Director of Public Prosecutions v Gibney (a pseudonym)
[2025] VCC 679
•28 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM GIBNEY (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2024 | |
DATE OF SENTENCE: | 28 May 2025 | |
CASE MAY BE CITED AS: | DPP v Gibney (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 679 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW: Sentencing
Catchwords: Indecent act with a child under 16 – incest – common assault – make threat to kill – sexual penetration of a child or lineal descendant – sexual assault of a child under 16 – jury verdict - Bugmy – reduced moral culpability – delay – Category 1 offence - principle oftotality – serious sexual offender – Sex Offender Registration Act
Legislation Cited: s5 Sentencing Act 1991 (Vic), Sex Offender RegistrationAct 2004
Cases Cited:Bugmy v The Queen [2013] HCA 37, R v Hermann [2021] VSCA 160, Brown v R [2019] 59 VR 462, Azzopardi, Baltatzis & Gabriel v The Queen [2011] VSCA 372, Veen v The Queen [No 2] (1987-8) 164 CLR 465, DPP v Reynolds [2022] VSCA 263,
Sentence: Total Effective Sentence of 18 years imprisonment non parole period 10 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr R. Bhattacharya | Doherty Legal |
HER HONOUR:
1Sam Gibney,[1] you were born in July 1981, and you are now 43 years old. In your younger years you had a relationship with Gabriella Margarot[2] and together you had four daughters, Eva[3] born in 2004, Phoebe[4] born in 2006, Sara[5] born in 2007 and Lily[6] born in 2010. Shortly after the birth of Lily Ms Margarot relocated to Victoria with your daughters. You reunited for a time and then in 2012 Gabriella Margarot left the family home and did not return. From this time, you assumed the full-time care of your four daughters.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
2You offended against your daughters Phoebe, Sara and Lily and your offending occurred between 1 January 2013 until the day of your arrest on 17 January 2021.
3On 2 August 2023 you were arraigned on Indictment M10491265.A and pleaded not guilty to a total of 25 charges, including two charges of indecent act with a child under 16, one charge of incest, nine charges of common assault, one charge of threat to kill, nine charges of sexual penetration of a child or lineal descendant and three charges of sexual assault of a child under 16.
4On 30 August 2023, after a trial lasting 19 days, you were found not guilty of Charge 4, common assault involving Sara, Charge 22, sexual assault of a child under 16 involving Lily, and Charge 23, sexual penetration of a child or lineal descendant, again involving Lily. You were found guilty of Charges 5, 6 and 11 of common assault against Sara, Charges 15, 19 and 20, common assault against Phoebe, and Charge 21, make threat to kill, again against Phoebe. You were also found guilty of Charges 24 and 25 of common assault against Lily. The jury were unable to reach verdicts on the remaining charges.
5On 16 May 2024, after two previous attempts to commence your trial on the remaining charges, you were arraigned on Indictment M10491265.C. You pleaded not guilty to a total of 13 charges including two charges of indecent act with a child under 16, one charge of incest, eight charges of sexual penetration of a child or lineal descendant and two charges of sexual assault of a child under 16.
6On 31 May 2024, after a trial that continued for 11 days, you were found guilty of Charges 1 and 2, indecent act with a child under 16 involving Sara, Charge 3, incest, again involving Sara, Charge 4, sexual assault of a child under 16, again involving Sara, Charges 5, 6 and 7, sexual penetration of a child or lineal descendant, again involving Sara, and Charges 8, 9, 12 and 13, sexual penetration of a child or lineal descendant involving Phoebe, and Charge 11, sexual assault of a child under 16 again involving Phoebe.
7In total you are to be sentenced for eight charges of common assault, one charge of make threat to kill, two charges of indecent act with a child under 16, one charge of incest, two charges of sexual assault of a child under 16, and eight charges of sexual penetration of a child or lineal descendant.
Circumstances of offending
8The full circumstances of your offending were detailed in the Summary for Prosecution opening dated 25 October 2021. This document was amended to exclude paragraphs that related to offending for which you have been acquitted and then tendered on your plea. A summary of your offending in relation to each of the victims is as follows:
Sara
9The first incident Sara recalled occurred at the Doncaster property. You were having a shower and Sara went into the bathroom and you dropped your towel. She looked away and you said, 'it’s okay'. You asked her to rub your penis. She then masturbated your penis by 'holding it up and down' and this occurred when Sara was 'probably eight or nine' and when she was at primary school.
10A couple of weeks later you asked Sara if she could 'rub [your] dick' and she did. You then asked if she could 'try sucking on it', but Sara did not know what you meant. She was standing by your bed, and you told her 'I’ll show you'. You put your penis into her mouth and moved 'in and out'. This happened when Sara was 'probably seven or eight' and when she was at primary school.
