Director of Public Prosecutions v Frost (a pseudonym)
[2025] VCC 1099
•1 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALBERT FROST (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE BRECKWEG | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2025 | |
DATE OF SENTENCE: | 1 August 2025 | |
CASE MAY BE CITED AS: | DPP v Frost (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1099 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Indecent Assault on a male; Indecent Assault; Historic offending; Elderly Offender; multiple victims.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins [2007] VSCA 62; 16 VR 269; 171 A Crim R 227; R v RLP [2009] VSCA 271; 213 A Crim R 461; Gregory (a pseudonym)v The Queen (2017) VSCA 151; 268 A Crim R 1; Stalio v The Queen [2012] VSCA 120, Hague v The Queen [2019] VSCA 218.
Sentence:Total effective sentence of 2 years 6 months imprisonment with 2 years of the sentence suspended for 2 years; Sex Offender Registration for life; 6AAA declaration- 3 years imprisonment with 2 years of the term to be suspended for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms V. Kambouropoulos | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr S. Norton | Stary Norton Halphen |
HER HONOUR:
Introduction
1Albert Frost, [1] you have pleaded guilty to the following seven (7) charges:
·Charge 1: Unlawful and indecent assault of a male (RW)[2] under 16 between 17 November 1976 and 16 November 1978 contrary to s68(3A) Crimes Act 1958 (Vic) as amended by the Crimes (Amendment) Act 1967 (Vic).
·Charge 2: Indecent assault of a person (RW) under 16 between 17 November 1981 and 16 November 1983 contrary to s44(1) Crimes Act 1958 (Vic) as amended by the Crimes (Sexual Offences) Act 1980 (Vic).
·Charge 3: Indecent assault upon a male (JS)[3] under 16 between 11 September 1977 and 10 September 1978 contrary to s68(3A) Crimes Act 1958 (Vic) as amended by the Crimes (Amendment) Act 1967 (Vic).
·Charge 4: Indecent assault upon a male (AJ)[4] under 16 between 13 May 1978 and 12 May 1980 contrary to s68(3A) Crimes Act 1958 (Vic) as amended by the Crimes (Amendment) Act 1967 (Vic).
·Charge 5: Indecent assault upon a male (CT)[5] under 16 between 1 August 1980 and 31 December 1981 contrary to s68(3A) Crimes Act 1958 (Vic) as amended by the Crimes (Amendment) Act 1967 (Vic).
·Charge 6: Indecent assault of a person (SB)[6] under 16 between 1 January 1981 and 31 December 1984 contrary to s44(1) Crimes Act 1958 (Vic) as amended by the Crimes (Sexual Offences) Act 1980 (Vic).
·Charge 7: Indecent assault of a person (JG)[7] under 16 between 13 September 1984 and 12 September 1987 contrary to s44(1) Crimes Act 1958 (Vic) as amended by the Crimes (Sexual Offences) Act 1980 (Vic).
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
2At the relevant time, each offence carried a maximum penalty of five years' imprisonment.
Circumstances of the offending
3The agreed facts of your offending are set out in the Summary of Prosecution Opening (Exhibit A). By way of background, at the time of the incidents, you were a parishioner at a Church. You also coached the Basketball team, and led the Boy's Club, both of which were affiliated with the Church and led/facilitated by you.
Charge 1:RW
4RW and his family attended the Church during which time RW was a member of the basketball team and Boy’s Club. Between 1976 and 1978 RW recalls you invited him to your home for sleepovers. You would also often collect RW from his home on Saturday morning and after basketball training in the evening, he would stay at your home for the night, returning home before church the following morning.
5On a date between 17 November 1976 and 16 November 1978, when RW was aged between 7 to 9, he stayed at your home for a sleepover. At one stage in the morning, RW was sitting next to you on the couch, watching television. RW then sat on your knee but he cannot recall if he was asked to do so. Whilst seated on the couch, you placed a blanket over RW' knee and placed your hand down his pants and fondled his penis. RW was scared by this. You continued for approximately 5 to 10 minutes before stopping. There were other boys in the room at the time.
