Director of Public Prosecutions v Foley (a pseudonym)
[2018] VCC 607
•30 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONATHAN FOLEY [a pseudonym][1] |
[1] This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the accused, victim and family or witnesses
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2018 | |
DATE OF SENTENCE: | 30 April 2018 | |
CASE MAY BE CITED AS: | DPP v Foley (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 607 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited: R v Khem (2008) 186 A Crim R 465
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Pillai | Office of Public Prosecutions |
| For the Accused | Mr D. Cronin | Papa Hughes Lawyers |
HER HONOUR:
1 Jonathan Foley,[2] you have pleaded guilty to one charge of sexual penetration of a child under 16. The maximum penalty applicable to that offence is 15 years’ imprisonment.
[2] Jonathan Foley is a pseudonym
2 This crime arises from events which took place between yourself and the complainant, Grace Holmes[3]. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor.
[3] Grace Holmes is a pseudonym
3 I proceed to sentence you on the basis of the facts summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that in my opinion the facts in this case are most serious and disturbing and your behaviour, as you are well aware, was totally unacceptable.
4 I turn to a brief summary of your offending.
5 At the time of this offending you were between 39 and 43 years of age. You had previously been in a relationship with Grace’s mother, Amanda Sims[4]. You had two sons together born in 1997 and 1999. When that relationship ended, their mother had primary custody of your two sons.
[4] Amanda Sims is a pseudonym
6 Sims then began a relationship with Keith Holmes[5] and Grace was born of that relationship. Sims had primary custody of Grace at the time of your offending.
[5] Keith Holmes is a pseudonym
7 Sims then had a relationship with Steven Reilly[6]. Reilly and Sims lived together with Sims’ three children. Sims gave birth to Reilly’s daughter in 2009. The complainant in this matter, Grace, was 8 years older than her sister.
[6] Steven Reilly is a pseudonym
8 Grace regarded you as her ‘uncle’.
9 You became a close friend of Reilly and Sims, she of course the mother of your two sons. When Grace was approximately 6 years of age, Sims and Reilly offered you a place to live. They thought you could assist in looking after the children. You were ‘boarding a room’ at that house.
10 You took care of Grace when you lived there, including making her lunch, making her bed, getting her ready for bath or bedtime.
11 Also, Sims and Reilly went out together weekly and left the children in your care. They would also occasionally have a weekend away and leave the children with you. Sims also left you with the children when she went shopping or to visit someone.
12 I turn to Charge 1, sexual penetration of a child under the age of 16, which involves two incidents of sexual penetration. This charge is a representative charge.
13 At the time of your offending, Grace was between 12 and 15 years of age and lived with her mother and stepfather at Melton.
14 Grace, in her VARE, stated that you tried to get her to use vibrators but she did not want to. You also asked her to bring girlfriends home from school with her so that they could have a threesome but she refused.
15 You told her that you wanted her to wear G-strings and you had a G-string for her. You also wore G-strings yourself, once or twice. You wanted Grace to wear them all the time but she would not.
16 You asked Grace to perform oral sex on you. She refused. She said you got angry with her when she refused.
17 Grace stated the first time you had sex with her she was in primary school. She detailed an incident when she went into your bedroom to get something before her mother returned home. You walked into the room, pushed her onto the bed and told her to get undressed. You then had sex with her (penile/vaginal). Grace said in her VARE she told you to get off her because her younger sister was coming. You then got off her. This is the first incident of sexual penetration to which Charge 1 refers.
18 She detailed occasions when you would approach her and touch her all over her body, also hug her. She would push you away but that made you angry.
19 She detailed a second incident of (penile/vaginal) penetration. She went into your room thinking you were asleep but discovered you were not. You pulled her onto your bed, touched her and had sex with her.
20 On 3 November 2015, Grace ran away from home and the Department of Health and Human Services became involved. She then moved in to live with a friend of her biological father.