11On an occasion when you were all living at the Kennington property, Sara was in the hallway outside the bathroom. You were 'mad' because the house was not clean. You punched her in the stomach which took her breath away and caused her stomach to hurt. You told her to 'stand up' and hit her in the face which caused her nose to bleed and her to feel dizzy. This happened in the middle of the year after Phoebe’s birthday and before her own, and Sara was either 11 or 12 in Grade 6 at primary school.
12When Sara was in Grade 6 at primary school she tried to run away and left school at recess with another student. They jumped the school fence and walked to the nearby IGA where you found them. She ran from you, and you chased her and told her you would not hurt her and that you just wanted her to come home. Sara got into the car with you, and you went back to school and had a meeting with the school wellbeing officer. Sara told her everything was fine at home because you told her not to say anything and you were present in the meeting.
13When Sara got home you grabbed her by her throat or the windpipe for around 10 seconds, you pushed her to the ground twice and told her to “get up” and then pushed her into the wall. This caused bruising to Sara’s back and arms.
14Sometime in January 2021, a few nights before the police arrived at the family home, you woke Sara up and told her to come to your bedroom. You were wearing jocks and told her to lay down on your bed. You then told her to “rub [your] dick” and she did this by rubbing it 'up and down'. You then told her to “suck [your] dick” and Sara moved between your legs, put your penis in her mouth and sucked it “up and down.”
15You then asked Sara “Can I put my dick in your pussy”, and she said, “No, cause it hurts too much, and I don’t feel like it”. You told her to lie on her side, put on a condom and inserted your penis in her vagina. Sara states that this “was really hurting” and she started crying. You told her to shut up and stop crying and the incident finished when you ejaculated.
16On the night before the police attended the family home, you woke Sara and told her to come into your bedroom. You had a carboard box which had a hole cut in it and you told Sara to go on the other side of the box, put your penis through the hole and made her suck your penis.
17As Sara did this you told her to use your phone to take a video of your penis, which she did. As you were about to ejaculate you told Sara to take a photo of your penis and whilst taking the photo your penis was not in her mouth. Sara then continued sucking on your penis until you ejaculated in her mouth. You told her to spit it out and go to bed.
18On 17 January 2021 you were angry because the house was in a mess, and you had no cigarettes. You told the girls to clean up their mess and pushed Sara’s head into the hallway wall which “really hurted” and made her dizzy. You told all four children that they had to clean the house, and Sara was in Eva’s room making her bed when the police attended.
Phoebe
19The first occasion anything happened with Phoebe was in your bedroom at the one of the residences you shared with your children. You got Phoebe to come to your room and told her you wanted to “fuck her,” or words to that effect. You then penetrated her vagina with your penis. This caused Phoebe pain. She asked you, “Can you stop, it hurts too much” but you did not stop. Phoebe cried throughout and after you had finished, she went to the bathroom and had a shower. Phoebe was a virgin prior to this incident, and she thinks she was aged 12 years at the time.
20On an occasion, Phoebe was in the shower getting undressed. You walked in and said something about Phoebe sucking your penis. Phoebe was naked and the shower was running. She knelt in front of you, and you put your penis in her mouth. You grabbed the back of her head and pushed your penis deeper into her mouth. This incident finished when you ejaculated in her mouth and Phoebe then had a shower and brushed her teeth.
21On another occasion, you were having sex with Phoebe on your bed. Phoebe lay on her back, but you told her to get on her hands and knees, you stood behind her and continued to penetrate her vagina with your penis. You asked Phoebe if you could put your penis in her ‘arse’ and she said “no” and you continued to penetrate her vagina until you withdrew your penis before you ejaculated. You were wearing a condom.
22On 27 February 2020 you asked to check Phoebe’s school bag. You found a skirt with matches in the pocket. You got ‘pissed off' and kept her home from school. You pulled her hair, punched her and pushed her into the walls. You then pulled everything out of her school bag and asked if she had been smoking.
23Sometime in January 2021, a few nights before the police arrived at the family home, Phoebe was in the lounge room watching a movie with you and her sisters. You called Phoebe to the kitchen and asked if you could 'fuck her'. Phoebe said “no, I’m on my period.” You then asked, “Well, can you suck my dick then?” and she said she did not want to as she did not feel well. You told her that she was “probably making up bullshit” and that “I’m sick of your shit, you always lie about it and say you don’t want to do it.” You both returned to the loungeroom and finished watching the movie. The girls went to their bedrooms, and you called Phoebe back to the loungeroom, she sat on the couch. You sat next to her and told her to give you a hand job, which she did, and this occurred under a blanket. You had your pants off.
24You then asked Phoebe if she could suck your penis, and she did. Phoebe is unsure how this incident ended but you put your tracksuit pants back on and slept in the loungeroom.