Charge 2:RW
Incident 1
6Some years later, between 17 November 1981 and 16 November 1983, when RW was aged between 11 and 13, he again attended at your home for a sleepover. RW was sitting on the couch beside you watching television and he then sat on your knee. Whilst on the couch, you put a blanket over your knees and placed your hand down RW' pants and fondled his penis.
Incident 2
7After incident 1 and at some time in the charge period, RW attended the Boys’ Club, where he stayed behind at your request. When you were alone, you positioned RW on your lap, pulled his pants down and fondled his genitals.
Incident 3
8You then drove RW home and on the way put him on your lap and he steered the car during which you placed your hands down his pants and fondled his genitals. RW recalled this occurring several times in your car.
Incident 4
9On another occasion, you took RW to Porepunkah for the weekend to see the snow and when you were helping him with his pyjamas that night you placed your hand down his pants and fondled his genitals.
Charge 3:JS
10From 1977 to 1978, JS was involved with the basketball team which you facilitated. You formed a friendship with JS and would invite him over to your house for sleepovers. On some date between 11 September 1977 and
10 September 1978, when JS was aged nine, he was at your house and whilst you were both sitting on the couch watching videos you put your hand down JS's pants and stroked and squeezed his penis until the film ended. JS said he felt uncomfortable but did not know how to tell you to stop. You told him not to tell anyone. JS recalled this happening on several occasions during sleepovers.
Charge 4: AJ
Incident 1
11From around 1978/1979, AJ was involved with the basketball team you facilitated. One time when AJ was eight, he went to your home, and you put your hand down his pants and played with his penis. AJ was shocked and alarmed.
Incident 2
12On New Year's Eve in 1979 or 1980, you and AJ went to Bright to visit your family and you and AJ slept on a mattress in your camper trailer. While AJ was lying on his back you put your down his pants and touched his penis. You then placed AJ's hand on your erect penis and put your own hand on top of AJ's and began to masturbate. You did not ejaculate.
Incident 3
13On another occasion, when AJ was aged nine, he went to your house and while he was sitting on the couch, watching cartoons, you placed your hand down his pants, and fondled his penis.
Charge 5: CT
Incident 1
14CT and his family attended the Church Easter Camp each year which you also attended. On a date in August 1980, when CT was 10, he went to your house for a sleepover. There were two other boys present. When you were both seated on the couch, you took hold of CT's leg and placed it within your groin region while smiling at CT and tapping his leg.
15Later, you gave CT a blanket and a pillow and he went to sleep on the couch. CT later awoke to find himself naked in bed with you next to him, stroking his penis. CT ran to the bathroom in shock. You tried to enter the bathroom and apologised. CT dressed himself.
Incident 2
16On a date in August 1981 when he was 11, CT went to your house for a sleepover. CT went to sleep on the couch and awoke naked in bed with you next to him, stroking his penis and playing with his foreskin using your thumb. CT said he wanted to go home but you said, 'No we are going to have a good day, we are going to the football'. You went into the kitchen and CT dressed himself and ran out the front door.
Charge 6: SB
Incident 1
17SB and his family attended the Church. In 1978, he became involved with the basketball team, and later, the Boy’s Club. He would regularly attend your home for a sleepover. When SB was aged 11 to 12, he went to your house for a sleepover and when he awoke you asked him into your bed for a cuddle, and he got into your bed. As SB was laying on his back, you moved his pyjama pants down and fondled his genitals.
Incident 2
18On another occasion, you took SB to Porepunkah for the weekend and whilst driving he sat on your knee and steered the vehicle. You placed your hand down SB's pants and fondled his genitals.
Charge 7: JG
Incident 1
19Whilst he was in primary school and aged between 10 and 12, JG became involved with the basketball team and the Boy’s Club and would attend your house for sleepovers. Once when he was at your house, JG remembered sitting near you before you called him over to sit on your knee. When JG did so you placed your hand down his pants and touched his penis. This occurred two or three times.
Incident 2
20On another occasion, you and JG visited your family in Beechworth and one morning, whilst JG was laying on his back in bed, you pulled his pyjama pants and underwear down and touched his penis.