21 On 22 June 2017, you were arrested at your home address, taken to the police station and interviewed.
22 On that same date, after your arrest, you left that house. As Sims and Reilly were packing up your belongings in your bedroom they located a suitcase under your bed. Sims opened the suitcase and recognised clothing that belonged to Grace, a pink top, a blue Australia flag dress, grey bra and red singlet.
23 Reilly also located a green toiletries bag in the top of the wardrobe and when Sims opened it she located a number of DVDs, a black bra and condoms. A white G-string and a home-made G-string were also located inside the toiletries bag.
24 Photographs were taken of the items in those two bags on 29 June 2017.
25 When interviewed by police, you made admissions to sexually penetrating Grace on one occasion, however, denied partaking in any sexual acts with her on any other occasion. Amongst your answers you acknowledged you were regarded as her ‘uncle’. You said you just got close as "uncles do" and that was about it. You said this started off as holding hands and hugging and kissing occasionally on the cheek, and "that was about it". You stated you did "do" sexual penetration once and from then you told her “no more”. You told police you told Grace they would have to stop. You could not remember what she said when you told her that, although said she was probably acting like her normal self, mucking around, colouring in, drawing, playing games, Lego, watching TV.
26 You described your sexual penetration of Grace as "one-off" and that you had not done anything at or after that date.
27 You said you should have known better, to step away and that you told her “because of our age difference and everything else, so you sort of stepped away a little bit more …”
28 You could not recall what month, day or year the single sexual penetration you said had occurred. You thought at the time Grace was 16. You said you ejaculated in the toilet and not inside her.
29 You told police it started off with hugging, kissing and holding hands for a day or so prior to the sexual penetration that you said occurred on one occasion “if that”.
30 You told Grace that you “wouldn’t mind trying it with your penis in her mouth”. You said this was, “Probably a couple of months after the first time we done it, we had sex”. You said she was watching TV or something and you were doing the dishes when you made the request for oral sex and said it was just a "one-off" joke. You told police Grace had said “No” or "something like that" in response, and that she was probably 16 or 17 when that happened.
31 You denied telling her to suck your penis after you had sex.
32 In relation to Grace’s age, you said you thought she was 16 at the time you had sex with her. You later confirmed she was born in 2001 and then she was 15 at the time. When it was suggested by police in the interview that she was 13 or 14 at the time you had sex with her, you said, “Possibly”.
33 There are a number of aggravating features of your offending. The gross breach of trust, not only of Grace who regarded you as her ‘uncle’, but also of Sims and Reilly who trusted you with Grace and their children. They had invited you into their home and on occasions you looked after their daughter for them. Further, you did not use a condom at the time of your penetration of Grace’s vagina (see R v Khem[7]). A further aggravating feature of your offending is the age difference between yourself and Grace.
[7] (2008) 186 A Crim R 465
34 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses, in particular Grace, have been spared the need to give evidence upon your trial. I note there was not a contested committal and that Grace has not been cross-examined. Further, I take into account in your favour that following being charged in June 2017, those representing you have been involved in discussions with the prosecution in an attempt to resolve your offending to a suitable indictment.
35 In the circumstances I am prepared to accept your plea of guilty indicates some remorse for your offending.
36 The victim of your offending has suffered considerably as a result of it, and I shall return to this later in these sentencing remarks.
37 The charge to which you have pleaded guilty is a representative charge and in that regard the principles in SBLv R[8] apply. SBL has been considered with approval in more recent authorities including Brown v the Queen[9], DPP v EB[10] and DPP v HPW[11].
[8] (1999) 1 VR 706
[9] [2015] VSCA 274 [72]-[79]
[10] (2008) 186 A Crim R [314], [318]
[11] (2011) VSCA 85 [24]-[26]
38 You do not have any prior court appearances nor is there anything subsequent or pending alleged. You therefore come to the Court as a person of previous good character. I am aware of that and such is relevant in mitigation of sentence.
