Director of Public Prosecutions v Gold (a pseudonym)
[2022] VCC 1434
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSIE GOLD[1] (a pseudonym) |
[1] To ensure that there is no possibility of identification of the victim, this judgment has been anonymised by the adoption of pseudonyms.
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF PLEA: | 1 August 2022 |
| DATE OF SENTENCE: | 19 August 2022 |
| CASE MAY BE CITED AS: | DPP v Gold (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1434 |
REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW
Catchwords: Guilty plea – Six charges of sexual penetration with a person aged between 10 and 16 – Three charges of indecent assault of a person under 16 – Gross indecency – Relevant criminal history – Delay – Ill health and advancing age of offender
Legislation Cited: Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980; Sentencing Act 1991
Cases Cited:Fichtner v The Queen [2018] VCC 669; Boucher v The Queen [2021] VCC 1165; Worboyes v The Queen [2021] VSCA 169
Sentence:7 years and 4 months with a non-parole period of 4 years and 6 months
Section 6AAA: 10 years imprisonment with a non-parole period of 7 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | J Piggott (plea) M Rezsneki (sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | C Pearson | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Jessie Gold[2], you pleaded guilty on Indictment J13191247.1 to six charges of sexual penetration with a person aged between 10 and 16, for which the maximum penalty is 10 years' imprisonment; three charges of indecent assault of a person under the age of 16, for which the maximum penalty is five years' imprisonment; and one charge of gross indecency, for which the maximum penalty is two years' imprisonment.
[2] A pseudonym
2You were born in July 1965. Broadly, you were aged between 21 and 26 at the time of the offending. The victim in this matter was born in October 1976 and was between the ages of 10 and 15 during the period of offending.
3The victim's mother separated from his father in 1985. The victim’s mother married your older brother. He had two sons who lived primarily with their mother.
4In 1985 the victim's family moved to Geelong. In the next five to six years the family changed addresses several times. During this period you often stayed with the victim's family. The offending in this case mainly occurred at the family home in Greenvale and later at Gladstone Park. In 1986 the family moved to Greenvale. You stayed with them, and you shared a room with the victim.
The offending
5Charge 1 is a rolled-up charge of sexual penetration with a child under the age of 16 relating to two occasions.
6One night in Greenvale between the specified dates in October to December 1986 you got into the victim's bed. He was 10 years old. You pulled his pants down below his hips. He pretended to be asleep. You told him you just wanted a hug. You took your underwear off but kept your shirt on. You rested your penis on his bottom, and you masturbated for penis for three to four minutes. You then rolled the victim onto his back and performed oral sex on him for about 20 seconds. He pretended to wake up and asked you what you were doing, and you replied, 'Nothing, just go back to sleep, just keep this our little secret'. This is part of Charge 1, the rolled-up charge of sexual penetration.
7On another occasion, in the same period as Charge 1, you were staying the night at the family home in the victim's room. The victim woke up to find you in bed with him trying to pull his pants down. You were lying behind him and you had your pants down. You spat on your hand before putting saliva on his anus. You told him to just relax and that you were not going to hurt him. You then attempted to put your penis in his anus. This hurt the victim and he made a noise from the pain. You said 'Shhh'. You were only able to insert the head of your penis into the victim's anus and you appeared annoyed by this. He felt a burning sensation in his anus for the next couple of days. This is the basis of Charge 2, sexual penetration.
8On another night you were sleeping in the same bedroom. The victim woke up when you were nearly next to his bed. You were masturbating his penis. You performed oral sex on the victim by putting his penis in your mouth. This is the second occasion relating to Charge 1. On this occasion the victim ejaculated; the first time that that had happened.
9By September 1989 the victim and his family had moved to a rental property in Gladstone Park. You had said to the victim that if he told anybody about what you had done to him he would not be believed, and if he complained he might have no father again, and that if you did not get it from him you would get it from others. He understood this to be a reference to his siblings.
10On 30 September 1989, the day of the AFL grand final that year, you were at the victim’s house watching the grand final and drinking with your brother.