25On 16 January 2021, the night before the police attended the family home, Phoebe was in the bedroom doing an exercise video. Her sisters were in the loungeroom with you watching a movie. You came to her bedroom. You asked her for sex and she said 'no'. You left but returned shortly after. You were 'pissed off' and asked, “Why won’t you let me do it?' and told her 'There’s nothing wrong with doing it with your dad.” You told her that “All you have to do is lay there.” Phoebe again told you that she did not want to do it. You then took Phoebe into your bedroom, told her to lie on your bed and get undressed. You touched her breasts and legs and placed her legs over your shoulders and inserted your penis into her vagina. She told you this was hurting. You said, “Oh, sorry” but kept going. After you were finished you told Phoebe to have a shower. You wore a condom and did not ejaculate inside her.
26On 17 January 2021, the day the police arrived at the family home, you were angry at Lily for spilling Milo on the bench and Phoebe observed you to grab Lily by her hair, shake her around and push her into walls.
27Phoebe was in the hallway, and you hit her head against the wall causing her bruises and her head to bleed from how hard you hit her head against the wall. You also punched her in the head and stomach, pushed her to the floor and kicked her to the upper thighs and lower back whilst wearing steel cap boots.
28You then yelled at Phoebe about how she was acting at school including meeting up with boys. The two of you were in the kitchen and you punched her in the hip and held a knife to her throat and head. You asked the names of the boys she was meeting up with. You told her you would kill her if she did not have a list of names once you returned from the shops.
29Later that day Phoebe was in her bedroom when you grabbed her by her hair and told her that you would cut around the top of her head and rip her skin off. You went on to say that you would bury her under the house where no-one could find her and would just report her as missing. Phoebe was scared and she messaged her friends over Instagram and asked them to call the police, which they did, and the police arrived sometime later that day.
Lily
30Lily described an incident where you were angry at her because she had spilled Milo on the bench. You hit her over the head, either on the side or on the back of her head. You then grabbed her by the head and hair and were pulling her around before dropping her on the ground. You yelled at her for not cleaning up her mess.
31On 17 January 2021, the day the police arrived at the family home, you were angry because the girls had not done the dishes the night before. Lily was in her bedroom when you told her to clean her fish tank so you could take it to Cash Converters. You then said, “When I talk, you answer” and slapped her which resulted in her head hitting the wall.
32Phoebe, Sara and Lily also told the police about other things you would do to them. These other acts involved more incidents of violence, both physical and sexual, that occurred in the family home. They are not acts for which you fall to be sentenced, however, the prosecution rely on them to provide context to show your conduct was not isolated and the harm to your victims was greater due to the persistent nature of your behaviour.
33In terms of complaint, the physical assaults involving Phoebe and Sara were mostly reported to the police on 17 January 2021. On 4 March 2021, Phoebe told a child protection worker of the sexual abuse, and on 5 March 2021, Sara told the same child protection worker that she had been sexually abused.
34On 9 March you participated in a record of interview during which Phoebe and Sara’s allegations were put to you. You denied the allegations and stated the victims were telling lies and their allegations were 'false'. You were not interviewed in relation to Lily’s allegations as she did not make a VARE statement until sometime later.
35You were remanded in custody following the interview and remained in custody until 16 August 2022, when you were granted bail. You served 526 days during this period. You were remanded in custody following the jury verdicts on 31 May 2024, and this period of remand makes 362 days. As I calculate it, not including today my calculation is the entire PSD attributable is 888 days.
Victim Impact Statement
36Gabriella Margarot, your ex-partner and the mother of your daughters, wrote a powerful victim impact statement on her own behalf and on behalf of Sara, Lily, and Phoebe. Ms Margarot did not want her statement to be read aloud, so I will not go into detail, save to say that your offending has had an incredibly negative impact on not only your victims but also those around them.
37On 2 May 2025 the court also received a victim impact statement from your youngest daughter Lily. Lily stated although she does not have much forgiveness, she is willing to forgive you, but she will not forget what has happened. Your offending has caused her to have anxiety, and she finds it hard to communicate, she feels she is not good with words and she wants to be alone. Lily described that she feels she is not wanted. She does not have friends because she believes it would be impossible for people to like her. Lily described having trouble sleeping, she struggles with school, she does not trust people and feels uncomfortable around men.
38While Phoebe and Sara did not write statements themselves, the presumption of harm that flows from sexual offending against children is well established. I accept the submission that harm caused by your offending is significant, and I take into account the impact of your offending on the victims in sentencing you.
Nature and gravity of offending
39Incest is an extremely serious crime. This is reflected by parliament through the maximum penalty of 25 years' imprisonment and also its designation as a Category 1 offence. This means a term of imprisonment must be imposed. The Court of Appeal has repeatedly denounced offending of this nature in the strongest possible terms. The law is clear that the protection of children from exploitation by those with more power and maturity is a paramount consideration for our community. All sexual offences against children carry with them a presumption of 'long term and serious harm, both physical and psychological.' Incest is an offence that erodes the decency of family life and inherently involves a breach of trust.
40Your offending is contrary to the basic tenet of parental care for a child. You should have loved and protected your daughters, not sexually and physically abused them. You should have nurtured them and cared for them not assaulted them and degraded them.