39 Your counsel, Mr Cronin, prepared a helpful written outline of submissions for your plea hearing and addressed them during the course of it.
40 I discussed with him the aggravating features of your offending, specifically the breach of trust, not only of Grace but also breach of trust of her parents. Further, that you did not on either occasion of the sexual penetration of her vagina with your penis wear a condom (see Khem). Further, the age difference between yourself and the complainant, as acknowledged by you in your record of interview with police, to which I shall shortly refer. I did not understand Mr Cronin to submit these were not aggravating features, however he did address me on your failure to wear a condom.
41 By virtue of your plea of guilty to the charge before me, which is a Schedule 1 Class 1 offence, it is mandatory you report pursuant to the Sex Offenders Registration Act 2004. Mr Cronin conceded such classification and duration applied to you.
42 At the outset of the plea hearing on your behalf, Mr Cronin conceded your offending was serious, and in my opinion that was an appropriate concession, as was his ultimate sentencing submission that imprisonment would be the only sentencing disposition for your offending. I shall return to his sentencing submissions in more detail towards the end of these sentencing remarks.
43 Mr Cronin commenced his plea with your instructions to apologise for the devastation you have caused Grace as a result of your offending.
44 Mr Cronin, not surprisingly, relied heavily upon your plea of guilty to this offending and the time at which it was entered.
45
He acknowledged that in relation to your offers to resolve this matter to a suitable indictment, you initially indicated a willingness to plead guilty to one instance of sexual penetration. That offer was rejected on 11 November 2017. The matter then proceeded to the County Court and on 30 January 2018 you indicated your intention to plead guilty to this charge and were arraigned on
8 February 2018 with a plea date listed for 18 April 2018.
46 I accept your plea of guilty was entered at the earliest opportunity and that those representing you had been involved in attempting to settle your offending to a suitable indictment, at least from 2 November 2017.
47 I also accept in your police interview on 22 June 2017 you made some admissions, in particular to a single occasion of sexual penetration of Grace. I discussed with Mr Cronin a number of concerning responses by you in your record of interview. You acknowledged one incident of sexual penetration, as I discussed with Mr Cronin. For a significant part of that interview you appeared to blame the complainant as being complicit in your offending, a position you eventually, and sensibly, did not maintain. You were the adult, it was your responsibility to desist from this offending.
48 As I have said, I accept your plea of guilty and the timing of it indicates some remorse by you for your offending, although I am concerned about your minimisation of it. I accept you also admitted your offending in relation to one instance of sexual penetration when confronted by Reilly.
49 Mr Cronin submitted your plea of guilty and admission of your offending to police was also relevant when assessing your rehabilitation prospects.
50 Turning to rehabilitation, I also discussed with Mr Cronin the lack of any expert report assessing your risk of sexual re-offending. You have not, since this sexual offending, sought counselling for it. In particular not sought counselling after you admitted one occasion in your record of interview.
51 Mr Cronin conceded you had sought counselling since your plea of guilty was entered in February of this year, although not specially relating to your sexual offending. Your lack of participation in any sex offender programs or counselling to address your offending concerns me when assessing your risk of sexually re-offending.
52 I can of course not speculate about your risk, although I am not being assisted by any report which addresses your risk of re-offending.
53 I can only assume, however, that if you did undertake appropriate counselling, not just by attending but by appropriately participating in it, your level of risk, whatever that may be, would be reduced. I can only encourage you when in custody to participate in, and seek out courses that would enable you to address your offending behaviour to reduce your risk of sexually re-offending.
54 Mr Cronin was not specifically relying upon the principles in R v Verdins & Ors[12] and that was an appropriate concession based on the material before me, or more accurately, the lack of material.
[12] (2007) 16 VR 269
55 Mr Cronin provided details of your personal history and circumstances. You were born in Sydney and moved to Melbourne when you were 15. Your father was in the army and the family moved around every few years as a result. You have one sister who lives in New South Wales and have limited contact with her, usually around ‘special occasions’.