11You became intoxicated. You said to the victim that you were going to suck him that night, and that he would have to shower. That night you were sleeping in the same room as the victim. When you went into the room you proceeded straight over to his bed. You shook him and woke him up. You pulled down his pants and started to masturbate him. You then masturbated yourself; you ejaculated onto his stomach. He recalls hearing people walking down the hallway while this was happening. He was terrified someone would come in and he would be in trouble. This conduct is the basis of Charge 3, indecent assault of a person under the age of 16. He was 12 years old.
12On New Year's Eve 1989, the victim and his family went to a fancy dress party and you went with them. That night, back at home after the party, the victim went to bed and fell asleep. He woke up later to find you getting into bed with him. You rolled him onto his back and rubbed your penis against his leg. You asked the victim to give you oral sex, he said no. You moved him onto his side, pulled down his pants, and put your penis into his anus. You penetrated his anus to the distance of about one inch. This continued until you ejaculated. You then went back to your own bed. This is the basis of Charge 4, sexual penetration. The victim was 13 years old.
13In 1990 the victim received a bad mid-year report at school. Your brother banned him from playing football. One weekend his family was away and you were looking after him. You were playing pornographic movies in the lounge room. Both of you were on the couch. You got off the couch, knelt in front of the victim, took off his shorts and performed oral sex on him. This is part of Charge 5, a rolled-up charge of sexual penetration.
14Over the same weekend, when the victim was lying on his stomach watching pornography wearing only a T-shirt, you knelt over him and rubbed your erect penis over his buttocks. During the weekend you also gave the victim a massage and removed his clothes. You were not wearing any pants. You rubbed saliva on his anus. You then tried to insert your penis into his anus. He squeezed his buttocks together to prevent this. You forced his legs open and digitally penetrated his anus for four to five minutes. That digital penetration is part of the context of Charge 5. This caused him pain. You told him to relax. You then penetrated his anus with your penis. You were only able to insert your penis a small way into his anus. This is the second part of Charge 5, a rolled-up charge of sexual penetration. You rubbed your penis next to his buttocks and ejaculated next to his anus. The victim recalls that over that weekend there were instances of mutual masturbation. There were also multiple episodes of oral sex.
15On Grand Final Day 1990, which was 6 October, the victim's family had friends over to watch the game. You were there. The victim went to bed at about 10.00pm. Later you came into his room and pulled down his pants and masturbated his penis. This is the basis of Charge 6, indecent assault.
16You then performed oral sex on the victim which is part of Charge 7, sexual penetration. You then walked out of the room. You returned three or four hours later and got into bed with the victim. You rolled him onto his back and performed oral sex on him. This is also part of Charge 7.
17You then grabbed the victim's head and forced him to perform oral sex on you for about 30 seconds. He was gagging and resisting. This is the basis of Charge 8, sexual penetration. You then stopped and masturbated until you ejaculated onto his stomach. You scooped the semen off his stomach and wiped it onto his mouth, making him taste the semen. The victim's mother knocked on the door. You told the victim to be quiet and then you went back to your own bed.
18During Christmas holidays in 1990 you drove the victim to your parents' house in Sebastopol. When you arrived there it was night-time and there was no one in the house. You took the victim into your bedroom. You provided him with comic books and pornographic magazines. You left and then returned. When you did, you pulled down the victim's pants and masturbated his penis. This is the basis of Charge 9, indecent assault.
19You then produced a blow-up sex doll and told the victim that he needed to practice because he had never been with a woman before. You told him that you knew a woman who wanted to have a threesome. You then watched as the victim penetrated the doll until he ejaculated. This is the basis of Charge 10, gross indecency. You congratulated the victim. He was 14 years old when this happened.
20The victim’s mother made a statement to police and confirmed some of the surrounding circumstances that the victim had described in his statements to police. She said that when the victim was in high school his school work deteriorated and he became rebellious and disruptive. At times he stayed away from home.
