Director of Public Prosecutions v Freeman (a pseudonym)
[2023] VCC 1015
•15 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARL FREEMAN (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 May 2023 |
| DATE OF SENTENCE: | 15 June 2023 |
| CASE MAY BE CITED AS: | DPP v Freeman (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1015 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of sexual penetration of a child under 16, sexual assault of a child under 16, charge of grooming for sexual conduct of a child under 16, intentionally damaging property and common law assault – leader of a religious sect sexually offended against children of parents who were followers – no prior criminal history – loss of employment as medical practitioner - narcissistic personality traits – genuine remorse – good prospects of rehabilitation – standard sentence offences – sentenced as serious sexual offender – plea of guilty at earliest reasonable opportunity -
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Sims v R [2022] VSCA 114; Victorsen v The Queen [2020] VSCA 248; DPP v Hum [2022] VSCA 57; Worboyes v The Queen [2021] VSCA 169; R v Hall (1994) 76 A Crim R 454
Sentence:Eight years imprisonment with a non-parole period of five years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Mahady | Office of Public Prosecutions |
| For the Accused | Mr D. Dann KC | Doogue & George |
HIS HONOUR:
Introduction
1Jarl Freeman[1], I will sentence you to a total sentence of eight years' imprisonment and set a non-parole period of five years' imprisonment. I will declare your 313 days of pre‑sentence detention as time served under my sentences today.
[1] A Pseudonym.
2You pleaded guilty to five charges of sexual penetration of a child under 16, two charges of sexual assault of a child under 16, a charge of grooming for sexual conduct of a child under 16, two charges of intentionally damaging property and a charge of common law assault.
3The circumstances of your offending appear in the prosecution opening, being Exhibit A. You agree with its contents.
Circumstances
4You were born and raised in Sri Lanka. You qualified and practise as a medical practitioner. In 2006 you and your family migrated to Australia. You practise medicine here. You are also a practising Buddhist. After visiting Sri Lanka and meeting with Buddhists there, you returned to Australia and started preaching. You preached a mixture of Buddhism and Christianity. After a while, you developed a following and formed a sect. You created a set of rules which the members were required to follow. To non-Buddhists, they are unusual. Take two examples. First, when you visited the home of a follower, that person, and his or her family, needed to kneel when you entered the house. Second, your followers gave you money for being 'God'.
5The first complainant is now 14. When your offending with her started she was 12. At the time, she attended secondary school and lived with her mother and other females. You insisted on the separation of males and females.
Charge 1
6During December 2021 the first complainant was at an address in Melton[2]. Other members of your sect were living there. She was helping in painting the house in preparation for its sale. You told the others present of needing to go to a Bunnings store to buy things. You took the first complainant with you. After attending Bunnings and buying her a hot chocolate, you drove to a back road near the Bunnings store.
[2] A pseudonym.
7You told her to move into the back seat, which she did. She lay on your lap. You kissed her everywhere. At your instruction, she removed her shirt and crop top. You then touched, kissed and licked her breasts. These are uncharged acts.
8At your instruction, she removed her lower garments. You kissed her vagina. After some difficulty, and, following your exhortation that she give you her love and with kissing and sucking her breasts, you penetrated her vagina with your penis. You did not ejaculate. Afterwards she told you the penetration had not hurt her even though it had. On the return journey you invented a story for the first complainant to tell to explain the delay. These circumstances constitute Charge 1, a charge of sexual penetration of a child under 16.
Charge 2
9In late December 2021 you collected the first complainant from where she was living. Despite what you told her mother, you took her to a hotel where you had sexual intercourse with her. You also kissed her on her stomach and lips. Although she said she was happy and enjoyed it, she did not and wanted to get away. These circumstances constitute Charge 2, a charge of sexual penetration of a child under 16.
Charge 3
10Between 31 December 2021 and 31 March 2022, you had sexual intercourse with the first complainant three times. The circumstances were the same as those in the hotel. They constitute Charge 3, a rolled-up charge of sexual penetration of a child under 16. This is a rolled-up charge involving three occasions of the offence of sexual penetration of a child under 16.