RECORD OF INTERVIEW
21On 26 January 2024 and 8 May 2024, you participated in Records of Interview and stated:
With respect to RW (Incident 1)
a) 'RW was in - in my youth class and I used to play basketball with. And unfortunately, I got very friendly with him. I didn’t mean to do it. It just something it - it just it happened. And I - I put my hand down his - in his pant and I’ve touched you know, so yeah'
b) 'I don’t know why I did it...' 'And I always – I’ve always regretted it - I don’t know - and I haven’t and since and since that time, I have never touched a kid, a child in that way in my lifetime now. That’s over 40 years'
c) It was just touching, and you played with it for a short time. 'Five - about ten minutes'
With respect to JS
a) 'I remember touching him once'. 'We were just having a - well, we were having - just having a wrestle match. He was on top of me. I got - turned him over, put him on his back and I just went there and, yeah, had we had had started playing with his - with his penis...' (Q&A 327).
b) 'Yeah, just had a fiddle. Yeah, yeah. I just played with it for a while, yeah' (Q&A 336).
With respect to AJ
a) '…He … he’s asked if he can stay at my place, that was at - that was at – he’s done that quite a few times. Basically, the same thing, I put him - I had a - have a hand ... I had my hand down his pants' and this occurred 'Quite a few times, quite a few times'.
VICTIM IMPACT STATEMENTS
22In reaching a sentence that is appropriate in all the circumstances, I have had regard to the relevant and admissible portions of the Victim Impact Statements prepared by RW (Exhibit B), SB (Exhibit C), JS (Exhibit D) and CT (Exhibit E). JG and AJ did not provide statements, but I note the presumption of harm having occurred to them because of your sexual abuse.
23SB read his victim impact statement to the court. He described feeling deeply ashamed and embarrassed about what had happened to him. He said he struggled with friendships during his high school years because other members of his basketball team attended his school and he lived in fear of other people finding out. He said he grew up disconnected to his family. This was in part because you would often visit his parents' home, so he only went there when he really had to in case you were there. He said the offending impacted his relationships with his own children because he was scared that when he showed them affection it could be taken the wrong way. He said he was stunned that you sent him a friend request on Facebook a few years ago and why you would think he would want anything to do with you.
24CT also read his victim impact statement to the court. He said he remembers not having the confidence to tell anyone what you did to him because he was afraid of not being believed. He described how he struggled to come to terms with what happened to him and how your offending has played on his mind his whole life. He said you were someone he looked up to as a mentor and he cannot believe you took advantage of his innocence as a child.
25RW read his victim impact statement to the court and spoke of how your offending against him has had a severe and lasting impact, affecting every stage of his life up to the present time. He struggled at school, was unable to trust men in positions of power, and found himself struggling to make friends and becoming a target of bullying. He said that your offending has left him with low-self-esteem, feelings of worthlessness and struggling to build normal relationships even with his family. He told the court that he struggles to understand what appropriate fatherly behaviour looks like, resulting in him being extremely cautious with expressions of love and affection with his own children. RW described having found some comfort through the support of a counsellor and through medication to deal with his struggles with the depression and anxiety caused by your offending.
26 JS described growing up an angry and confused child because of your offending. He has been unable to feel content and happy in his life, being in a constant state of trauma or paranoia and having frequent suicidal thoughts. To cope, he has lived a solitary life, unable to trust other people or form romantic relationships. He described self-medicating with alcohol and marijuana to numb his feelings. He reflected that had the offending not occurred, he would have been a person capable of embracing life's opportunities, forging deep connections and finding genuine joy.
PERSONAL CIRCUMSTANCES AND MATTERS IN MITIGATION
27You are now aged 79. I accept that your advanced age, mobility issues and the fact that you are a first-time offender at such an age will make imprisonment harder for you, and I take these factors into account to mitigate sentence. However, in determining the weight to be given to your age, you are not the oldest person to be sentenced for historic sexual offences by any means. It is also not the case that old age is determinative of the length or type of sentence to be imposed. Sentencing principles such as just punishment and general deterrence remain very important sentencing considerations and an unacceptably inappropriate sentence cannot be justified simply because by the time you were brought to justice, you were in your late-70s.[8] I have cited three cases of that proposition. As I said though, I do take your age and its consequences into account in mitigation of sentence.