21She searched his bedroom trying to find clues as to what was wrong with him. She found a notebook hidden in his wardrobe. He had made notes suggesting something had been going on that should not have been. She thought of you, because there had been arguing between you and the victim, and he had started becoming agitated when you were around. The day she found the notebook she asked the victim what it meant. He said it related to you. He told her that you had been doing things to him that you should not be doing, and that you would bribe and threaten him. She told him it was not his fault, and that he was only a child.
22The next time she and your brother saw you, they confronted you. You admitted you had been interfering with the victim. They told you to leave the house and never return and never go near the children again. You have had no contact with your brother since that night.
23The victim reported the matter to the police on 3 August 2016. He made four statements. He said there were other incidents of sexual abuse in addition to the charged acts, but he could not give specific details. He said there were around 30 incidents of oral sex which occurred in Greenvale. The prosecution relies on these matters as providing context to the charged acts, and in the summary that I have provided there is also the contextual uncharged material.
24You were interviewed by police in September 2017. You denied ever intentionally sexually touching the victim. The circumstances of your offending were fully summarised in the Prosecution Opening which was read out in open court, tendered as an exhibit, and I have had regard to all of the contents of that document.
Victim impact
25Two victim impact statements were tendered on the plea from the victim and his mother.
26The victim described the multifaceted and enduring consequences of your behaviour towards him during his formative years. He says your offending disrupted his education and he was not able to finish Year 12. He says that he was excellent at sport as an adolescent and he had the opportunity to train with North Melbourne when he was an under-16, but he was not allowed to due to his performance at school being unsatisfactory. He believes that was a result of your abuse.
27He describes a period of homelessness when he was in his mid-teens, and then eventually being sent to live with his grandmother in Ballarat as his immediate family could not deal with him. He was therefore deprived of close contact with his sister, brother and his mother. He describes a period of drinking heavily including binge-drinking on the weekends.
28He says that your abuse has affected his ability to sustain friendships and sustain romantic relationships with women. Furthermore, he feels uncomfortable around young males and attributes the breakdown of his marriage to the fact that his wife had a son of her own around whom he always felt awkward.
29He summarised in point form the wide-ranging and enduring impact of your offending which has plainly been very substantial.
30The victim's mother also made a victim impact statement in which she describes the emotional toll your offending has taken on her, and the disruption to the wider family. She feels guilty and blames herself for what you did. She believes that your behaviour and the impact on her son contributed to the breakup of her marriage. She says that what your behaviour did to the victim is always on her mind.
31It is no exaggeration to observe that you have profoundly damaged the victim and altered the course of his life. In so many areas, his life has not been what he might have hoped of because of the psychological harm you inflicted on him. The impact of your behaviour has been very substantial and enduring and is a significant matter in sentencing in this case.
Personal circumstances
32I turn now to your personal circumstances, which are set out in the defence submissions and in the psychological report of Simon Candlish.
33You are now 57 years of age. You were born and grew up in Melbourne. Your father who is now deceased was a truck driver. Your mother worked at a milk bar and was also a cook. She is now 89 and is in poor health. She lives with you in Ballarat, and you have been her full-time carer for the last six years. You have always had a close relationship with her.
34You are the youngest of five children. You have one brother and three sisters. You have no contact with your brother but maintain a relationship with your sisters who live in Sunbury and in or around Ballarat. You reported that your brother, who is 11 years older than you, sexually abused you and your sisters during your childhood. This may be so but the material before me is very limited in respect of this matter. The psychological report deals with an episode about which you have little recall and is said to have occurred when you were aged five or six. You say in the report you hold no grudge against your brother, and to do so would upset your mother. The material about this matter is insufficient for me to allocate any real weight to it as a sentencing factor other than as part of your background. It is difficult to make a finding about the occurrence of that event. Mr Pearson accepted in his further submissions sent by email and in his oral submissions this morning, that this plays no significant part in sentencing in this matter.
35You did not have a good relationship with your father during your childhood; he was rarely home, away working as a truck driver.
36You completed Year 11 at school. You went to three primary schools and one secondary school. You were apparently disruptive in class and had academic issues. You describe being bullied from around Grade 2. You report that you were diagnosed with Attention Deficit Hyperactivity Disorder and explosive disorder.