56 Your mother lives in New South Wales and you have limited contact with her, I am told your father in Townsville. You have not had any contact with him for a number of years.
57 You described one significant relationship in the past, with Amanda Sims, the mother of Grace, and there are two boys of that relationship. The relationship ended when your two children were 2 and 1 year of age. The boys lived with their mother and would spend time with you each fortnight when they were younger.
58 You remained friends with Sims and moved in, as I have said, with she and her partner at a time when you had nowhere else to live.
59 Following being charged with this offence by police, you have not had any further contact with Sims. The depositions refer to you leaving that property. You were at the time of your sentence living with one of your sons.
60 You attended primary school in New South Wales. When your parents separated you moved with your mother to Melbourne and attended High School from Years 7 to 11 inclusive. After Year 11 you obtained work as a storeman in the army for a year, then worked in various jobs including bar work, labouring and recently as a forklift driver.
61 You lost your job as forklift driver when you were charged with these offences and have not worked since. Mr Cronin submitted the past nine months represented the longest period of time you had been unemployed. You were keen to pursue work once this criminal matter had been dealt with, and when you return to the community.
62 Specifically referring to a number of matters addressed by Mr Cronin at your plea, I have referred to your plea of guilty relied heavily upon by him, also your lack of relevant criminal history.
63 Mr Cronin submitted, regarding your offending, there was a lack of violence/force alleged in relation to the offending before me. That submission, however, must be viewed against the decision in DPP v Dalgleish[13], in particular paragraphs 45-46 which I discussed with Mr Cronin.
[13] [2016] VSCA 148
64 Mr Cronin also submitted, regarding your offending, that at the time of the first penetration, you stopped when Grace told you to. While that might be so, unfortunately that did not deter you from offending on a subsequent occasion.
65 Mr Cronin, relying upon the statement of Sims, also submitted you had earlier acted protectively towards Grace regarding an incident involving she and one of your sons. I discussed that with Mr Cronin as being somewhat of a ‘double edged sword’. That is, it is possible your assisting Grace likely further developed her level of trust in you, which may have made it easier for you to commit this offence.
66 Mr Cronin referred to admissions in your record of interview to some inappropriate behaviour, specifically hugging and kissing Grace, one occasion of sexual penetration, and of asking her for oral sex. You did, however, as I discussed with Mr Cronin minimise your involvement and, in my opinion, attempted to shift some of the blame for your offending against her (see particular answers to Questions 49 and 204).
67 Mr Cronin submitted you displayed some insight into the wrongfulness of your actions when ultimately, following questioning by police (Question 224 and following), acknowledged you should have known better and that it was in essence "not up to Grace". Prior to that answer or those answers there had been a level of ‘victim blaming’ by you. As I discussed with your counsel, you were the adult, it was your responsibility to do the right thing and not to sexually abuse Grace. The courts have often referred to children being immature and vulnerable in particular those who are parents or in ‘locus parentis’ (DPP v G[14]).
[14] (2002 VSCA 6
68 Whilst Mr Cronin conceded your failure to wear a condom on both occasions, Mr Cronin minimised in my opinion the potential adverse impact of that by stating that at least on the second occasion, you did not ejaculate inside her, rather in the toilet. That in my opinion does not eliminate the concerns raised in Khem regarding not only pregnancy but also disease referred to by Neave JA (para 20).
69 Mr Cronin referred to a number of features found in other cases absent in your offending, specifically your plea of guilty, lack of threats and violence towards Grace, that you did not provide drugs or alcohol to the victim. But as I discussed with Mr Cronin, violence/force/drugs/alcohol were not required for Grace to comply with your sexual demands.
70 Mr Cronin submitted there was a lack of any demeaning of the victim such as by recording the acts or by offending in the presence of others, and I accept that that is so.