[8] R v RLP [2009] VSCA 271; 213 A Crim R 46, [39], citing R v Bazley (1993) 65 A Crim R 154 at 158; R v Smith (1987) 44 SASR 587.
28You have no prior convictions, and no subsequent or outstanding matters. I have had regard to the contents of four (4) character references and an email provided by your family and friends (Exhibit 6). The references speak unanimously of the substantial contributions that you have made to the community through your long history of performing both formal and informal volunteer work and to your contributions to the church over a lengthy period. The authors speak of you as someone who puts the needs of others ahead of your own, for instance in your care for your terminally ill brother and a house bound friend. You remain active in the local church community.
29You grew up in Melbourne's inner west and have two brothers. Your family was working-class and adhered to a strict Baptist faith and conservative values such that matters relating to sex were taboo topics. Your family moved around a bit as your parents ran various mixed businesses. You were born deaf and required surgery to improve your hearing. You described your childhood as 'good', with no family history of alcohol or drug abuse, mental illness, family violence or criminality. Your parents' relationship was a loving one free from major conflict. Your parents and elder brother are now deceased. You reported to Mr Newton that you were anally raped by a neighbour when aged 8 or 9, which you understandably found to be painful and a distressing experience, and one that you told no one about apart from your brother. I take that factor into account.
30You were not academically strong, but you completed Year 9 before undertaking a printing apprenticeship. You have always been employed, working as a driver for a chocolate factory, working with your parents for about 12 years, and then as a school cleaner and caretaker until you retired at 62.
31You have always lived alone and lived a modest life. You have had two relationships but have never had an intimate consensual sexual encounter. You are surrounded by people and since your retirement some 17 years ago you have engaged in considerable voluntary work which has included taking the elderly on outings, house sitting and working for Vision Australia.
32Unsurprisingly, you have some health issues given your age. You have recently had a fall, a second hip replacement surgery is likely required, and you walk with a cane. A letter from Dr Tang (Exhibit 3) confirmed that you have osteoarthritis which will progress with age and worsen your mobility, and you need regular skin checks. Dr Tang also referred to your mental health having been affected by your brother's death, anxiety due to the current court proceedings and guilt from having committed the offences. You are otherwise in generally good health. You have never drunk alcohol or used any illicit substances.
33I have had regard to your health conditions in determining your sentence. I accept your reduced mobility may render imprisonment more burdensome on you and that you have anxiety and depression that would likely be heightened if you were imprisoned. However, the weight I give to your health issues is tempered by the fact that there is no evidence before me that there is a serious risk of imprisonment having a gravely adverse effect on your mental or physical health.[9] None of your conditions are life threatening, nor are they such that they cannot be managed in a prison environment.
[9] Van Boxtel (2005) 11 VR 258, 267 [29] (Callaway JA); [2005] VSCA 175.
34I have considered the contents of the psychological reports from Mr Patrick Newton (Exhibit 1) and Mr Geoffrey Burrows (Exhibit 2). You attended
Mr Burrows and undertook ten (10) treatment sessions in the Sex Offender Treatment Program between 24 January and 20 June 2025. You presented to Mr Burrows with depression and anxiety related to the current court proceedings and requested supportive counselling to deal with this and to gain further insight into your offending. Mr Burrows noted that you did have some insight into the reasons for your offending in that you said you had come to view your victims as peers notwithstanding you were much older than them and occupied a position of trust and power over them, and you had believed your offending was a positive experience for the victims and they were capable of consenting. You were also unsure about how harmful your behaviour was at the time because you had been a victim of sexual abuse, and your offending behaviour was 'less forceful' than what you personally had experienced, and it did not involve penetration. With time you realised it was harmful, and you stopped any direct involvement with children to stop yourself from offending.35Mr Burrows stated that you engaged actively in the Sex Offender Treatment Program and further psycho education has enhanced your insight into the harm caused to children by sexual activity with an adult and you have engaged in relapse prevention planning. After some treatment, Mr Burrows considers the significant symptoms of depression and anxiety present following your arrest are less intense, you no longer consider suicide and have improved your ability to manage your mental health and negative emotions. This may be contrasted with the opinion of Mr Newton who considers, based on test results, that you are still at risk of suicide notwithstanding you told him you do not have any active desire to end your life. Mr Burrows concluded that you do still experience some anxiety, especially at the prospect of being imprisoned, and you have depressive symptoms and feelings of shame about the harm you caused the victims, but these have reduced. You have no ongoing offence-specific treatment needs.