37Your first job was at a meatworks factory where you worked for 12 months. You have worked as a truck driver and you have been employed by many different companies. Your longest period of employment seems to have been for about two and a half years at a hardware store. You told Mr Candlish that you were fired from your employment on several occasions because you could not cope with authority and you would lose your temper. Problems with your temper are referred to a number of times in the psychological material.
38You have had a significant period of unemployment where you could not be bothered working. You then became eligible for a disability support pension around 10 years ago because of your health issues.
39You have been living in private rental for some nine years and your mother moved in to live with you some six years ago; that is when you became her full-time carer.
40In the past you have had problems with alcohol. You were a binge drinker. You say you started to consume alcohol heavily while living at your brother's house from the age of 21, and you described drinking several times a week. This abuse of alcohol corresponds with the offending period. Between the ages of 21 and into your thirties you were also a cannabis user and report using amphetamines. In recent years you have rarely consumed alcohol.
41You have a variety of health problems. Mr Pearson tendered your health records and provided a helpful summary of those conditions which he drafted. Your health conditions include that you have Type 2 diabetes, heart disease and vascular disease. You had a triple-bypass in your 40s, you had a stroke in 2019, you were born with one kidney, and you have been diagnosed with kidney failure and you will require dialysis at some stage. You have cataracts, retinopathy, which is a disease of the retina, and you also suffer from hypertension.
42Mr Pearson fully detailed your health conditions this morning in submissions, and I take all of those matters into account. I am told you take warfarin and other medications for your health conditions, also set out in the material. The documents tendered establish these conditions and their seriousness. I will return to the relevance of your health as a mitigating factor.
43You also suffer from depression. You told Mr Candlish that you attempted suicide about eight years ago. In the material tendered it is evident that you have been suffering anxiety in anticipation of these court proceedings.
Gravity
44Your sexual abuse of the victim in this case was very serious. It started when he was still very young and continued through the formative years of his early adolescence.
45At the time of the first two charges he had just turned 10 years old. He was an innocent child, and you took that away from him. As the Court of Appeal said in the case of Fichtner v The Queen [2018] VCC 669, offending such as yours violates the most basic norms of civilised behaviour, and the value which our society places on the lives and wellbeing of each of the young.[3] The irreparable harm the law presumes from such offending is plain to see in the life of the victim since the offending.
[3] At paragraph 67.
46The charged offences themselves establish ongoing sexual abuse over years. The Prosecution Opening refers to sexual abuse outside of the charged acts. You are not to be punished for these other matters, but it cannot be said that the charged acts, numerous enough, were isolated.
47You used threats and manipulation to secure his silence.
48Most of the offending occurred in the victim's bedroom where he was entitled to feel safe.
49The anal penetration offending covered by Charge 5 occurred against his active physical resistance. In the leadup he had clenched his buttocks together to prevent penetration, and you forced his legs open and digitally penetrated his anus (which is part of the context of this charge) before the charged anal penetration incident. The oral sex covered by Charge 8 occurred in circumstances where the victim was gagging and resisting, and before the oral sex incident covered by Charge 4 he said no to you, and you offended anyway. These are aggravating features of those charges.
50Charges 1, 5 and 7 are rolled-up charges incorporating distinct criminal acts brought together in the one charge. Charge 1 involves two oral penetrations on different occasions. Charge 5 involves an oral penetration and an anal penetration taking place during the same incident. Charge 7 relates to two oral penetrations which took place in what, in my opinion, was really one episode or at least two episodes very closely linked in time and circumstance. Charge 8 occurred not long after the second incident covered by Charge 7 but involves significant distinct criminality.
51Your offending was cruel, predatory, brazen and involved an enormous breach of trust. You lived with the victim and his family, and you were trusted to share a bedroom with him. You offended in Charges 5, 9 and 10 when you were alone with him. Once at home when his parents were away, and on other occasions when you took him to your parents' house. You were the adult supposed to be looking after him.
52You used pornography to sexualise the victim, and in my opinion the use of the sex doll in the gross indecency was calculated to further sexualise the victim.