11Pausing there, rolled-up charge can only be laid with your consent and then only if you are pleading guilty. For you, it has the benefit of facing only one charge rather than, for instance, in the circumstances of Charge 3, where three charges could have been laid instead of one. If three charges had been laid, then you might have received sentences exceeding the maximum penalty of one charge. Dealing with one charge instead of three means that cannot occur. It also makes my task of sentencing you simpler.
Charges 4 and 5
12In March 2022 you asked the first complainant to come with you to your medical clinic. However, you took her in your car to a nearby parking lot. You told her to remove her underwear but leave on her shirt, which she did. You then put your penis into her mouth and instructed her on licking and sucking it.
13You told her to stop and started kissing her mouth and breasts and rubbing her vagina. You then inserted your penis into her vagina and started having sexual intercourse. You withdrew and then masturbated yourself to ejaculation.
14These circumstances constitutes Charges 4 and 5, charges of sexual penetration of a child under 16.
Second complainant
15At the time of your offending, the second complainant was 12. She is the daughter of one of your followers.
Charge 6
16In May 2021 you collected the second complainant from her home, telling her mother you and the complainant were going to Bunnings to collect construction materials. You went to Bunnings and, on your return, you drove into a quiet street. You told her to get into the back seat, which she did. You pressed your lips against her lips for about seven seconds. She pulled away and you drove her back to her home. This is the first occasion of the rolled-up charge of sexual assault, being Charge 6.
17About a week later you took the second complainant to Bunnings and on the return trip you parked your vehicle. You told her to get into the back seat. You then kissed her on the lips, forehead and face. She pulled away, you stopped and drove her home. This is the second occasion of the rolled-up Charge 6.
Charge 7
18Between 1 May 2021 and 1 February 2022 you collected the second complainant and drove her to a motel. You promised her a mobile phone for coming. You started undressing but she began to cry through fear of what would happen. She told you did not like what was happening. After staying 40 minutes, you took her to stores and bought her deodorant and perfume. You also gave her a mobile phone. These circumstances constitute Charge 7, a charge of grooming for sexual conduct of a child under 16.
Charge 8
19In March 2022 you took the second complainant to a motel, having told others you were going to fix a WiFi plan. You booked a room. In the room, you told her to lie on the bed. She did and you kissed her on the face. She tried to protect herself. You kissed and touched her. You kissed her on the forehead. She pushed you away and went to the bathroom. When she returned, you were asleep but woke shortly afterwards. You were angry with her. You took away her phone and would not let her eat the food. You and she returned home. These circumstances constitute Charge 8, a charge of sexual assault of a child under 16.
Charges 9 and 10
20During February 2022 you examined the phone of the second complainant and saw its internet history, including use of YouTube. Earlier, you had given this phone to her. You smashed it on the ground and told her to do the same, which she did. This constitutes Charge 9, a charge of criminal damage.
21You then slapped her across her cheeks a number of times while she knelt before you. She suffered swelling. This constitutes Charge 10, a charge of unlawful assault.
Charge 11
22The third complainant is a boy, the brother of the second complainant. Between 29 June 2021 and 13 April 2022, you saw the third complainant smiling at his phone while using it. You took the phone and smashed it on the floor. You made the third complainant do the same. The phone was damaged beyond repair. These circumstances constitute Charge 11, a charge of criminal damage.
23You were arrested on 5 April 2022. You were interviewed three days later. You remained in custody until granted bail on 4 May 2022. On 1 September 2022, you were re-arrested and your bail was revoked. You were charged with contravening the conditions of your bail. After several committal mention hearings, you were committed for trial on 20 December 2022 following a resolution seven days earlier.
Victim impact statements
First complainant
24On 5 May 2023 the first complainant made an impact statement.
25She is regularly distressed by the memory of what you did to her. Her concentration is affected including in the classroom. She is regularly checked at school and possesses a 'take a break' card if she is upset. She is fearful and uncomfortable around people. It took her a long time to open up to her family and trust her parents.
26She fears for her future because your actions make it hard for her to do things other people would do due to her memory of what you did.
Second complainant
27The second complainant made her impact statement on 8 May 2023. She is now 14. In the first five paragraphs of her statement, she described the regime you created and its affect on her.