41In assessing the objective seriousness of your offending, I have had regard to the fact that you offended against three of your daughters who were in your sole care and entirely reliant upon you. Your offending was protracted and occurred over a period of seven years. It involved numerous instances of offending that occurred against a broader background of uncharged acts. Your victims were young, between five and 14, and you were aged between 31 and 39, representing a significant disparity in age and power. Your offending mostly occurred in the family home, a place the victims were entitled to feel safe. And further, several of your penile vaginal penetrative offences involved you continuing to exact gratification whilst the victims cried in pain and asked you to stop.
42In terms of physical violence, there is a notable disparity in size between you and your victims. Much of the violent offending was done with the purpose of coercing your victims, either into silence or into behaving differently. While I am careful not to doubly punish you, I note that this provides context to the circumstances across the offending period.
43The offending that constitutes the common assault charges of which you have been found guilty may not be at the higher end seen by this court, however, I accept the submissions of the crown regarding specific instances of offending. Charge 6 on Indictment M1049126.A involved you grabbing Sara’s windpipe for approximately 10 seconds. As the Court of Appeal stated in Reynolds 'Within the context of domestic or family violence, choking represents a chilling exploitation of physical power or dominance'.[7] The words used in making the threat to kill to Phoebe were very detailed and no doubt horrifying for Phoebe to hear. Phoebe stated her fear after this incident is what prompted her to contact friends to notify the police.
[7] DPP v Reynolds [2022] VSCA 263; [80].
44In my view the combination of violence and sexual molestation means your offending equates to a serious example of offending of this nature. Your offending was protracted, degrading, occurred against multiple victims and has no doubt scarred them for life.
Personal circumstances
45As stated, you were born in July 1981, and you are currently aged 43. As a young child you did not have a relationship with your biological father. You have three siblings. The four children in your family were fathered by three different men. Your mother was six weeks' pregnant when she met your stepfather, Will Gibney.[8] You and your three siblings were raised by your mother and this man.
[8] A pseudonym.
46Although your biological parents are Aboriginal, your mother was never connected to Aboriginal culture which meant you lacked any connection as a child. This is something you have tried to rectify in your adult life. You had no relationship with your biological father, and he passed away in around 2010 and so any chance of establishing a bond is now forever lost.
47Your stepfather, Will Gibney, subjected you to verbal, physical and sexual abuse. He would flog you with a cord and hit you with an open hand, very often in front of your mother who said nothing and did nothing to protect you. At the age of four you were made a ward of the State.
48Will Gibney was charged with sexual abuse of your three siblings. He pleaded guilty to charges of sexually abusing your older brother, and the charges in relation to your sisters were ultimately withdrawn. It would seem your mother did not believe her children, despite witnessing some incidents involving your sisters and Will Gibney first-hand and despite him being incarcerated for abuse of your brother and other child victims. It seems that your mother was hopelessly dependent on Will Gibney, and he was able to persuade her that no abuse had occurred. Your repeated reports of serious sexual abuse involving penetration, to your mother and the authorities, fell on deaf ears. No action was taken to remove you from their care or to prosecute Will Gibney. Your mother did not believe you and she was often unstable, verbally and physically abusive to you and emotionally neglectful. Your mother was unable to protect you, and you were rejected by services, left to survive as best you could unsupported and alone.
49In both the child protection material tendered on your plea and the Forensicare report obtained by the court there is suggestion that you had also been sexually abused by one or both of your female siblings.
50These circumstances, not surprisingly, caused your family to effectively disintegrate. Your sisters and brother, who had also been under the care of child protection services, all left home when they were in their adolescence. You were effectively raised as an only child, and you had very little, if any, contact with your siblings and you were left with your mother and your abuser Will Gibney. Your relationship with your siblings has remained ambivalent throughout your life.
51Your family moved as many as 17 to 18 times around Victoria and New South Wales during your childhood. You lived in Warrnambool, Mortlake, Cobden, Panmure, Leeton and many other country towns. Child protection material indicates that at around the age of 10 you moved to Leeton with your mother and Will Gibney. It was around this time that your wardship was discharged as you were no longer in the jurisdiction. The abuse and your troubles continued. You gravitated towards a negative peer set and began smoking cannabis, drinking alcohol to excess and acting out.
52You attended multiple schools before leaving after Year 8. The frequent family moves resulted in significant instability. You were unable to make many pro-social friends at school. You struggled academically being unable to concentrate in class and you received no assistance or support with your homework.
53After leaving school you completed Automotive Certificates at TAFE as well as undertaking a landscaping course. You have worked in a variety of jobs including for a car-wrecker, at an abattoir, in hospitality, labouring and fruit picking. You have generally had semi-skilled or unskilled positions.