36Mr Newton opined that you were not suffering from any mental disorder at the time of the offending, nor are you at the time of sentencing. Accordingly, the principles espoused in Verdins[10] (limbs 1 to 4) have no applicability to your case. I do have regard however to Mr Newton's opinion that your offending can be explained as having occurred in the context of your maladaptive and dysfunctional personality traits which arose from social detachment and poor sexual adjustment. Essentially, Mr Newton opined that your offending arose from your immaturity and social incompetence, coupled with your uncertainty about the sexual development of young boys, the harm caused by sexual activity between adults and underage children, and your lack of understanding of issues around the provision of consent. In effect, he said you were suffering 'cognitive distortions' arising from your poor sexual adjustment, your view that you were of a similar maturity level as the complainants and that their compliance meant they wanted to have sexual activity with you, and they would not be harmed.
[10] R v Verdins (2007) VSCA 62; 16 VR 269; 171 A Crim R 227 (‘Verdins’).
37Further, Mr Newton noted that whilst you are prosocial, you do not seek to have intimate relationships and prefer solitary pursuits, which likely arises from your own experience of childhood sexual abuse. He continued that you would have met the diagnosis for paedophilia at the time of the offending because you engaged in sexual activity with multiple pre-pubescent male children over an extended period and you found the conduct sexually arousing even whilst knowing it was wrong.
38Mr Newton indicated that you have good insight into the causes of your offending and the harm it caused and your recent engagement in treatment has solidified your own reflections and realisation of these matters over the years. He considers you to be a very low risk of reoffending in view of your prosocial attitudes, family and community supports, motivation not to reoffend and to continue offence specific treatment, albeit this is not required.
39Mr Newton further opined that imprisonment would be more onerous for you given your age, health issues, demographic relative to other prisoners, first time prisoner status and the nature of your offending. You may be vulnerable to predation from other inmates. Again, I take these matters into account.
40You pleaded guilty to the charges at the earliest opportunity. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses, especially the victims, from having to give evidence, and to reflect its demonstration of acceptance of responsibility, and willingness to facilitate the course of justice.
41Your plea itself also demonstrates a degree of remorse. I am also satisfied that you have expressed much remorse in addition to your plea. You expressed your shame and guilt in the letter of apology you wrote to the six (6) victims of your offending (Exhibit 5). You acknowledged how you breached their trust and told them that you understood the effects your offending had on them and that you hate yourself for the pain you caused. You asked for their forgiveness and said you wished you had apologised earlier. You also expressed remorse, and shame to those who provided you with references and to both Mr Newton and
Mr Burrows.42Your counsel also relied on the delay or passage of considerable time since you offended, and the fact that in this time you have rehabilitated in the sense that you have not committed any further offences, you no longer require offence specific treatment, and you have contributed a great deal to society. I accept that in the period since you offended you have achieved rehabilitation in the sense argued by your counsel, and I give weight to this factor.
43However, I do not accept this to be a case where you had the uncertainty as to whether you would be charged hanging over your head or any uncertainty as to the sentence you may receive. You were charged on 6 November 2024, more than 30 years after the offending. This delay was not due to a failure to act by authorities, but because of the nature of the offending you committed. As was made clear in Mush v The Queen[11] delay of itself is not mitigatory and it would be somewhat 'incongruous' for an individual whose offending is not detected to live normally for decades but subsequently receive a sentencing benefit due to that delay. Relevantly, it was held in R v Kovac[12]:
'Although it may seem harsh to punish an offender for offences committed many years ago, the long delay has affected the...victims of these offences, who have had to wait many years for the offender’s wrongdoing to be recognised and punished. It is common for child victims to have difficulty telling others about the offences which have been committed against them.'
[11] [2019] VSCA 307, [98].
[12] (2006) 166 A Crim R 358, 363 [28].