53You were a young man when you started abusing the victim, just 21 years of age. However, as the prosecutor observed on the plea, you were almost double his age at that time. Even at 21 years of age you must have understood how gravely wrong it was to abuse a young child in the way that you did.
54Nonetheless, the fact that you were just 21 years old when the offending commenced is a matter of significance in formulating the sentences in the case and does moderate to a degree the sentences to be imposed and the assessment of your moral culpability. I accept that when the offending commenced you were a naïve and inexperienced young man with respect to sexual matters. But on the other hand the offending spans approximately five years, continuing until you were in your mid-20s. Maturity did not stop you exploiting the victim for sexual gratification. Your moral culpability must be assessed having regard to your age at the time of the offending but given the seriousness and protracted nature of the offending, your culpability is nonetheless substantial. In my opinion you understood the gravity of what you were doing, and that is why you used manipulation and threats to secure the victim's silence. You breached the trust of the victim, his mother and your brother, his stepfather.
55I regard these as serious examples of sexual penetration and indecent act offences. The gross indecency is also a serious example of that offence and is illustrative of your degrading behaviour to the victim, as was your conduct of wiping your semen onto his mouth after the events in Charge 8.
Delay
56The offending in this case took place between 30 to 35 years ago. You were at that time, as I have said, between the ages of 21 and approximately 25 years old. You are now aged 57 with several serious health issues. You look after your mother, who is also infirm.
57The delay is this case is primarily the result of the victim deciding to go to the police in 2016. This is not an unusual situation at all in cases involving sexual offences. Often child victims take many years before they have the strength to go to the police in respect of the abuse they suffered. Therefore, the mitigatory force of the delay in this case is less powerful than it might have been in a case not involving a sexual offence, especially a sexual offence against a child.
58Delay in cases such as this allows the opportunity to assess whether an offender has rehabilitated. In cases where there is substantial delay the fact that an offender has lived a blemish-free life since the offending is a significant matter indicating insight, remorse, and an acceptance of the wrongfulness of the offending, and a proven capacity to address the causal factors of the historical offences.
59Sometimes delay is relevant because the offender has had to live for many years with the anxiety of the potential prosecution. In this case the victim told his mother about your offending in the 1990s and there was a confrontation over it, and you were effectively expelled at that time from the victim's family circle. It is not submitted that in this case you suffered anxiety prior to the victim reporting the matter in 2016.
60Returning to the issue of your rehabilitation and what has happened since the offending in this case, in your case you committed further offences with three young boys in 2016 and received a prison sentence of four months together with a community corrections order. The summaries with respect to that offending were tendered as an exhibit on the plea. The age of the boys in question was between 10 and 12. With respect to that offending you had been drinking with the father of one of the victims. It was a serious situation involving offending against young males.
61You are not to be punished again for the further offending, but the nature of those offences reduces the mitigatory impact of the delay. Considering those offences I cannot be satisfied you have left behind the inclination that led you to offend against the victim in this case, or that you have developed the capacity to resist your desire for sexual gratification with young males.
62However, as Mr Pearson submitted, the further offending is one black mark in 25 years, and I do have the report of Mr Candlish who administered a variety of tests and assesses you as having a low risk of reoffending. You told Mr Candlish you benefitted from the sexual offence treatment program you undertook after the community correction order you received for the 2016 offending. You completed that order without breaching it.
63Mr Pearson submitted your rehabilitative prospects are reasonable. Protective factors include that you are aging - Mr Candlish in his report refers to studies that show a decline in recidivism rates as offenders age - the fact that your poor health is likely to restrict your social interactions with children in the future; that you have support in the community; and you care for your mother; and that you now drink alcohol sparingly if at all. In my view 'reasonable prospects' is a fair assessment, but whatever terminology is used to evaluate your prospects of rehabilitation, you remain a risk to reoffend with young males if presented with the opportunity to do so. This is acknowledged in the report of Mr Candlish who suggests, in his report, you should not have unsupervised contact with children.
Burden of imprisonment
64I accept Mr Pearson's submission that you are a different person now than the 21-year-old who started abusing the victim in 1986. As I said earlier you are now an aging man with serious health issues leaving behind your elderly mother.
