Director of Public Prosecutions v Greene (a pseudonym)

[2023] VCC 942

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE GREENE (a pseudonym)

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2023
DATE OF SENTENCE:	5 June 2023 and 7 June 2023
CASE MAY BE CITED AS:	DPP v Greene (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 942

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW    

Catchwords:              6 charges of indecent act with a child under the age of 16; 1 charge of sexual penetration of a child under the age of 16; 3 charges of sexual penetration of a child under the age of 16; 1 charge of sexual assault of a child under the age of 16; sentence after trial; no relevant criminal history; significant breach of trust; two complainants

Legislation Cited:      Crimes Act 1958 (Vic); Crimes (Sexual Offences Act) 2006 (Vic); Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic); Crimes Legislation Amendment Act 2010; Crimes Amendment (Sexual Offences) Act 2016 (Vic); Criminal Code Act 1995 (Cth); Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (No. 42 of 2010) (Cth); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:Fichtner v The Queen [2019] VSCA 297; Worboyes v The Queen [2021] VSCA 169; Brown v The Queen (2019) 59 VR 462; R v DP (2007) 176 A Crim R 382; DPP v Watson [2016] VSCA 73; (2016) 259 A Crim R 327; R v Verdins [2007] VSCA 169; 16 VR 240

Sentence:                  State sentence: total effective sentence of 13 years and 8 months imprisonment. Non-parole period of 8 years and 6 months. Commonwealth sentence: 20 months imprisonment. To be released on Recognisance Release Order after 8 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Z. Menon	Office of Public Prosecutions
For the Accused	Ms E. Clark Mr S. Pica (sentence)	Pica Criminal Lawyers

HER HONOUR:

1Shane Greene,[1] on 27 February 2023 after an 8 day trial you were found guilty by a jury of:

·6 charges of indecent act with a child under the age of 16, contrary to s47(1) of the Crimes Act 1958,[2] which carries a maximum penalty of 10 years' imprisonment (Charges 1, 3, 4, 5, 8 & 9);

·1 charge of sexual penetration of a child under the age of 16, contrary to s45(1) of the Crimes Act 1958,[3] which carries a maximum penalty of 25 years' imprisonment (as it was found to be in circumstances of aggravation by virtue of the complainant being under the age of 12 years) (Charge 2);

·3 charges of sexual penetration of a child under the age of 16, contrary to s45(1) of the Crimes Act 1958,[4] which is in effect the same charge as charge 2, but this carries a maximum penalty of 10 years' imprisonment (Charges 6, 7 & 10); and

·1 charge of sexual assault of a child under the age of 16, contrary to s49D(1) of the Crimes Act 1958,[5] which carries a maximum penalty of 10 years' imprisonment (Charge 11).

[1] A pseudonym.

[2] As amended by the Crimes (Sexual Offences Act) 2006 (charge 1); and the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (charges 3, 4, 5, 8 & 9)

[3] As amended by the Crimes Legislation Amendment Act 2010.

[4] As amended by the Crimes Legislation Amendment Act 2010.

[5] As amended by the Crimes Amendment (Sexual Offences) Act 2016.

2After you were found guilty of the above charges, you then pleaded guilty on 21 March 2023 to a single charge on indictment M11089304.1B of one charge of using a carriage service for sexual activity with a person under 16, contrary to s474.25A of the Criminal Code Act 1995 (Cth),[6] which carries a maximum penalty of 15 years' imprisonment.

[6] As amended by the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (No. 42 of 2010) (Cth).

3During the plea hearing, I have had the benefit of comprehensive and helpful submissions by both your counsel, Ms Clarke, and the prosecutor, Mr Menon, both in writing, and as part of oral submissions.

Circumstances of Offending

4You were 21 years old when you met each of the complainants, Claire Rogers[7] and Anna Rogers.[8] Claire was born in February 2004, and is the younger cousin of Kathryn Williams,[9] now known as Kathryn Williams-Roberts, who was your partner at the time you committed these offences.

[7] A pseudonym.

[8] A pseudonym.

[9] A pseudonym.