28In 2021 you became, as she put it, 'touchy and flirty' with her, which made her very uncomfortable. Although she fought back against you as much as she could:
'I was starting to lose hope and thought I would get raped any day. I was living in constant fear and eventually started losing the will to live. I wanted to hurt everyone around me and kill Jarl with my own two hands'.
29Sadly, you turned the women with whom she lived with against her, and they started to call her names:
'…so I lost all the time and it always ended with me getting hurt and torn apart'.
Victoria Shelby[3]
[3] A pseudonym.
30Victoria Shelby is the mother of the first complainant. She set out the difficulties she experienced through the restrictions you placed on her family and how it affected her well-being. She struggles with accepting what has happened to her daughter and how traumatic the incidents would have been for her daughter.
David Shelby[4]
[4] A pseudonym.
31David Shelby is the father of the first complainant.
32He trusted you when he migrated to Australia with his family for a better life. He placed trust in you and held you to a high standard. He too struggled with the restrictions you placed on him to engage with his family. He missed important events of his daughter's life, such as her primary school graduation. His 'world collapsed' when he learnt of the offending you committed on his daughter. He fears now how your offending will affect her future and her ability to study.
Maria Spence[5]
[5] A pseudonym.
33Maria Spence is the mother of the second complainant.
34She described being involved in your group as a stressful and painful period of her life, affecting her emotionally. Every time she thinks about your offending, she feels depressed and responsible.
Wade Spence[6]
[6] A pseudonym.
35Mr Spence is the father of the second complainant.
36He feels misguided by you and details how you betrayed their trust for your own personal and sexual gratification. It has caused him to question religious faith overall. He is worried for his daughter attending upon a male doctor alone. Your offending has caused mistrust and isolation between his family members, resulting in psychological treatment.
37Your offending has significantly impacted on his children. He fears it will greatly impact on his son's VCE studies. It has stopped his daughter from playing basketball for a period of time, a sport which she excelled at.
38He cannot but feel guilty he could not 'save his family' from you. He regrets joining your cult.
Criminal history
39You have no previous convictions or findings of guilt.
Personal
40You are now 50. You were born and raised in Sri Lanka. You have three older siblings, two sisters and a brother. Your father died when you were four. Your mother lives in Colombo with your brother. Your sisters also live in Sri Lanka.
41Your primary, secondary and tertiary education occurred in Sri Lanka. You successfully completed medicine in 2000 and practised in Sri Lanka. During 2004 and 2005 you worked in English hospitals.
42In 2001 you married. There are two sons of the marriage, born in 2001 and 2003. Both are studying medicine in Melbourne.
43In 2006 you and your family migrated to Australia. You have become an Australian citizen. From then until 2012 you practised as a medical practitioner in Hamilton[7] and Ballarat[8]. Also during that period you obtained further qualifications dealing with skin complaints, including a masters' degree from the University of Queensland.
[7] A pseudonym.
[8] A pseudonym.
44Between 2012 and 2015 you worked in a medical centre in Melbourne. In September 2015 you established your own practice. This came to an end in April 2022 when you notified the Australian Health Practitioner Regulation Agency of the charges against you. AHPRA suspended your ability to practice immediately.
45During 2015 you listened to Buddhist sermons and met with preachers. In 2016 you travelled to Sri Lanka and met with Buddhist monks. In 2017 you started preaching in Melbourne. You were asked by members of your community to preach to them. You started preaching to a family and this expanded to about 10 families. You would preach in their homes.
46In 2021 a property was bought in Euroa[9]. It was intended to start a religious community there with the segregation of males and females.
[9] A pseudonym.
Psychologists
Angela Sorotos
47Angela Sorotos is a clinical and forensic psychologist.[10] Between 2 August 2022 and 23 February 2023 you attended her for treatment for a total of 10 sessions. You attended voluntarily and were proactive in requesting as many sessions as possible to facilitate treatment. During your sessions with her, you discussed your offending, sexual scripts, sexual arousal patterns and relapse prevention.
[10] Report of Dr Angela Lewis, dated 3 April 2023.