65Mr Pearson submitted your health issues will increase the burden of imprisonment for you. He referred to the recent decision of Boucher v The Queen [2021] VCC 1165, where the offender had similar health problems, including a need for dialysis, as I understand it. In that case the sentencing judge, after hearing evidence about the defendant's medical condition, accepted that the burden of the offender's imprisonment would be increased by reason of his medical conditions. In the sentence remarks in that case the sentencing judge said this:
I accept that your health issues will require significant management if you were in custody including as noted, possibly arranging dialysis a number of times per week off site. Further, it is self-evident that the arranging of appointments and treatment in the community are easier to maintain than within the prison environment where you will be entirely dependent on others.[4]
[4] At paragraph 78.
66In that case the point was also made that in a COVID-19 environment, if you have to be moved from the prison for health appointments you will be required to quarantine thereafter.
67It seems to me clear that your health conditions will require significant treatment at some point while you are in prison, for example dialysis - probably sooner rather than later - is inevitable. In my opinion for this reason your health issues are likely to increase the burden of your imprisonment, and I take this into account as a mitigating and moderating factor.
68I also accept that one effect of the delay in this case combined with your health issues, is that any sentence I impose will occupy a greater proportion of the rest of your life as it would for a person without your conditions. As a matter of common sense the life expectancy of someone with your health problems is reduced. The prosecution accepted this in submissions this morning.
69Mr Pearson submitted that your health conditions should serve to moderate the head sentence and the minimum term and are also relevant to the ratio of the minimum term to the head sentence. I accept this submission.
70I accept that the burden of your imprisonment will be increased by the restrictions in place in the prison system in response to the pandemic.
71I also accept that it is entirely possible that your mother may die while you are in prison given her age and health, and furthermore that in sentencing you to imprisonment I am depriving her of her carer. It was not submitted that this latter factor arises to exceptional hardship of the third party, but I accept that leaving behind your elderly and unwell mother will significantly increase the burden of your incarceration.
Guilty plea
72You pleaded guilty in this matter in June of this year. You had originally indicated you would plead guilty at the committal in the Magistrate's Court, but you changed your mind when this case was first listed for a plea in the County Court. What followed was a series of adjournments of the trial due to COVID‑19 over a few years. The case was listed for trial this year, but prior to the trial date you negotiated with the prosecution and the matter was resolved.
73I am told and I accept that the plea indictment in this case is different to the original plea indictment and different to the trial indictment. The scope of the charges is reduced from the earlier resolution. You spared the victim the ordeal of giving evidence and having to relive the traumatic events that the charges are based on. You have saved this court the time and the resources involved in a trial.
74The utilitarian value of your plea is significant and heightened in the current circumstances where this court faces a substantial backlog of trials because of the suspension of trials during the pandemic. In the case of Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’) the Court of Appeal said that sentencing discount for a plea in the current environment must be palpable. I apply the principles set out in Worboyes and other authorities.
75I also accept that your guilty plea indicates a willingness to facilitate the course of justice and is indicative of some remorse. It is difficult to gauge the strength of your remorse in circumstances where your plea was not an early one and you did not admit the full extent of your offending in the record of interview. Nonetheless I take into account the indications of remorse to Mr Candlish, and the remorse your guilty plea indicates.
76You must receive a significant sentencing discount for your guilty plea.
Current sentencing practices
77Current sentencing practices are those which apply at the time of sentencing rather than at the time of your offending, although equal justice requires that I should consider sentencing practices at the time of offending, if it is shown that they were materially different.
78The maximum penalties which were in place at the time of these offences are lower than the current maximum penalties for similar offending, and obviously there was no standard sentencing regime in place at that time. That is a recent innovation. Current sentencing practices for recent offences are influenced by these differential factors. The actual terms imposed for contemporary offences that involved a standard sentence and a higher maximum penalty are, in my opinion, of limited utility. Nonetheless, as acknowledged by Mr Pearson in his submissions, the application of current sentencing practices includes not only the actual terms imposed but also the weight and effect given to particular sentencing considerations in the exercise of the sentencing discretion. For example, the impact of sexual offences on the victim is better understood now, and that understanding influences sentencing, but it may not have been a feature of sentences imposed at the time of this offending; also, a greater appreciation of the prevalence of such offending means increased weight is given to general deterrence.