5The second complainant, Anna Rogers,[10] is the older sister of Claire. She was born in May 2001 and was aged between 12 and 13 years of age at the time of the offence.

[10] A pseudonym.

6As noted, the charges upon which you fall to be sentenced arise from two separate indictments. On 18 February 2022, I granted an application made by your counsel to sever the original indictment and ordered that a separate trial occur on what was then Charge 12, which was the charge relating to Anna Rogers. It is now Charge 1 on indictment M11089304.1B.

7It is necessary to set out a little of the background to the offending, as led by the prosecution at trial, in order to place your offending, particularly against Claire Rogers, in context. Given the jury's finding, I sentence you on the basis of the facts as they were alleged at trial.

8You were born in December 1989. When you were 21 years old, you began dating Kathryn Williams, who was aged 17 years at the time. Kathryn’s mother, Karen Williams,[11] was the sister of Denise Rogers[12] - who is the mother of Anna and Claire Rogers. The Rogers and Williams families were very close, and consequently Anna and Claire were very close to their cousin, Kathryn.

[11] A pseudonym.

[12] A pseudonym.

9Conversely, your family was not large and, as a result, you became close with the Williams family. Over the span of your 7 year relationship with Kathryn, you would attend most of the family functions, celebrations and visits where the Rogers were also often present. Throughout the trial, multiple witnesses gave evidence that at these family functions, you spent more time with the children, such as Anna and Claire, instead of spending time with your partner Kathryn or the other adults.

Indictment M11089304.1A – Complainant: Claire Rogers

Charges 1 and 2

10You first met Claire Rogers at the Williams’ house in Strathmore between 10 February 2011 and 9 February 2013 when Claire Rogers was between 7 and 8 years of age. On this occasion, Claire remembers being apart from the rest of the family and celebrations, describing herself at the time as not being 'a social person' and not liking 'being around a huge group of people'.

11At some stage whilst you were at the Williams’ house, you approached Claire whilst she was in the kitchen and told her, 'Come with me'. You then took her into Kathryn’s bedroom. You locked the door, took off Claire’s clothes and started touching her breast and chest area – telling her, 'You feel so good' whilst calling her 'baby'. (Charge 1: Indecent Act with a child under 16).

12You then managed to get Claire onto Kathryn’s bed and put your hands down underneath her tights and underwear and touched in her vagina. Claire described this as being 'stingy and uncomfortable'. Your hand was on Claire’s vagina for approximately 5-10 minutes. (Charge 2: Sexual Penetration with a child under 16).

13At one stage, you tried to remove Claire’s tights but were interrupted by a sudden knock on the bedroom door. You 'freaked out' and exclaimed to Claire to 'Get dressed' whilst responding to the knock saying, 'Just a minute'. After you helped Claire put her clothes back on, you told her to wait a minute after you had left the room before she came back outside. You then told her that no one could know about what had happened, and that it would be all her fault if something happened. Claire complied with your demands, waited a few moments in the bedroom before leaving, and did not tell anyone what had happened.

Charges 3 and 4

14In June 2015, Kathryn Williams turned 21 years of age, and, at the time, you two were still in a relationship. To celebrate her birthday, Kathryn had a birthday party in June which was hosted at the Rogers’ family house, at which Claire was in attendance. Claire was aged 11 years. At some stage during the night, after it had become dark, Claire went out the back of the house by herself. She sat on the windowsill outside of her bedroom. You approached her and stood beside her. You proceeded to touch Claire on the side of her groin area, outside of her clothing (Charge 3: Indecent act with a child under 16).

15You then went on to touch Claire on her breast area, but were stopped by her hand pushing yours away. You then said to her, 'Let's go to the toilet'. Although she was scared, Claire complied as she did not think she could stop it from happening. You took her by the hand and led her inside into the toilet. You sat yourself down on the toilet seat, and lifted Claire down on your lap. You then proceeded to touch Claire high up on her groin area (Charge 4: Indecent act with a child under 16).

16You were interrupted by a sudden knock on the toilet door. You told the complainant to get up and to come out 5 minutes after you, giving you time to leave the bathroom unnoticed. You then left the toilet, and the complainant again complied with your demands. After she waited and left the toilet, she stayed close to her parents for the remainder of the night.