54During your later teenage years from the age of 16 through until you were 21 years, you regularly offended. You have dated prior convictions for wilful exposure and prior convictions for offences such as burglary, theft, theft of motor vehicle, robbery and assault, amongst others. You were sentenced to youth training, community- based orders and imprisonment. Save for a conviction for failing to attend family violence counselling in August 2007, you have not offended since 2002. Your past offending seems to have been driven by your childhood deprivation and your abuse of alcohol, cannabis, amphetamine, your marginalisation, instability, lack of pro-social supports and your negative peer associations.
55You have had several intimate relationships in your life. Initially you found it difficult to form such relationships. You have a total of six children. The oldest of these children are twins from an intimate relationship in early adulthood. You have had no contact with your twin daughters for many years now. Your most significant relationship lasted for nine years and was with Gabriella Margarot who is the mother of your four daughters, three of whom are your victims in the offending before the court.
56When you first met Ms Margarot you were offending, however, your commitment to this relationship assisted you to desist and move away from criminal behaviour, criminal peers and drug abuse. You had a period of stability during your relationship with Gabriella Margarot where you were able to maintain stable employment. You lived in Wagga Wagga, Ballarat and South Australia. Your relationship deteriorated whilst you were in South Australia and Ms Margarot moved to Victoria with the children and without you.
57In around 2011 you rejoined the family in Victoria and in 2012 Ms Margarot left the relationship in the midst of her own mental health and substance use issues. It was at this time that you became the sole carer for your daughters. You worked some 'cash in hand' jobs but otherwise received financial assistance from Centrelink and were a sole parent to your children. It appears over the years you have had very little support in caring for your family and at times you struggled.
Bugmy principles
58Your counsel, Mr Bhattacharya, submitted in the circumstances of your case and in light of the evidence contained in the child protection materials, the reports of Jeffrey Cummins and Professor Michael Daffern the principles outlined in the case of Bugmy[9] were enlivened.
[9] Bugmy v The Queen [2013] HCA 37
59In making an assessment of your moral culpability or degree of blameworthiness to be attached to your offending for your offending conduct, it is necessary to closely examine your personal circumstances and background and explore factors which may explain the offending conduct. To the extent that the offending conduct is due to factors beyond your control, the harshness of the moral judgement is likely to be moderated.[10]
[10] R v Hermann [2021] VSCA 160 at [14].
60An examination of your personal history reveals that you suffered significant childhood neglect and deprivation as a result of the following factors: your wardship to the State from the ages of four until 10 years; the involvement of child protection in your upbringing; your isolation from your biological father and your aboriginal culture; your early and repeated exposure to violence, both physical and sexual, at the hands of your stepfather; the lack of belief of your mother and the authorities when you complained; the lack of protection by your mother; your exposure to dysfunction within your family as a result of the sexual abuse of your siblings; your emotional neglect and the instability experienced as a result of your transient family life.
61Further, I accept the opinions of Professor Daffern as follows:
'Concerning the 'nexus between the accused’s childhood deprivation and abuse and the offending before the court', it is difficult to formulate the relationship precisely because of Mr. [Gibney’s] unwillingness to acknowledge and talk openly about his sexual offending. There are multiple and various ways Mr. [Gibney’s] experience of sexual and physical abuse, emotional abuse and neglect may have impacted his psychological, social and sexual development throughout childhood, adolescence and early adulthood, and ultimately his criminal behaviour and index offending.
In childhood and early adolescence, the abuse and other mistreatments would likely have impacted the way Mr. [Gibney] understood family relationships and the behaviour of other people more generally. Abuse and mistreatment would have generated fear, distress, mistrust and a sense of betrayal. These factors would have influenced his capacity to form and maintain relationships at home, in social situations and at school. This, combined with multiple moves and difficulties concentrating (the origins of which are unclear but potentially due to the experience of sexual abuse) would have made application to schoolwork very difficult. Opportunities to learn to develop peer relationships in the school environment were compromised by his personal concerns and unstable living situation. This would have negatively impacted his capacity to develop and maintain appropriate peer and intimate relationships. Sexual abuse would also have negatively impacted his emotional development. In adulthood he has had problems regulating his emotions and behaviour whilst emotionally aroused. He has a long history of interpersonal violence; this could have been impacted by learning that violence is acceptable and/or failing to learn to soothe his own uncomfortable emotions or develop strategies to adequately manage emotional arousal.
Socially, the lack of care and support at home may have contributed to his gravitation toward antisocial peers, and consequently to exposure to drug and alcohol use. Mr. [Gibney] reported that drug and alcohol use helped him cope with unpleasant feelings associated with abuse and neglect. Intoxication became a pleasurable distraction from his own emotional torment.
Relationally, the grooming by his stepfather, the sense of betrayal he felt having been abused by his stepfather and neglected by his mother, and the manipulation he described concerning his mother’s discouragement of his relationship with his biological father would have contributed to problematic thoughts about relating to other people, thereby undermining his capacity to form and maintain relationships.
