen [2018] VSCA 234

71I am not constrained by those authorities in determining the appropriate figures on sentence and as is well known, each case turns on its own facts both in terms of offending and in terms of the personal circumstances of the offender.  However, consistency in sentencing is desirable.

72When making orders for cumulation, I have been mindful of the fact that a number of the offences occur as part of a single episode of offending.  I have also had regard to the issue of totality.  In setting the non-parole period I have been mindful of your health issues and the fact that there is bound to be deterioration.

73Taking into account the matters I have outlined, including the maximum penalties, I propose to sentence you as follows.

74On Charge 1 of committing an indecent act with a child under 16, you are convicted and sentenced to 18 months' imprisonment.  On Charge 2 of incest, you are convicted and sentenced to five years' imprisonment. 

75From this point on you are now sentenced as a serious sexual offender and I direct that that be noted in the records.  Community protection is paramount and there is a presumption of cumulation, however the prosecution did not urge that I impose a disproportionate sentence.

76On Charge 3 of indecent act with a child under 16, you are convicted and sentenced to three years' imprisonment.  On Charge 4 of incest, you are convicted and sentenced to seven years' imprisonment and this is the base sentence.  On Charge 5, you are convicted and sentence in relation to committing an indecent act with a child under 16 to three years' imprisonment.  On Charge 6 of incest, you are convicted and sentenced to five years' imprisonment.  On Charge 7 of incest, you are convicted and sentenced to seven years' imprisonment.  On Charge 8, of indecent act with a child under 16, you are convicted and sentenced to three years' imprisonment.  On Charge 9 of incest, you are convicted and sentenced to five years' imprisonment.  On Charge 10 of incest, you are convicted and sentenced to seven years' imprisonment.  On Charge 11 of committing an indecent act with a child under 16, you are convicted and sentenced to three years' imprisonment.  On Charge 12 of incest, you are convicted and sentenced to seven years' imprisonment.  On Charge 14 of committing an indecent act with a child under 16, the course of conduct, you are convicted and sentenced to three years' imprisonment.

77I make the following orders in relation to cumulation on the base sentence.  On Charge 1, I direct that three months of that sentence be served cumulatively.  On Charge 2, I direct that five months be served cumulatively.  On Charge 3, I direct that three months be served cumulatively.  On Charge 5, I direct that three months be served cumulatively.  On Charge 6, I direct that five months be served cumulatively.  On Charge 7, I direct that 10 months be served cumulatively.  On Charge 8, I direct that three months be served cumulatively.  On Charge 9, I direct that five months be served cumulatively.  On Charge 10, I direct that 10 months be served cumulatively.  On Charge 11, I direct that three months be served cumulatively.  On Charge 12, I direct that 10 months be served cumulatively.  On Charge 14, I direct that 18 months be served cumulatively.

78The total effective sentence is 13 years and six months' imprisonment and I direct that you serve 10 years before becoming eligible for parole.  I declare that you have already served 85 days' pre-sentence detention.

79I also make orders in relation to Sex Offender Registration Act.  The mandatory registration period is one of life and I will have the paperwork prepared for you to sign. 

80I also make an order under s.464ZF for a forensic sample, that is a cheek scrape and I indicate to you, Mr Fitch, that if you refuse to provide that sample, reasonable force can be used to take that sample from you.

81OFFENDER:  It's not a problem, Your Honour.

82HER HONOUR:  Have a seat.  I will just give counsel a moment.

83So Mr Fitch, you have been provided with that written documentation regarding sex offender registration and I understand that has been explained to you and you have signed to indicate you have received both the information and the explanation, correct?

84OFFENDER:  Correct.

85HER HONOUR:  Thanks very much.  All right, any issues to raise, counsel?

86MS PIGGOTT:  No, Your Honour.

87MS SWINEY:  No, Your Honour.

88HER HONOUR:  All right, thank you very much.  I will have Mr Fitch removed, thank you.

(Prisoner removed.)

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