Charges 5-7

17When Claire was either 11 or 12 years old, she recalls you telling her and her parents that you wanted to take her back to your home with your partner Kathryn; where you were living with your mother, father, twin sisters and cats. Denise Rogers was asked if she would allow Claire to have a sleep over at your home to show Claire your cats. It was made clear to Denise that Kathryn would be there with you. You and Denise had a discussion about the possible arrangements of the sleepover – you told her that you were going to watch movies. At this time, you were aged around 26 or 27 years.

18The day before the proposed sleepover, Kathryn informed Denise that she would no longer be able to attend the sleepover, but because your parents and sisters were going to be home, that it would be fine for the sleep over to proceed as planned. Denise Rogers, although hesitant, believed Claire would be staying at your home with your parents present, and allowed Claire to stay at your house..

19On the day of the sleepover, you drove to the Rogers family home to pick up Claire. However, instead of driving her back to your home, you drove to a farm.

20The farm was owned by Ms Dianne Wright[13], a family friend of the Williams family and to a lesser extent, the Rogers. Although the farm was operational, or at least partially, Ms Wright made the house available for family and close friends to come and stay from time to time for weekend getaways. You had previously stayed at the farm overnight with your partner, Kathryn, and admitted in your police interview that you knew the location of the hidden key at the farm.

[13] A pseudonym.

21When you and Claire arrived at the farmhouse, Claire was expecting her cousin, Kathryn, to meet you at the farm – she did not. It was not until later that night when Kathryn had not arrived that Claire began to think, in her words that it was 'a bit weird'. Consequently, Claire decided to go to bed early. You told her that she would need to sleep in the same room as you 'for safety reasons'.

22Once you were both in the bedroom, you told Claire to take her clothes off. Knowing that you were alone together in the house, and feeling that she could not stop you, Claire complied with your demand and did as she was told. You proceeded to touch her and kiss her, before pulling your penis out.

23With your penis exposed, you told Claire to grab it and move her hand up and down. Again, she complied.  She thought it would end there (Charge 5: Indecent act with a child under 16 – masturbate penis).

24You also then used your fingers to penetrate Claire’s vagina (Charge 6: Sexual Penetration with a child under 16).

25You manoeuvred yourself into a position so that your penis was close to Claire’s vagina. Claire attempted to push you away and told you words to the effect, 'I don't want to do this. I'm not in the mood'. Disregarding what Claire was saying and doing, you continued to kiss Claire, and asked her, 'Why would you want to stop?' You then forced your penis into her vagina; in Claire’s words 'the tiniest bit inside'.  Claire recalls you continuing to attempt to penetrate her vagina for a period of about 30 minutes. During this time, she was trying to push away from you. You successfully managed to penetrate the complainant twice more to the same extent. After ejaculating, you told Claire to get dressed before exiting the room (Charge 7:  Sexual Penetration with a child under 16).

26That night, you slept in the same bed as Claire. The following morning, you woke up early and drove straight back to the Rogers’ home to drop Claire home. Claire did not tell her mother that she had spent the night at the farm, and did not tell her mother what you did to her. Instead she told Denise a story about seeing cats, as you had directed her to do.

Charges 8-10

27Sometime between February 2015 and February 2017, when Claire was aged either 11 or 12, she recalls an occasion where you and Kathryn were tasked with looking after her and her siblings. Claire recalls attending a calisthenics competition with you at a theatre where you were working at the time. During the event, you were tasked with operating the lighting, and had access to the lighting room.

28When the competition ended, you took Claire to a back room, where the two of you were alone. Once you were in the room, you removed your pants, took out your penis, and told Claire to touch it (Charge 8: Indecent act with a child under 16 – touched penis).

29You touched Claire’s breast area (Charge 9: Indecent act with a child under 16 – touched breasts).

30You then put your finger in Claire’s vagina (Charge 10: Sexual penetration with a child under 16 years).