48Dr Sorotos suggested several factors likely to have contributed to your offending, including being revered by women and authority figures throughout your childhood and early adulthood, resulting in:[11]
'…a narcissistic personality structure which resulted in him developing a belief that he is extraordinary and exceptional and can only be understood by, or should connect with, other extraordinary figures (in this case God); further, a grandiose logic of self-importance and a fixation with fantasies of control and idyllic love (i.e. the "Lord's" love).'
[11] At [17].
49She outlined how you may have overvalued your religious beliefs, resulting in your desire to 'fix' the victims by showing them love.
50Dr Sorotos identified several problematic sexual scripts you engaged in, including 'sexual happiness is the number one marker of happiness overall' and 'if it was distressing for her, she would have told me'. Through the re-scripting process you were able to demonstrate an increase in awareness as to the inappropriateness of your actions. Dr Sorotos reported this as a positive development.
51Dr Sorotos reported initially, you never considered the effect your actions could have on the victims, their families or your own family. Now you acknowledge certain high-risk situations to avoid and are regretful of your behaviour.
52She believes you have made some treatment gains to date, with your risk level lowering since commencing treatment. But it is not yet complete and further offence-specific treatment is required to continue mitigating the risk of reoffending. She now holds concerns with your placement of locus of control on an external construct (you being guided by the Lord), which, in her opinion, increases your risk of future offending.
Tiffany Lewis
53Tiffany Lewis is a forensic psychologist. At the request of your solicitors she interviewed you on 15 March 2023 and reported.[12]
[12] Report of Dr Tiffany Lewis, dated 11 April 2023.
54Although you admitted your offending to her, you had difficulty in explaining your offending. You provided conflicting accounts of your motivation. On the one hand you strongly denied any sexual attraction to either victim, but on the other you spoke of your sexual attraction to the second complainant. You told her your intentions were for the young women to live a life similar to nuns, worshiping the Lord. Conversely, you explained how you felt you were rewarding the young women, as they were the most devout members of your religious group.
55This was your explanation as to why you chose these complainants: you felt they had 'grasped the message of the Lord'. Your attention and sexual favour to them was a reward for their hard work and devotion. You claim your kissing of the second complainant was out of thanks, not any sexual interest. You attributed blame to the complainants, saying they became too close and dependent on you.
56Dr Lewis said although you do not meet the criteria of a narcissistic personality disorder, there are narcissistic personality traits evident in your behaviour and had appeared from a young age. She said you were displaying these traits at the time of the offending and they would have contributed to the offending behaviour. She said:[13]
'His narcissistic traits help understand his explanation for his offending, that he was attempting to help his victims, though it is clear this is a cognitive distortion. His narcissistic personality traits did not cause the offending but made it easier for him to rationalise and justify his behaviour'.
[13] At [96].
57Dr Lewis said imprisonment is unlikely to have an effect on your symptoms and is unlikely to be more difficult to you than to someone without narcissistic personality traits.
58She considered you displayed limited insight into your offending, most often reporting you had given in to your 'demonised nature' and reported little understanding of how to avoid similar offending in the future. Despite this, you told her you are open to treatment in the future.[14]
[14] At [39].
59Dr Lewis administered five psychometric tests to assess your risk of future sexual violence. She opined:[15]
'Should Dr Freeman develop greater self-awareness, develop insight into factors contributing to his offending, be willing to address his possible sexual preferences in a treatment setting, gain an understanding of the impact of his early life experiences and develop more functional coping strategies, his ability to manage his risk may be improved'.
[15] At [85].
60She recommended moderately intense treatment to address your offending behaviours, which would include engagement in forensic intervention services while in custody and with a private forensic psychologist or psychiatrist skilled in treating sex offences if you are not in custody.
Discussion
61There are five purposes of sentencing. Each applies in your case.
62Your offending towards the first two complainants is condemned. In the eyes of their parents, you enjoyed an elevated position. You were their religious leader. You preached morality and yet behaved with gross immorality. Your behaviour to these complainants was the opposite of what it should have been.