Mr. [Gibney’s] sexual development has also been affected by his abuse. Sexual abuse in adolescence can negatively impact a victim’s sense of sexual identity and functioning. Although Mr. [Gibney] said he has not experienced sexual dysfunction, he did note a reliance on pornography to help masturbation. Victimisation may also have resulted in distorted beliefs about the legitimacy of forced sex and potentially disturbed associations between unpleasant emotions and sexual arousal.'
62I am mindful that the opinions of Professor Daffern are made in the context of your repeated denials of sexual offending, and in that sense they are general observations of how your experience of childhood sexual abuse may have impacted you in later life and have a nexus to your offending behaviour. However, in my view these opinions need to be interpreted in light of what has repeatedly been stated in the Court of Appeal, that is, there is a presumption of harm that the sexual abuse of children will cause long-term physical and psychological harm.
63Your counsel submitted that both limbs of Bugmy have application in your case, that is, Bugmy is enlivened in both a general and specific way.
64Although Mr Cordy on behalf of the prosecution conceded that Bugmy was enlivened in a general sense, he submitted that the evidence did not establish a sufficient nexus between the deprivation and the offending to enliven a specific link. Mr Cordy submitted that despite your upbringing, you went on to lead a productive life in the community, were able to care for your children and you were capable of concealing your offending by a facade of respectability.
65Further, Mr Cordy submitted that you had full knowledge and understanding of the impacts of sexual offending on children, which in effect increases your moral culpability. Mr Cordy submitted that the observations made by Professor Daffern are only possibilities and do not provide a sufficient basis to proceed with a reduction of moral culpability.
66In response Mr Bhattacharya submitted that the intention of Bugmy is to explain the significant and lasting effects of childhood trauma and deprivation on offenders. Mr Bhattacharya conceded your offending was highly serious but submitted your moral culpability could be mitigated by your personal circumstances and the significant and profound deprivation you endured as a child.
67In my view both limbs of Bugmy have application in your case, that is, the more general expression that: [11]
'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
[11] Bugmy v The Queen [2013] HCA 37 at [40].
68And the more specific expression that: [12]
'An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability or the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'
[12] Ibid at [44].
69Regarding any nexus between your experience of significant childhood deprivation and the current offending, I am satisfied that a nexus exists based on the evidence of Professor Daffern seen in the context of what the courts now know about the ongoing and devastating impacts upon survivors of childhood sexual abuse. I should also say that I am satisfied on balance given what I understand to be your childhood from the child protection materials that I have received,
70Further, I consider the following observation of the High Court has relevance in your case, that is:[13]
'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.'
[13] Ibid at [43]-[44].
71As a consequence of my findings pursuant to the principles in Bugmy, I find that your moral culpability should be reduced. I also consider protection of the community to be an important sentencing consideration in your case and it will be important for you to undertake programs in custody and be subject to supervision upon your ultimate release into the community.
Remorse
72Your counsel submitted on your behalf that there is an indication of remorse regarding the offences of physical violence. The report from Mr Cummins indicates that you understand that you have anger management issues that you will seek to address whilst you are in custody. Further, in Mr Cummins’ report he opined that you expressed guilt and remorse for physically and verbally abusing your daughters.
73In my view these expressions of remorse are in contrast to your record of interview and your viva voce evidence at your first trial. You denied all offending. You continue to deny that any of the sexual offending occurred. You will not be punished for your continuing denials, likewise, you are not to be punished for your plea of not guilty. However, you do not receive a discount for a plea of guilty and I do not consider that you have demonstrated any real or genuine remorse.
74Mr Bhattacharya submitted that you have instructed you realise you will be in gaol for a long time and most likely will not see three of your daughters again. This loss of relationship is something that I do take into account in the sentencing synthesis.
Delay
75Mr Bhattacharya submitted that there has been significant delay in your matter which can be taken into account by the court. There are generally two limbs to delay as a mitigating factor. The first concerns the unfairness brought about by the impact of charges hanging over an offender's head and the second concerns any progress made towards rehabilitation.
76I accept that the first limb has application in your case. Your matter has involved lengthy court proceedings and waiting times. You were committed for trial on 15 September 2021 and the special hearings of the victims did not take place until May and June 2022. Despite being listed for trial in the March 2023 Bendigo circuit, your case was not reached and so was adjourned for a trial before me in August 2023. As outlined, the jury were hung on some charges, so the trial was relisted and commenced on 16 May 2024 on the second indictment containing exclusively sexual offending.
77It has now been over four years since your arrest, and you have been through two trials start to finish and you have had four juries empanelled in your matter. I accept that this has no doubt been an incredibly stressful period for you.
78Your counsel submitted that you spent much of your time on remand between your arrest and bail subject to COVID conditions within custody. You also had medical issues affecting you during this period of remand that you could not receive adequate care for in custody. I accept that you have continued to have significant health issues now on your return to custody, these include asthma, diabetes and neck and jaw problems related to a car accident. These health concerns mean that your time in custody is more onerous than for someone without those same issues.