31Once you had finished with Claire, you both got dressed and you locked up the theatre before going home. Claire went home that night and, although she did not tell anyone what had happened, she went to bed and cried.

Charge 11

32On 6 July 2018, Claire attended her grandfather's wake which was held at Windy Hill. She was aged 14 at that time. You were in attendance with Kathryn, who was still your partner at that stage. Claire recalls stepping outside of the function room for a moment and sitting alone on some steps. You approached her and tried to convince her to go to the toilets with you by whispering words along the lines of, 'Come on, it'll be fun' in her ear. She rejected your advances and told you to leave her alone.

33You then started to touch Claire on the leg, trying to get your hand into her underwear whilst sitting beside her (Charge 11: Sexual assault of a child under 16). Your hand went under her dress and to the side of her underwear, however you did not manage to touch her vagina.

34Denise Rogers recalls seeing you and Claire sitting on the steps outside of the wake, and recalls Claire looking 'distressed and quite pale'. Denise approached Claire and suggested she return inside with her family, which she did. This was the last time that anything of a sexual nature occurred between you and Claire.

Disclosure of offending

35On 10 March 2020, Denise Rogers took her daughters, both Anna and Claire, to a calisthenics competition in Greenvale. Once the three had arrived at the competition hall, an ongoing dispute from earlier that morning between Claire and her mother escalated. This culminated in Claire telling her mother to 'Fuck off', before she stormed out of the competition hall. After approximately 10 minutes, once Claire had not returned, Denise decided to go and look for Claire. When Denise eventually located Claire, she continued to run away from her mother around a football oval, until she was stopped. A further argument ensued, before Claire told her mother 'there are things about me that you just don't know'. Eventually, Claire told her mother 'It’s [Shane]’. She told her mother that you had done things to her that she felt ashamed about and that she was worried that her parents would no longer love her. Claire disclosed to her mother that the last time any of the offending happened was at the funeral; she divulged that you had had sex with her, and that you made her do things to you.

36Denise immediately made arrangements for Claire to attend at Sunbury police station to make a statement. During the car trip, Claire informed her mother as to when and where some of the offending had taken place without going into detail of the conduct.

37The next day, Claire returned to the police station and participated in a VARE.

Indictment M11089304.1B : Complainant: Anna Rogers

38Turning now to the offending which is the subject of indictment M11089304.1B.

39The circumstances of this offending are set out in a Summary of Prosecution Opening for Plea dated 17 May 2023 which was tendered on the plea hearing.

40Throughout your relationship with Kathryn, Anna recalls having communicated with you via a number of social media platforms such as Snapchat, Facebook, and Google Hangouts.

41Anna recalls first having contact with you via Google Hangouts. She used that application before she was first given a mobile phone when she was 14 years of age. Anna recalls communicating with you on Google Hangouts about twice a week.

42On an occasion between 1 January 2014 and 31 March 2015, when Anna was between the ages of 12 and 13 years, she was home alone and communicating with you via Google Hangouts. At the time, her father was away for a long weekend trip, and you were in Adelaide for work.

43Whilst you were communicating with her, you persuaded her to take off her clothes and touch herself. You told her that it was 'ok' and that it was 'normal', and you asked her to trust you. Anna complied, and filmed herself touching her breasts and vagina whilst you filmed yourself masturbating your penis (Charge 1: Use carriage service for sexual activity with person under 16).

44Once Anna had turned 14, she was given a mobile phone. Not long after, she downloaded the app 'Snapchat' and began communicating with you via that app. Through Snapchat, she recalls receiving pictures from you of your penis. The last time you sent a photo of your penis was after you broke up with Kathryn. At that time, Anna was 17 years old. This is not the subject of a charge but is relied upon by the prosecution for context.

Disclosure of offending

45Anna first disclosed your offending to her mother sometime after March 2020. Although she did not disclose the full details, she told her mother that 'something happened'.