SENTENCING PRINCIPLES AND CONSIDERATIONS
44In sentencing you, I have had regard to the purposes for which a court may impose sentence set out in s 5 of the Sentencing Act 1991 (Vic) and to the matters outlined in s 5(2), which include the maximum penalty for the offences, the nature and gravity of the offences, the offender's culpability and degree of responsibility for the offence, the impact of the offending on any victim, an offender's prior character, and the presence of any aggravating or mitigating factors or other relevant circumstances.
45In my view, your offending must be viewed as serious given the following factors:
a) You are being sentenced for seven (7) distinct and discrete sexual offences against children, each carrying a maximum sentence of five years' imprisonment.
b) Charges 2 and 4 to 7 are 'rolled up' counts representing more than one instance of offending - each capable of constituting a separate offence - in each single charge. Accordingly, the criminality involved in these charges is greater than with a charge involving only one episode of criminal conduct.[13]
c) There were six (6) child victims of your offending. All the victims are presumed to have suffered harm because of your offending.[14] Four victims also provided victim impact statements attesting to the actual harm, especially psychological harm, they have suffered in the years since the abuse.
d) On one occasion after you sexually abused the 11-year-old victim of Charge 5, he told you he wanted to go home but you would not let him. He then dressed himself and ran out the front door when you were out of the room.
e) Your victims were young boys ranging from around seven to 12 years old who were clearly vulnerable. You were an adult aged between 30 and 41 years of age at the time of the offending, which is significantly older than the victims. You were obviously aware of the age of your victims and your exploitative conduct had the effect of destroying each victim's sense of an enjoyable, pleasurable and happy childhood.
f) You occupied a position of trust and authority, which you breached. Your offending occurred when you facilitated recreational activities as part of the Boys Club and were their basketball coach, which were both under the auspices of a church environment. As such, you were also trusted by their parents who allowed the children to accompany you and be under your care and supervision.
g) Your offending was not isolated or spontaneous. As accepted by your counsel, your offending extended over a considerable period. This is measured in terms of years. Your offending was persistent and prolonged. Again, five charges involved the sexual abuse of a victim on more than one occasion.
h) Your offending may also be characterised as predatory and opportunistic. You procured access to the child victims by inviting them for sleep overs at your house, to go camping with you and to visit your family, or you had them sit on your knee whilst steering your car. This also increased the chances of your offending going unobserved, as you were either alone with a child or if other children were present at your house when you assaulted a child sitting on your knee, you placed a blanket over your knee.
i) Notwithstanding the explanation for your offending provided by Mr Newton and Mr Burrows, you knew what you were doing was wrong and completely at odds with your Christian faith. You did so for sexual gratification, given the opinion of Mr Newton that you would likely have been diagnosed with a paedophilic disorder at the time you offended. I accept the prosecution submission that your moral culpability for the offending is high.
[13] Bruce v The Queen [201221] VSCA 100, [30-31]; R v De Leeuw [2015] NSWCCA 183, [116].
[14] Clarkson v The Queen (2011) 32 VR 361, 364 [3].
46In assessing the objective gravity of your offending, I have also regard to the fact, as submitted by your counsel, that your offending involved genital fondling or sexual touching – sometimes on one occasion only - rather than penetrative sexual acts and was not accompanied by physical force, acts of degradation, threats or inducements. I note however what was said by the court in Morris v R:[15]
‘It is a grave thing to assault a young boy by exposing his penis and masturbating him….While not penetrative, each such act is a serious invasion of the victim’s bodily integrity and autonomy’
[15] [2016] VSCA 331, [60].
47Turning to your prospects of rehabilitation, I am of the view, like Mr Newton, that these are very good given your advanced age, lack of prior convictions and subsequent or pending matters in the very long time since the offending, your solid community and family supports, your acceptance of responsibility and display of remorse for your actions, the fact that you have no longer have a sexual interest in underage children and do not require offence specific treatment, your voluntary accessing of treatment, which has solidified your pre-existing insight into the harm your offending caused to the victims, and your very low risk of reoffending.