63Part of the reason for condemnation is the profound harm your offending has had and will have on the first two complainants. Their impact statements can only tell of a part of the effect of your offending upon them. The Court of Appeal has stated the effect of such offending on children time and again. The Director's counsel cited a passage from a recent case of Sims v R.[16] It is apt for several reasons including your distorted view of the children consenting:
'…sexual offending against children is now well understood to have the capacity to cause enormous harm to those subjected to it. The legislative scheme means that a child under 16 cannot consent to sexual penetration. This prohibition has the dual purposes of protecting the child from harm that can come from premature sexual activity and deterring adults who would contemplate having sex with someone under the age of 16. This prohibition is founded on the presumption that premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent consent'.
[16] [2022] VSCA 114 at [20].
64Through my sentences, I must deter you from behaving in this fashion again. Although you are remorseful, there is a real need for my sentences to deter you from the same or similar offending. It is the effect of these sentences upon you which lead me to assess your prospects of rehabilitation as I do.
65Allied with deterring you is the protection of the community with you. My sentences should aim to protect the community from you. I must deter others from offending in the same or a similar fashion. The protection of children from such offending is critical.
66As to your rehabilitation, the Director's counsel quoted from five paragraphs of the report of Dr Lewis.[17] On the other hand, there was evidence of cognitive distortion, ranging from your belief in the consent of the complainants to you saying you had given in to your 'demonised nature' and showing little understanding of how to avoid similar offending in the future. Exercising one's will is a way of avoiding giving into your evil side. However, the contradiction in your views does not give great confidence. Judging from the passage I quoted from her report, your rehabilitation is contingent upon successful treatment. Nevertheless, Dr Sorotos was able to trace the successful aspects of her treatment. This is a positive sign.
[17] At [63], [64], [83], [87] and [88].
67The fact of my sentences of imprisonment will surely act as a powerful deterrent against future misbehaviour, irrespective of their ability to set you on the path of rehabilitation. You have never been imprisoned before. The reality of a sentence of imprisonment, especially a heavy one, will act as a deterrent.
68You have lost your ability to practice medicine. This was your career. You were specialising in the complaints of the skin. It appears you have lost the support of your family. I would expect you to receive some treatment while in custody through forensic intervention services.
69Today you have expressed your remorse for your offending. I accept you are genuine in that regard.
70Overall your prospects of rehabilitation are good.
Maximum penalties
71The maximum penalties for the offences to which to which you have pleaded guilty:
(a) sexual penetration of a child under 16 - 15 years' imprisonment;
(b) sexual assault of a child under 16 – 10 years' imprisonment;
(c) grooming for sexual conduct with a child under 16 – 10 years' imprisonment;
(d) criminal damage – 10 years' imprisonment;
(e) common assault – five years' imprisonment.
Standard sentence
72Two of the offences the subject of your charges are standard sentence offences:
(a) sexual penetration of a child under 16 where the standard sentence is six years' imprisonment;
(b) sexual assault of a child under 16, where the standard sentence is four years' imprisonment.
73On 1 February 2018 the standard sentence scheme started. Of the vast number of criminal offences, only a few are standard sentence offences for which standard sentences are prescribed. What is the meaning of a standard sentence?
74First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence and is in the middle of the range of seriousness.[18] The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[19] Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[20]
[18] Section 5A(1)(b).
[19] Section 5A(3).
[20] Section 5B(2)(a).
75In Victorsen v The Queen,[21] the court discussed the standard sentence scheme. At paragraph 18 it said:
'In Brown, this Court said that a judge when sentencing for a "standard sentence offence" must "take the standard sentence into account as one of the factors relevant to sentencing". This requirement:
· is to be treated as a "legislative guidepost", having the same function as the maximum penalty;
· does not affect the established "instinctive synthesis" approach to sentencing;
· does not require or permit "two-stage sentencing"; and
· does not otherwise affect the matters which the court may, or must, take into account in sentencing.'
[21] [2020] VSCA 248.