71 Whilst Mr Cronin conceded your offending was serious and that imprisonment was the only appropriate disposition for it, he submitted that a lengthy period of parole would allow you to undertake sex offender behaviour programs and counselling. I also discussed with him the opportunity you would have to undertake such courses in custody and when ultimately released into the community, either mandated or of your own volition.
72 Ms Pillai, who appeared on behalf of the prosecution, provided a written outline of submissions relevant to sentence, which I discussed with her. The prosecution submission was that an immediate term of imprisonment was the only appropriate disposition in your case.
73 Ms Pillai referred to the breach of trust in your offending. That Grace referred to you as her ‘uncle’ and you lived at her house with her family, and you assisted in their care. You also looked after Grace and the other siblings when Grace’s parents were away on holidays or if they were out.
74 Ms Pillai appropriately conceded your absence of prior convictions was a relevant sentencing consideration. I am aware of that and such is the case.
75 Ms Pillai referred to your record of interview with police. Whilst you acknowledged sexual penetration on one occasion, you did not disclose that second incident and specifically denied another incident. You also admitted, as I note, you kissed Grace and asked her to have oral sex with you, relied upon by the prosecution as evidence relating to context surrounding the offending in Charge 1. I note no actual oral penetration is alleged.
76 Ms Pillai acknowledged your plea of guilty had utilitarian benefit and had saved Grace in particular from being cross-examined. That is so.
77 Ms Pillai also referred to other aggravating features of your offending. The difference in your respective ages. Also not using a condom.
78 Ms Pillai referred to the importance of general deterrence when sentencing for sexual offending against children. That sentences for offences against children must recognise the damage caused to the complainant and have a deterrent element.
79 In my opinion, there can be no doubt that general deterrence is an important sentencing consideration when sentencing for sexual offences involving children. I did not understand Mr Cronin to disagree with that sentencing principle.
80 Ms Pillai referred to DPP v DJK[15] referrable to the adverse impact upon victims of sexual offending. In DJK, that offending also involved two charges of sexual penetration which the court categorised in that case as “gravely serious”. His Honour Vincent J in that decision referred to the need to deter others who may be so inclined from engaging in such activity.
[15] [2003] VSCA 109 [26]
81 The courts have a special duty to protect children. Children are vulnerable and especially vulnerable to the abuse of trust. They are immature in their understanding of right or wrong and are dependent upon adults responsible for their care not to abuse that immaturity.
82 You were, as you acknowledged in your record of interview, regarded as Grace’s uncle.
83 I also note the decision of Dalgliesh, which referred not only to charges of incest (this is not that charge) but also the seriousness generally of sexual offending against children. The court in Dalgleish referred to the community’s abhorrence of sexual offending and crimes against children.
84 This is not a new statement. Crockett J in 1992 in R v Wayland[16] (unreported) stated:
“The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect to both specific and general deterrence.”
[16] 14/9/1992 CA Victoria
85 Similar statements have been echoed in R v Esposito[17] (unreported) in which the court stated:
“A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest [I note this is not an offence of incest] is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.”
[17] 8/6/1993 CA Victoria
86 I again repeat I am aware this is not an incest case.
87 In R v WEF[18], Winneke P stated:
“This court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for, but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.” See those authorities referred to, paragraph 82 of Dalgliesh.
[18] [1998] 2 VR 385
88 In DPP v VH[19], Callaway JA, with whom Buchanan and Eames JJA agreed said:
“The sexual abuse of children by persons in a position of trust is intolerable.” See also paragraph 84, Dalgliesh.
[19] (2004) 10 VR 234
89 And citing Ryan v R[20], Kirby J said:
“Courts must uphold the law which treats sexual offences against children and young persons as extremely serious crimes, particularly where, as is often the case, such offences involve breach of trust and responsibility on the part of those who had such young persons in their care.” See paragraph 43, also Dalgliesh.