46On 26 March 2020, you were interviewed by police in relation to the allegations made against you by both Anna and Claire Rogers. In that interview, you denied each and every allegation made against you, and denied doing anything sexual with either Claire or Anna. You stated:

·That you attended the farm about 4 times with Kathryn for weekend getaways;

·That you knew where the hidden key to the farm was;

·That it was only ever you and Kathryn that went to the farm;

·That you never took Claire to the theatre where you worked the lighting;

·That you never took Claire into Kathryn’s bedroom alone;

·That you always hung out with the older people at the family gatherings;

·That you only hugged Claire at her grandfather's funeral/wake; and

·That you never asked Anna Rogers to send you any inappropriate images, nor did you send any inappropriate images.

Victim Impact Statement

47Claire Rogers provided a Victim Impact Statement, as tendered on the plea as Exhibit B. It was a powerful statement, depicting her pain and the shame and fear that she has experienced. Claire describes that you ruined her life, her childhood, her happiness and her self-worth. You made her feel like she was nothing, you made her feel that she was not loveable. Claire expressed how she struggles to trust anyone, even her family. At times, she has been unable to eat, unable to sleep. She could not even think without believing there is something wrong with her. She states:

Yet I have no hate in me for anyone but myself, because even though what happened wasn’t my fault, you made sure I would always feel like it is.

48She goes on to say that the worst part is that she knows she will always have the trauma. She states:

I’ll have moments where all I’ll be able to know and think about is what you did and put me through.

49Claire still has days where she looks over her shoulder, terrified that you will be there waiting for her.

50Anna Rogers also provided a Victim Impact Statement, as tendered on the plea as Exhibit C. This too describes the significant effect your offending has had on her. Anna describes the constant anxiety and depression that she has endured as a result of your offending. She describes how she wakes up in the middle of the night in sweat because of the dreams she has of that day. She is afraid to go out and be a normal young adult, she dresses in baggy clothing. She is fearful of something happening to her and has received hours of counselling and taken anti‑depressants in order to help her cope. She states:

I don’t think I will ever feel normal or how I used to feel.

51The complainants' parents, Denise and John Rogers,[14] each provided a Victim Impact Statement, tendered on the plea as Exhibits D and E respectively. They both express how they feel they have failed as parents; as much as they have tried to protect their children, their daughters are scarred for life because of your offending. They describe the devastating effect your offending has had, not only on their children, but on themselves and their extended family and friendship base. Denise Rogers describes how Claire was unable to finish school, and how by your offending, you took away her ability to feel safe at home and in her learning environment. She states that Claire lived with traps set inside her door in fear.

[14] A pseudonym.

52Denise states that there are days when she does not want the world to continue. She misses terribly her girls of old, the carefree laughing free spirits they were before. She just wants them to feel safe. She states: 'I hold my girls close, so close that at times it must be suffocating for them.'

53John Rogers states that the pain his family has to endure forever will never leave, and he describes his anger at learning of your behaviour. He notes that he is able to smile on the outside but he is sad and distraught on the inside where he hides his pain. It has pained him to keep this from his parents.

54Each of the Victim Impact Statements speak of their pain and suffering as a result. It is a pain, Mr Greene, that you have caused. They also each speak of their individual feelings of guilt and shame. It is important to note that neither of your victims, nor indeed their parents are to blame for your conduct. They should not feel guilty or ashamed. The reality is that you, and you alone, are responsible for this offending.

Procedural History

55You were charged in relation to the offending concerning Claire Rogers and Anna Rogers on 15 April 2021. The charges were committed to this court on 8 October 2021, following a contested committal hearing in the Magistrates Court. Preliminary argument and cross examination of various witnesses took place in January 2022. The charges as between Claire and Anna were severed following a ruling. A trial, set down for September 2022 had to be vacated as a result of a further disclosure made by Claire regarding a diary kept at the farm. This necessitated the listing of some further hearings pursuant to s198A of the Criminal Procedure Act which took place in October 2022 and January 2023. A further special hearing took place on 23 January this year whereby Claire was further cross-examined on the question of the diaries. Accordingly, your trial did not commence until 16 February this year.

56You were remanded in custody following the jury's verdict on 27 February 2023. You have accrued 98[15] days of pre-sentence detention in relation to the State offending.