48I accept that specific deterrence has little role to play in sentencing you for the reasons set out above. In terms of protection of the community, this must be regarded as the central purpose of sentencing you on Charges 3 to 7, as the serious offender provisions of the Sentencing Act 1991 are enlivened once you have been sentenced to imprisonment on Charges 1 and 2. In sentencing you on Charges 3 to 7, I do not however propose, nor was I urged, to impose a disproportionate sentence on these charges. I am also not minded to direct that the sentences imposed be served wholly cumulative on each other, as this would result in a sentence that would clearly breach the principles of totality and proportionality. Otherwise, in sentencing you on Charges 1 and 2, where the Serious Offender Provisions are not applying, I do not consider great weight needs to be given to protection of the community, as there is little chance you will reoffend given the matters articulated above in my assessment of your prospects of rehabilitation.
49As was accepted by your counsel, general deterrence is a very important sentencing principle in offending of the type you committed.[16] Where general deterrence is primary, personal mitigatory factors such as prior good character, age, prospects of rehabilitation etc., must therefore be given less weight than might otherwise be given.[17] Denunciation is another very important sentencing principle in your case. I must denounce your offending on behalf of the community, both in words and by imposing an appropriate sentence.
[16] DPP v Toomey [2006] VSCA 90 [22-] – [223]
[17] Heathcote (a pseudonym) v The Queen [2014] VSCA 35 [at 35]; DPP (Cth) v Thomas [2016] VSCA 237 at [193]; Gajjar v R (2008) 192 A Crim R 76 at [27-28.]
50I must also have regard to the need to impose a sentence that represents just punishment for your offending. Your counsel submitted that, 'just punishment is a difficult thing to arrive at', given your age, very low risk of offending, the passage of time since the offending, your rehabilitation, the reasons for your offending and your remorse.
51I am keenly aware that I must take care not to allow just punishment to be swamped by retribution, or to allow myself to be overwhelmed by the consequences of your offending, but it has had an immense and profound effect on six individuals over many, many years. You have caused very deep harm to others which has impacted each of their lives significantly and in a variety of different deleterious ways. There must be a measure of just punishment for offending of this breadth and level of harm, bearing in mind also that you have lived a generally stable and positive life since you offended, whilst four (4) of your victims, spoke of the damage you caused them being something they have endured through the decades - all the while diminishing their lives.[18]
[18] Mackie v The Queen [2022] VSCA 28, [39].
52I am also entitled to have regard to society's abhorrence for any sexual offending against children as a factor to consider when fixing a penalty that is just in the circumstances.[19]
[19] Stalio v The Queen (2012) 46 VR 426; [2012] VSCA 120, [72].
CURRENT SENTENCING PRACTICES
53In sentencing you I am cognisant of and guided by the maximum penalties for the offences at the time of the offending. Reflecting what was said in Stalio v The Queen,[20] I do so, '…not simply as an outer limit but as a guide to the sentence properly available'.
[20] Ibid, [50].
54I am also mindful that in principle 'current sentencing practices' may be relevant to sentence, '…not because "current sentencing practices" as referred to in s 5(2)(b)… relates to practices at the date of the offence, but because this factor is relevant to attainment of the purposes set out in s 5(1), and in particular the imposition of just punishment'. However, equal justice requires that I have regard to sentencing practices at the time of the offending insofar as they can be established given sentencing is occurring after a significant lapse of time.[21]
[21] Ibid, [50].
55I was provided with some statistics produced by the Sentencing Advisory Council for the offence of indecent assault committed between 1 July 2018 and 30 June 2023. These have obvious limitations, not least being that they were imposed quite sometime after the dates of the present offences. Accordingly, whilst the lower maximum penalty can clearly be identified in the present case, I do not have evidence of any difference in sentencing practice apart from that '…consequent upon that lower maximum'[22]
[22] Ibid, [66].
56Even if I could identify any sentencing practice that existed for offences committed at the time of your offending, I am guided by what was said recently in Hague v The Queen:[23]
'The sentencing practice that applied to offending of this kind at the time of the offence is relevant to the extent that it can be ascertained. However, just as current sentencing practices cannot control the sentencing discretion in any particular case and does not cap and collar the sentence, past practices cannot have a greater or more controlling effect.'
[23] (2019) VSCA 218, [252].