[20] (2001) 206 CLR 267
90 The offending itself and violence was also discussed recently in Dalgliesh:
“Moreover, as this court explained in Clarkson v R, the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.” See paragraph 47, Dalgleish.
and further:
“Offences of this type are, as we have seen, are inherently violent and do long-term harm to the victim. It appears, however, that rape offences have tended to attract higher sentences than offences of incest or sexual penetration of a minor. Decisions on rape sentences typically focus on the overt violence, injuries and use of weapons, which such offending commonly involves. It seems likely that the pattern of lower sentences for incest and sexual penetration of a child is to be explained by the absence of such overt features. As a result, the physical subordination of the victim in such cases is wrongly minimised or ignored.” See paragraph 85, Dalgleish.
91 There can therefore be no doubt sexual offending against children, particularly involving breaches of trust by persons in positions of trust, are significant and serious offences indeed.
92 Whilst not specifically referred to by either counsel, I state I am aware and have also read DPP v Dalgleish[21] (following the decision of the High Court). Also see for further assistance the decision of Carter v the Queen[22], a very recent decision which also refers to a different type of offending, but principles in relation to child sexual offending.
[21] [2017] VSCA 360 para 62
[22] [2018] VSCA 88
93 Turning to specific deterrence, Ms Pillai submitted that there was a need for specific deterrence when sentencing you given your other sexual behaviour towards Grace relied upon by the prosecution as context evidence. Ms Pillai referred to your attempt to have Grace use vibrators and asking her to bring girlfriends home from school to have a ‘threesome’ as concerning. Further, that you asked her to wear G-strings that you gave her and had asked her to perform oral sex on you (I note she refused and no such act occurred.
94 Regarding the risk of you sexually re-offending, Ms Pillai referred to the lack of any current assessment before the Court.
95 Ms Pillai also submitted there was the need for specific deterrence, as your offending was not one isolated incident, rather two instances and in the ‘context’ to which she had previously referred.
96 Ms Pillai submitted that there needed to be denunciation of your offending.
97 Turning to s37B Crimes Act 1958, Ms Pillai referred to that when sentencing for sexual offending against children under the age of 16. Specifically in s37B and s37A(b) Crimes Act 1958, the court is required to have regard to a number of factors in cases that involve allegations of sexual offending against children under 16.
98 Ms Pillai also referred to the significant adverse effect your offending had had, not only upon Grace, but also her mother and stepfather.
99 There were three Victim Impact Statements before me. Each are eloquent and it is difficult to do justice to them in these brief sentencing remarks. I have, however, read each statement.
100 There was a statement from Grace (Exhibit 2). In her statement she described feeling scared, angry and wanting to run away from it all as a result of your offending. That when your offending was happening she could not do anything ‘normal’. She could not go to school and was always scared. She felt dirty, hurt and isolated. She described also being emotionally hurt by your offending. She was now living with foster carers who cared for her and was attending school daily and ‘feeling okay’. In the future she wanted to live a happy life, to feel safe, finish school and hoped to see her younger sister. She was living with people with whom she now felt comfortable, happy and could finally sleep at night without being hurt.
101 There was a Victim Impact Statement by Amanda Sims, Grace’s mother. She described having tried to move on with her life but found that very difficult. She no longer trusted anyone to ask for help. Your offending had put a strain on all the relationships she has had. She was very protective of her other daughter. She felt anger towards you. Since this offending ‘came to light’, her pre-existing anxiety had worsened. She now sees a psychologist to help her to move on from what had happened.
102 There was also a Victim Impact Statement from Steven Reilly, Grace’s stepfather. He described when finding out about your offending being very angry and ‘mixed up’. He could not understand why you would commit this offending given they had provided you with a roof over your head and had got you a job. They trusted you with their children and your breach of that made it harder for them to trust anybody. He was overprotective with his own daughter. At the time Grace ran away from home, he did not understand why she did not want to be at their house. She would not talk to him about your offending. For the first few weeks after finding out about your offending, he had trouble sleeping and going to work. He was still angry and annoyed by your offending. He will never have anyone else live at his home with his daughter again.