79I take into account that imprisonment generally during the pandemic was more onerous. You experienced this firsthand being subject to quarantine, lockdowns and other restrictions. I accept that you experienced significant restrictions on courses and other privileges. I also accept that there would have been significant worry in being confined during a time where COVID-19 was a serious health threat in our community. This specifically relates to your first period of remand of 526 days.
Category offending
80Pursuant to s3 of the Sentencing Act[14], the charges of sexual penetration of a child or lineal descendant are Category 1 offences. Accordingly, the court must impose a custodial sentence.
[14] Sentencing Act 1991 (Vic) s 3.
81Charges 1, 2 and 3 on Indictment M10491265.C pre-date the Category 1 sentencing regime and this requirement does not apply to these charges.
Standard Sentencing
82The charge of sexual penetration of a lineal descendant where the victim is under 18 is a standard offence. This relates to Charges 5 to 10 and Charges 11 and 12 on the second indictment. The standard sentence is 10 years imprisonment. In addition, the charge of sexual assault of a child under 16 is also a standard sentence offence. The standard sentence for this offending is four years imprisonment. The standard sentence only takes into account the objective factors affecting the relative seriousness of the applicable offence. Standard sentences are to be considered as legislative guideposts in the sentencing process.
83In considering the impact of standard sentencing in your case, I have considered the decision of Brown v R.[15] In particular, when sentencing for a standard offence, I must take the standard sentence into account as one of the factors relevant to sentencing. The standard sentence is not to be viewed as a starting point, and it does not affect the established instinctive synthesis approach to sentencing. It does not require or permit two-stage sentencing and does not otherwise affect the matters which I may or must take into account in sentencing. Accordingly, I have taken the standard sentence of 10 years and four years into account as one of the factors to consider in my instinctive synthesis of all relevant factors and will reflect this in the sentence I impose.
[15] Brown v R [2019] 59 VR 462.
84Further, so far as consideration of current sentencing practices are concerned, s5B(2)(b) of the Sentencing Act requires a Court,[16] when considering current sentencing practices for a standard sentence offence, to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme.
[16] Sentencing Act 1991 (Vic) s 5B(2)(b).
85The prosecution referred to the cases of Weir, Murphy, and Henderson as being examples of cases involving standard sentences for offences under s50C of the Crimes Act[17], sexual penetration of a child or lineal descendant. While no cases are comparable on all fours, they are a helpful yardstick to gauge the sentencing landscape for offending of this type.
[17] Crimes Act 1958 (Vic) s 50C.
86In sentencing you I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.[18] I have had regard to the current sentencing practices, as I have said, for standard sentence offending, particularly in relation to charges of sexual penetration of a lineal descendent and sexual assault of a child under 16. I have considered the standard sentencing statistics for this offence, and I note the limitations with statistics in general, however, I have considered them to have some utility in arriving at my ultimate disposition. Further, I have considered several recent decisions of this court and the Court of Appeal dealing with sexual penetration of a lineal descendent and offending of this nature.
[18] Ibid s 5.
Sentencing principles
87I consider that the relevant sentencing principles that must be applied in your case are general and specific deterrence and just punishment. As indicated, I intend to moderate the application of general and specific deterrence in light of my findings of reduced moral culpability pursuant to the principles in Bugmy. I do consider protection of the community to be a relevant sentencing consideration in light of Mr Cummins' assessment of you as a moderate to high risk of further sexual offending.
88In addition, your offending must be denounced by the court, and I do so in the strongest possible terms.
89Given the high number of charges involved in your case, I have carefully considered the application of the principle of totality. I must ensure that the total effective sentence is just and proportionate to the overall criminality involved. As the higher courts have stated:
'Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender's overall conduct, the sentence is then proportionate to the offender's criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.'[19]
[19] Azzopardi, Baltatzis & Gabriel v The Queen [2011] VSCA 372; as also cited Veen v The Queen [No 2] (1987-8) 164 CLR 465,472.
90I consider that your offending forms part of a series of offences, some of which occurred within the same incident of offending. I have allowed for this circumstance through the amount of cumulation imposed.
91Further, I take into account the principles of parsimony and proportionality. This requires I do no more than is necessary to punish you for your offending.
92So, Mr Gibney, I have carefully weighed all relevant matters in your case including the nature and gravity of your offending, the victim impact, your lack of recent or relevant prior history, your general background circumstances, my findings pursuant to Bugmy and the delay. Weighing these matters as best I can, I intend to sentence you as follows:
93You are convicted of each of the charges.
94Firstly, in relation to trial No.1, which was Indictment M10491265.A, in relation to Charge 5, common assault of Sara, you are sentenced to four months imprisonment.
95In relation to Charge 6, again common assault of Sara, you are sentenced to six months imprisonment.
96On Charge 11, common assault of Sara, you are sentenced to three months' imprisonment.
97In relation to Charge 15, common assault of Phoebe, you are sentenced to three months imprisonment.
98In relation to Charge 19, common assault of Sara, you are sentenced to four months' imprisonment.