TOTALITY AND CUMULATION/CONCURRENCY
57I consider that there should be a modest degree of cumulation between the sentences imposed on each charge to reflect the distinct and separate instances of offending and the separate harm caused to each of the victims (and where the victim is the same in more than one charge (RW) to reflect the additional discrete offending against him). Of course, I do so mindful of the principles of totality and proportionality.
SUBMISSIONS ON SENTENCE
58Mr Norton, who appeared on your behalf, acknowledged that your offending was serious and the harm caused to your victims was significant. It was not argued that a sentence of imprisonment was not warranted in your case. However,
Mr Norton urged me not to impose a sentence on you that involves immediate imprisonment, but to impose a suspended sentence – an option which is available given the time at which your offending occurred. The prosecution submitted that it would be open to me to impose a sentence of imprisonment with all or part of it suspended.59I accept that s27 of the Sentencing Act 1991 (Vic) was in force as an available sentencing disposition at the time of your offending, as long as the sentence did not exceed three years. I have set out s27 which says that:
'(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.'
60I have considered the requirements in s27(1A) to be satisfied to impose a suspended sentence, and I have set those out and I will not repeat them here:
61I have considered the matters set out above in s 27(1)(A) and I am of the view that a suspended sentence is an appropriate disposition in your case. However, given the serious nature of offending, which involved seven charges of sexual offending against six different male children over a relatively long period of time, I do not consider a wholly suspended sentence to be appropriate, and you will be required to serve some part of the sentence of imprisonment I impose. In all the circumstances of your case, a wholly suspended sentence – albeit it is still a sentence of imprisonment – would not meet the strong need for general deterrence, denunciation and just punishment. Your offending was prolific and involved children as young as seven, with some children being abused by you more than once. The effect your offending has had on your victims has been significant.
62The importance of general deterrence, denunciation and just punishment means it cannot be the case that you are spared actual imprisonment simply because your offending occurred a long time ago and you are now an elderly man.
63This does not mean that your very good prospects of rehabilitation, your age, lack of prior convictions, delay, plea of guilty and remorse, low risk of reoffending and the positive contributions you have made to the community in the 30 or so years since the offending, and the other matters raised in mitigation are ignored. I have given full weight to those considerations in determining the appropriate periods of imprisonment on each charge, the total effective sentence after cumulation, and the period of imprisonment that is suspended.
Sentence
64On Charge 3, you are sentenced to 15 months' imprisonment. This is the base sentence, and I direct that it commences today, 1 August 2025.
65On Charge 1, you are sentenced to six months' imprisonment. I direct that two months of this sentence be served cumulatively on the sentence imposed on Charge 3.
66On Charge 2, you are sentenced to 12 months' imprisonment. I direct that three months of this sentence be served cumulatively on the sentence imposed on Charge 1.
67On Charge 4, you are sentenced to 12 months' imprisonment. I direct that three months of this sentence be served cumulatively on the sentence imposed on Charge 2.
68On Charge 5, you are sentenced to 14 months' imprisonment. I direct that three months of this sentence be served cumulatively on the sentence imposed on Charge 4.
69On Charge 6, you are sentenced to 6 months' imprisonment. I direct that two months of this sentence be served cumulatively on the sentence imposed on Charge 5.
70On Charge 7, you are sentenced to 9 months' imprisonment. I direct that two months of this sentence be served cumulatively on the sentence imposed on Charge 7.
71This results in a total effective sentence of two and a half years or 30 months' imprisonment.
72I order that two years (24 months) of the sentence of imprisonment be suspended for a period of two years. This means that you will be required to serve six months of the term of imprisonment immediately and the remaining two years of the sentence will be suspended for two years.
73 There are no days to be declared as pre-sentence detention.
74Three charges are Class 2 offences listed in Schedule 1 of the Sex Offenders Registration Act 2004 (Vic) which means you are required to comply with reporting obligations for life.[24]
[24] s 34(1)(c)(iii)
75I also enter into the records of the court that from Charge 3 onwards, you are sentenced as a serious sexual offender.
76Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a total effective head sentence of three years' imprisonment with two years of the term suspended for two years.
77Could you please take Mr Frost into custody.
78Thank you very much for your assistance.
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