79No comparative cases were brought to my attention by either counsel in this matter. Of course current sentencing practices are one of the many factors I must have regard to in fixing the sentences in this case, but they are not a controlling factor in the imposition of the sentence, simply a guide.
Sentencing principles
80The serious sexual offender provisions of the Sentencing Act apply in respect of Charges 2 to 10 on the indictment because of the sentence of imprisonment imposed in relation to your subsequent offending, and because I will be imposing a prison sentence in relation to Charge 1. Your status as a serious sexual offender for these charges will be noted in the court records. The effect of the serious sexual offender provisions is as follows; protection of the community becomes the principal sentencing factor, and the totality principle is modified by s 6E of the Sentencing Act, in that sentences are to be cumulative unless otherwise ordered. I also have the power to impose a disproportionate sentence, but in this case the prosecution accepted a disproportionate sentence is not required. There is sufficient sentencing scope for you to be sentenced pursuant to the ordinary principles, and proportionality remains a significant sentencing factor.
81With respect to community protection, I have attempted in these remarks to assess your risk of reoffending and I have taken that into account in deciding the weight to be given to community protection in this case.
82The totality principle requires that the overall sentence must be just and proportionate to the total criminality of your offending. I must also seek to avoid a crushing sentence, a principle which falls to be considered in light of your age and ill health. To comply with these principles significant cumulation between the charges is required. In deciding the appropriate periods of cumulation I have taken into account that this offending was a course of conduct against the same victim and I have also had regard to whether the offences were part of the same incident; however it seemed to me that Charge 8, although occurring at the same time as Charge 7, involved significant additional criminality.
83There is tension between the presumption of cumulation under the serious sexual offender provisions and the totality principle that is not easily reconciled. The totality principle must be considered having regard to the presumption of cumulation, but it is not displaced by those provisions and remains important in a case such as this.
84Mr Pearson submitted that given the delay in this case and the other mitigating factors the parsimony principle dictates that a wholly or partially suspended sentence is appropriate. Suspended sentences are available because of when the offences occurred.
85The prosecution submitted that a head sentence with a non-parole is the only appropriate sentence given the gravity of the offences. I agree with that submission. The seriousness of the offending in this case means that the ceiling of three years which applies to suspended sentences is inadequate. The option of supervised also appropriate given the risk of further offending.
86Sentencing considerations of general deterrence, denunciation, just punishment and community protection are all of substantial importance in this case. Specific deterrence, although still relevant, is of less importance because of the factors I have previously outlined. I must also consider your rehabilitation and reintegration into the community. In this matter your rehabilitation must be via a period of supervision on parole.
87The minimum non-parole period is the period justice requires to be served before becoming eligible for parole. Given the time that has passed since the offending, your advancing age and ill-health, and the corresponding reduction in your risk of reoffending, I have decided to allow for a reasonably lengthy period of supervision should you be released by the Parole Board at the end of the minimum term.
Sentence
88I now turn to the sentences in this case.
· Charge 1, which was a rolled-up charge of oral sexual penetration, 2 years and 6 months.
· Charge 2, anal penetration, 2 years and 6 months.
· Charge 3, indecent assault involving masturbation, 14 months.
· Charge 4, anal penetration, 2 years and 6 months.
· Charge 5, which is a rolled-up charge of anal and oral penetration, 3 years. That will be the base sentence.
· Charge 6, indecent assault involving masturbation, 14 months.
· Charge 7, which is a rolled-up oral penetration, 2 years and 6 months. Charge 8, a count of oral sex - this is the charge where the victim described gagging and resisting - 2 years and 9 months.
· Charge 9, indecent assault involving masturbation, 14 months.
· And Charge 10, gross indecency involving the incident with the sex doll, 12 months.