99In relation to Charge 20, common assault of Phoebe, you are sentenced to three months imprisonment.
100In relation to Charge 21 which is the threat to kill Phoebe, you are sentenced to eight months' imprisonment.
101In relation to Charge 24, common assault of Lily, you are sentenced to three months' imprisonment.
102In relation to Charge 25, common assault of Lily, you are sentenced to three months' imprisonment.
103In relation to that indictment Charge 21 is the base sentence, that is eight months' imprisonment.
104I cumulate one month in relation to Charge 5, two months in relation to Charge 6, one month in relation to Charge 11, one month in relation to Charge 15, one month in relation to Charge 19 and one month in relation to Charge 24.
105On my calculation the total effective sentence in relation to that indictment is 15 months imprisonment.
106In relation to Indictment for Trial 2 which was M10491265.C, in relation to Charge 1, indecent act with Sara, you are sentenced to 12 months' imprisonment.
107In relation to Charge 2, indecent act with Sara, you are sentenced to 12 months imprisonment.
108In relation to Charge 3 of incest with Sara, you are sentenced to six years imprisonment.
109In relation to Charge 4, sexual assault of a child under 16, again with Sara, you are sentenced to 16 months imprisonment.
110In relation to Charge 5, sexual penetration of a child or lineal descendent, again with Sara, you are sentenced to seven years imprisonment.
111In relation to Charge 6 which again is a sexual penetration charge with Sara, you are sentenced to eight years imprisonment.
112In relation to Charge 7 of sexual penetration, again in relation to Sara, you are sentenced to eight years imprisonment.
113In relation to Charge 8, sexual penetration involving Phoebe, you are sentenced to nine years imprisonment.
114In relation to Charge 9, sexual penetration again involving Phoebe, you are sentenced to eight years imprisonment.
115In relation to Charge 10, again involving Phoebe, you are sentenced to eight years imprisonment.
116In relation to Charge 11, which is a sexual assault under 16, you are sentenced to 16 months imprisonment.
117In relation to Charge 12, which is a sexual penetration charge again involving Phoebe, you are sentenced to seven years imprisonment.
118And in relation to Charge 13, sexual penetration of a child or a lineal descendent, again in relation to Phoebe, you are sentenced to nine years imprisonment.
119Now, in relation to the cumulation. So, Charge 8, nine years imprisonment, is the base sentence. So, one month in relation to Charge 1 will be cumulative, one month in relation to Charge 2 will be cumulative, nine months in relation to Charge 3 is cumulative, four months in relation to Charge 4 is cumulative, nine months in relation to Charge 5 is cumulative, 12 months in relation to Charge 6 is cumulative, 12 months in relation to Charge 7 is cumulative, 12 months in relation to Charge 9 is cumulative, 12 months in relation to Charge 10 is cumulative, seven months in relation to Charge 11 is cumulative, nine months in relation to Charge 12 is cumulative and 14 months in relation to Charge 13 is cumulative.
120Now my calculation is that that is a total of 17 years and six months in relation to that indictment.
121So, I propose to order that six months in relation to the first indictment is cumulative on the second, and on my calculation that would be a global total effective sentence of 18 years.
122I now turn to the issue of parole. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve having regard to all of the circumstances.
123I order that you serve a period of 10 years and nine months' imprisonment before becoming eligible for parole. So, this is 60 per cent of the head sentence that I have imposed. In setting the minimum term I have taken into account all of the matters raised during the plea, and I consider a longer period of supervision in the community is the best way to achieve community protection in the long term.
Serious sexual offender
124The entirety of the charges of which you have been found guilty on Indictment M10491265.C fall within the meaning of 'sexual offences' found in s6B(1) of the Sentencing Act, and upon sentencing you to imprisonment on Charges 1 and 2 your status changes to one of a serious sexual offender. This means that community protection becomes the predominant sentencing purpose.
125Pursuant to s6F of the Sentencing Act 1991, I cause to be entered into the records that for Charges 3 to 13 you were sentenced as a serious sexual offender.[20] I note s6E applies and that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence of imprisonment imposed on that offender, whether before or at the same time as that term.[21] That section must, however, give way to some extent to the principle of totality. The prosecutor Mr Cordy on behalf of the crown did not seek a disproportionate sentence.
[20] Sentencing Act 1991 (Vic) s 6F.
[21] Ibid s 6E.
Sex Offender Registration Act
126Pursuant to s11 of the Sex Offender RegistrationAct 2004, I declare that you are a registrable offender as you have been found guilty of nine Class 1 offences and four Class 2 offences. Pursuant to s34 of the Sex Offender Registration Act 2004 you are required to report for life.
127Now, lastly, in relation to the 888 days of pre-sentence detention, I have taken that into account as pre-sentence detention and that will be reckoned as time already served and will be deducted from your sentence.
128I understand that Lily, Sara and Phoebe are online. I hope they can move on from here.
129We will adjourn the court.
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