Serious offender provisions
76Since I am imposing sentences of imprisonment on Charges 1 and 2, on Charges 3 to 8 you are to be sentenced as a 'serious sexual offender'. The effect of this is:
(a) of the purposes of sentencing which I spoke about earlier, I must place the protection of the community from you as the principal purpose. That is, of the five purposes of sentencing, I must place the protection of the community from you at the forefront;
(b) the sentences proposed should be served cumulatively upon each other unless I direct otherwise. In DPP v Hum the court observed:[22]
'The "serious offender" provisions of the Act are intended to have more than a formal effect. Where those provisions apply, the scope for applying the totality principle must be more limited than in other cases. The evident object of the legislation is to make sentences to which it applies operate cumulatively rather than concurrently. That object would be compromised or even defeated if the ordinary application of the totality principle was a sufficient ground to enliven the discretion to otherwise direct. Sentencing judges need to be astute not to undermine the legislative policy of the relevant provisions by applying the totality principle as if s 6E was not on the statute book';
[22] [2022] VSCA 57 at [113(d)].
(c) I may impose a disproportionate sentence but such a measurement is neither sought in your case nor is it warranted.
77Through these measures one can see the Legislature's intention to eliminate this type of offending. In addition to the maximum penalties, it has introduced the concepts of a standard sentence and a serious sexual offender. Generally speaking, each measure is intended to increase the severity of sentences where it applies.
Gravity of the offences
78Against the first two complainants, your offending extends over a period from about May 2021 to March 2022, a lengthy period.
79It must be remembered Charges 3 and 6 are rolled-up charges. Charge 3 contains three occasions of the offence of sexual penetration and Charge 6 two occasions of sexual assault. These occasions are rolled into a single charge.
80Your offending is not an instance of two young persons engaging in such conduct where the difference in age is small. Here you are a middle-aged male and the complainants were very young females.
81You created an artificial living arrangement by separating the males from the females. Whether that rendered the complainants more vulnerable I cannot say. However, you assumed the leadership of your group. You exacted forms of strict obedience. This made your task of the drawing the complainants away from their families easier and obtain compliance with your sexual abuse.
82There are aspects of grooming in your behaviour with the first two complainants and this behaviour is the subject of a specific charge in relation to the second complainant.
Guilty pleas
83Your guilty pleas were made at the earliest reasonable opportunity. In its own right, this is a mitigating factor. However, they do evidence the kind of remorse which points to a determination not to reoffend.
84A guilty plea is a significant benefit to the criminal justice system. It removes cases from the lists of cases requiring a trial, which means in this court a jury trial. A jury trial is a resource and time-consuming process. By pleading guilty you enable those cases which need a jury trial to have one sooner than would otherwise be the case.
85The advent of the pandemic saw the effective abandonment of jury trials for a significant period of time. This resulted in the build-up of the number of cases where a jury trial was required. In this court, many accused persons remained in custody awaiting a trial, some waiting for a very long period, a very long time. During this critical time, our Court of Appeal in Worboyes v The Queen[23] and other cases intervened. Your counsel relies upon paragraph 39 of what the court said in that case. Previously I have quoted the equally emphatic paragraph 35. Paragraph 39 says:
'For these reasons, we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'.
[23] [2021] VSCA 169.
86Although the effects of the virus from the perspective of the criminal justice system is fading, some of those effects are still felt. Although the sense of crisis is lessening, there remains value in the sentiments expressed in that paragraph.
87Another advantage of your guilty pleas is avoiding the need for witnesses to give evidence. In a case like this giving evidence can be very difficult for some witnesses. I have particularly in mind the first two complainants. As was said in R v Hall:[24]
'In this case, the victims have already suffered almost overwhelming trauma. To be called upon to relive the trauma in the witness box would in itself be at the least highly distressing'.
[24] (1994) 76 A Crim R 454 at 469 and cited in R v Donnelly [1998] 1 VR 645.
88Those remarks apply here.
Good character
89For the many years until you started offending in 2021 you had been of good character. Normally such good character is a factor which lessens the sentences. The Director's counsel referred to s5AA of the Sentencing Act. Sub-section (1) provides:
'(1) Despite s5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence'.
90Plainly your previous good character assisted your offending against the first two complainants. You were the religious leader to the families of the first two complainants. Religions are systems of morality. As the leader, you epitomised the morality of your religious beliefs. It explains why the complainants' parents allowed you to take their daughters away. The Director's counsel submits your good character can be used for other purposes, including assessing your prospects of rehabilitation and the risk of your reoffending. This may be so generally, but it has no relevance here. Your prospects of rehabilitation have been assessed on other grounds.