89I will express these in terms of cumulation; it is easier to understand. The base sentence is Charge 3. I order the following periods of cumulation on the base sentence and on each charge. Six months on Charge 1 is cumulative on the base sentence, nine months on Charge 2, three months on Charge 3, nine months on Charge 4, one month on Charge 6, nine months on Charge 7, 10 months on Charge 8, two months on Charge 9, and three months on Charge 10. The intention is to impose a total effective head sentence of 7 years and 4 months.
90I fix a minimum non-parole period in this matter of 4 years and 6 months.
91Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a sentence of 10 years with a minimum of 7 years.
92The pre-sentence detention is 18 days, isn't it, Ms Rezsneki?
93MS REZSNEKI: I think that is correct, Your Honour.
94HIS HONOUR: Eighteen days? He went in on 1 August. We will just check that. I think it is 18. Given the array of Class 1 and other offences in this case the registration reporting period is life, and I will make that order. Those are the orders I will make in this matter.
95MS REZSNEKI: Your Honour, was he imprisoned on 8 August, is that right?
96HIS HONOUR: No, I thought it was the 1st. Was it the 8th?
97MR PEARSON: No, it was the 8th, Your Honour.
98MS REZSNEKI: Yes, it was the 8th.
99MR PEARSON: So it is 11 days.
100HIS HONOUR: I beg your pardon.
101MS REZSNEKI: Which I think it is 11 or 12. Well, we usually count the first day.
102MR PEARSON: Okay, it is 12.
103HIS HONOUR: Yes, count the first day. It is because on this document it has got written 08/01.
104MS REZSNEKI: Well, it is 11 days, Your Honour, because today would be the first day of sentence.
105HIS HONOUR: Yes. Eleven days, right. Ms Rezsneki, as I was reading that you were looking at me like there was a mistake in it.
106MS REZSNEKI: Your Honour, the only thing that I - and I may have missed the first part of what you said, when you said that no one was cross-examined.
107HIS HONOUR: Well, I did not think anyone was. Was that ‑ ‑ ‑
108MS REZSNEKI: The complainant was cross-examined at the committal.
109HIS HONOUR: Was he? I did not know. Sorry, that is a mistake on my part.
110MS REZSNEKI: That was the only thing. Because I was not sure whether you were referring to a trial, and I thought - because I missed that.
111HIS HONOUR: I thought the matter had resolved.
112MS REZSNEKI: No. He gave evidence for a few hours and then it kind of came to a bit of an abrupt halt and we resolved it.
113HIS HONOUR: Sorry.
114MS REZSNEKI: And then Mr Gold changed his ‑ ‑ ‑
115HIS HONOUR: Yes. I thought the chronology indicated that he was ‑ ‑ ‑
116MS REZSNEKI: I think he was the only person cross-examined, though. It was not a very long committal at all.
117MR PEARSON: Yes. That is what I put in the outline, Your Honour.
118HIS HONOUR: Well, I will revise that. Look, that is my mistake.
119MS REZSNEKI: That was the only thing, Your Honour.
120HIS HONOUR: I will revise that.
121MR PEARSON: Yes. So what I put in paragraph 8 was that ‑ ‑ ‑
122HIS HONOUR: Yes, yes, it is my mistake.
123MR PEARSON: ‑ ‑ ‑ the complainant was cross-examined, albeit briefly.
124HIS HONOUR: Look, in the circumstances, clearly that was inaccurate. I will revise the decision.
125MS REZSNEKI: Thank you, Your Honour.
126HIS HONOUR: But I do not propose to change the sentence that I have made.
127MS REZSNEKI: No, no, Your Honour.
128HIS HONOUR: But I will revise that in the remarks.
129MS REZSNEKI: Thank you, Your Honour.
130HIS HONOUR: All right. Thanks for bringing that to my attention. So, it is a total effective sentence of 7 years and 4 months, with a non-parole period of 4 years and 6 months.
131The s 6AAA is 10 years for a minimum of 7 years. Sex offenders registration for life. 11 days pre‑sentence detention. Those are the orders that I will make in this case.
132MS REZSNEKI: As Your Honour pleases.
133HIS HONOUR: All right. We will stand down till half past.
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