103 In addressing victim impact statements, the courts have referred to the importance of social rehabilitation.
104 A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[23], in which his Honour Vincent J referred to social rehabilitation citing DJK (and of course I allow for factual differences in that case to yours) His Honour said:
“With respect to those (victim) statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from those persons who have sustained loss and damage by reason of the commission of an offence.”
[23] [2006] VSCA 90
105 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am of course conscious however that I must not allow the effects upon a victim to swamp the sentencing process.
106 Regarding your rehabilitation prospects, I have concerns, in particular given the lack of assessment regarding your likelihood of your risk of further re-offending, the lack of any counselling to date for your sexual offending, and the minimising of your offending, albeit I note some admissions by you in your record of interview. I am aware you have a good work history and that you will likely be able to find employment upon release, which will further assist your rehabilitation prospects. I am also aware, as I have said, you do not have any prior criminal history or anything subsequent or pending.
107 As well as matters personal to you to which I have referred including your prospects of rehabilitation, I must also take into account matters such as deterrence which is, as I have said, of considerable importance in a case such as this.
108 Whilst I accept you do not have any prior court appearances or subsequent for that matter, there is an element of specific deterrence required when sentencing you, given the context in which your offending occurred and that it occurred on two occasions, not one.
109 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. This does concern me in particular for a substantial part of the interview you were in essence suggesting that Grace was complicit in this offending. In addition, the lack of any risk assessment in relation to future sexual offending. Obviously any concerns I have about the need to protect members of the community from you will ultimately be decreased by any appropriate participation in sex offender programs or offending behaviour programs, either in custody and/or when in the community.
110 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. In my opinion the only appropriate disposition is that of an immediate term of imprisonment with a head sentence and non-parole period.
111 I sentence you as follows.
112 On Charge 1, you are convicted and sentenced to 6 years’ imprisonment and I direct that you serve a period of 4 years before you are eligible for parole.
113 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to this charge and had been found guilty of it, I would have sentenced you to a term of imprisonment of 8 years with a non-parole period of 6 years. That does not apply, that is if you pleaded not guilty to it and been found guilty of it.
114 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 12 days in custody up to and including yesterday, which was 29 April 2018, by way of pre‑sentence detention, and I direct that that be entered into the records of the Court.
115 As I have previously stated, given your plea of guilty to the charge before me, pursuant to the Sex Offenders Registration Act 2004 you are required to be subject to that register for a period of 15 years, the making of that order is mandatory. Your counsel conceded, as I said, such classification and duration applied to you.
116 Ms Jackson in a moment will come back to you with some documents to sign about the Registration Act. I have made the order, you are not being asked if you want to be on the order. I have made the order, all you are being asked to do is sign for the paperwork that tells you about the order. But if you do not want to do it, it does not matter, she has to ask you anyway.
117 The prosecution also made application for disposal of a number of items contained within a Disposal Order. That was not opposed by counsel on your behalf and I make the order in the terms sought.
118 For completeness only, I state a forensic sample was not sought by the prosecution.
119 Any other orders?
120 MS PILLAI: No.
121 HER HONOUR: PSD right?
122 MS PILLAI: Correct.
123 HER HONOUR: I direct that that be entered into the records of the Court. Twelve days up to and including yesterday, which was 29 April. All right, Ms Jackson is going to come down the back now just to give you some documents to do with the Sex Offenders Registration Act, you are just being asked to - as I said, if you do not want to sign it, it is up to you, but she has to ask, it is her job.
124 You can go back with him if you want to. These are just the Sex Offender Registration - I have already made the order.
125 All right, everything under control? Everything sorted?
126 MS BYRT: Yes.
127 HER HONOUR: Thanks Mr Foley, you need to leave now, thank you very much.
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