91I am conscious of the need to avoid double punishment. Legislatively, I must disregard your previous good character. The reason is tied up with your breach of trust which existed between you, as the leader of the religious group, and the parents and children of the group. But, in so relying, I must avoid overusing the aggravating features of the breach of trust to avoid the prospect of double punishment.
92You have destroyed or damaged much through your offending. Apart from the impact upon the complainants and their families, you have lost your career as a medical practitioner. You spent years studying and then practising. You have built up expertise. This is now lost. You have alienated your immediate family. You do not expect support from them following your release from custody. I do not know the reaction of your mother and siblings in Sri Lanka. You did tell Dr Lewis of your strong relationship with your mother. You were a religious leader. This is lost. You realise it is lost, telling Dr Sorotos you are no longer a leader but a follower of the Anglican faith. You were esteemed as a leader, which is now also lost.
93When you are ultimately released from custody, you face the daunting task of rebuilding your life.
94Your time in custody has been circumscribed by the continuing restrictions of the virus. Although at a lower level than at the height of the pandemic, they still remain and render your time in custody, past, present and foreseeable future more difficult than would be the case in normal circumstances.
95You do not rely on any of the principles stated in Verdins v The Queen.[25]
[25] [2007] 16 VR 269.
Current sentencing practices
96As to current sentencing practices, the Director's counsel drew my attention to sentencing appeals in the Court of Appeal and your counsel drew my attention similarly.
Section 5B(5) statement
97Section 5B(5) of the Sentencing Act requires, as part of my reasons under sub-s(4), I must refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.
98My sentences for the standard sentence offences in this case are less than the standard sentence in each instance. They are less because of the combination of factors including the timing and effect of your guilty pleas, your prospects of rehabilitation and the effect of your offending upon the complainants and their families and upon yourself through your career and the alienation of your immediate family.
Sentence
99On Charge 1, a charge of sexual penetration of a child under 16, I will sentence you to three years' imprisonment.
100On Charge 2, a charge of sexual penetration of a child under 16, I will sentence you to three years' imprisonment.
101On Charge 3, a rolled-up charge of sexual penetration of a child under 16, I sentence you to four years' imprisonment.
102On Charge 4, a charge of sexual penetration of a child under 16, I will sentence you to three and a half years' imprisonment.
103On Charge 5, a charge of sexual penetration of a child under 16, I will sentence you to three and a half years' imprisonment.
104On Charge 6, a rolled-up charge of sexual assault, I sentence you to 18 months' imprisonment.
105On Charge 7, a charge of grooming, I sentence you to one year's imprisonment.
106On Charge 8, a charge of sexual assault, I sentence you to one year's imprisonment.
107On Charge 9, a charge of criminal damage, you are convicted and discharged.
108On Charge 10, a charge of assault, I sentence you to 14 days' imprisonment.
109On Charge 11, a charge of criminal damage, you are convicted and discharged.
110The base sentence is the sentence on Charge 3. Nine months of the sentences on each of Charges 1, 2, 4 and 5 and four months of each of the sentences on Charges 6, 7 and 8 are to be served cumulatively upon themselves and upon the base sentence. The remaining sentence of imprisonment will be served concurrently with the other sentences. The total effective sentence is eight years' imprisonment. I will set a non-parole period of five years' imprisonment.
111You have been in custody over these charges for 313 days (excluding today). I declare those 313 days as time served under my sentences today.
112I have convicted and discharged you on the charges of criminal damage. Fining you for those offences would serve no useful purpose in light of the sentences of imprisonment I have imposed.
Section 6AAA
113If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you to a total sentence of 12 years' imprisonment.
Sex Offenders Registration Act
114The charges of sexual penetration of a child under 16 is a class 1 offence for the purposes of the Sex Offenders Registration Act 2004. The charges of sexual assault of a child under 16 are class 2 offences. As a result of my findings, you are a registrable offender and you must obey the reporting requirements of that Act for the rest of your life.
Forfeiture
115I will make the forfeiture order in the terms of the draft order.
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