[15] Note: this was adjusted at the time of sentence to reflect that there are 100 days pre-sentence as at 7 June 2023

Prior criminal history

57You have no prior criminal history.

Personal circumstances

58You were born in December 1989 and you are now aged 33 years old. You are the eldest of three children. You have two younger twin sisters who are aged 30 and live in NSW. Prior to your remand, you were living with your parents who are both retired police officers. At the time of the offending your sisters were living in the house with you and your parents.

59During your psychological assessment with Dr Matthew Barth, you described your childhood as being very difficult. Your father abused alcohol heavily, and was both verbally and physically abusive towards you, particularly between the ages of 7‑12 years.

60Your mother recalls an occasion when she had returned from work one evening to discover broken glass on the floor of the house. Your father had tried to grab you around the neck and in retaliation you pushed him into a cabinet which resulted in glass smashing on the floor. When your mother pressed you as to what happened, you disclosed to her that your father had been abusing you for several years, and that you would frequently run away and hide from him. The physical abuse ceased during your teenage years, but your relationship with your father remained distant and detached.

61You were described as being non-verbal until you were at least 4 years old, possibly exacerbated by the fact that most of the attention at your home during your early years went to your twin sisters, who were born prematurely, and became the focus of your parents. After your first year at kindergarten you were still non‑verbal, and it was arranged for you to complete an additional year to develop your communication skills.

62You attended Vermont Primary School, where your limited communication skills made it difficult for you to socialise or make friends. You struggled with reading, writing and comprehension, and were purportedly diagnosed with Attention Deficit Disorder for which you were medicated with dexamphetamine and Ritalin. Your mother notes that these had no effect on you.

63You attended Vermont Secondary School, where you were subject to regular bullying. After concerns from your teachers and discussions with the school regarding your performance academically, you were assessed at the Krongold Clinic at Monash University. The results of these tests indicated that, unlike previously thought, you did not have ADD, but that your comprehension levels were significantly below children of the same age. Consequently, you were only able to successfully complete up to Year 10 in your secondary education.

64You went on to complete your Certificate IV in Live Theatre and Production at Holmesglen TAFE and later found work as a theatre technician. You were working full time and this role and it was your last role before being charged with these offences.

65Your first and only intimate relationship was with Ms Williams-Roberts. You met her when you were 21 and she was 17. Your relationship spanned the entirety of your offending, which was approximately 7 years. Despite the fact the you were the older partner, there were significant problems between you given the difference in maturity levels of you both, which resulted in Kathryn assuming the responsibility for the major decisions throughout your relationship. You eventually proposed to her but she did not accept and your relationship began to deteriorate.

66You commenced drinking alcohol when you were 18 years old, in your words as a mild social drinker. However, throughout your relationship with Kathryn, you note that your alcohol use increased, and eventually you began to binge drink between 12 and 16 alcoholic beverages on weekends. You continued this up until your separation from Kathryn in 2018, where you purportedly consumed 'a bottle of vodka a day' for several weeks to cope with the separation. You eventually 'eased up' and 'got back to being [your]self'.

67Since being charged with these offences, you have had an intermittent reliance on alcohol, which has increased in recent years as a way to cope with the stress of these legal proceedings. You eventually relapsed into your old habits and, up until your remand, you were reportedly drinking in excess of a bottle of vodka a day.

68You have never used illicit substances.

69Your time in custody has been difficult for you to adjust to. You have been housed in a protection unit. This is your first experience of living outside the family home. Initially you were not provided with your antidepressant medication which exacerbated your experience of custody for the first time. You have had almost daily contact with your mother and both of your parents have visited you. Although restrictions have eased substantially, conditions in custody continue to be somewhat more onerous due to the restrictions caused by the COVID‑19 pandemic. To your credit you have reportedly undertaken some courses whilst in custody. I take this into account.

70Forensic psychologist Dr Matthew Barth conducted an assessment of you after the jury's verdict and provided a report. He opines that you are currently experiencing depressive and anxiety related symptoms of moderate intensity, which are in direct response to the stress associated with these proceedings and also being separated from your mother and your cat. Your symptoms, whilst not insignificant, are not currently at the intensity to meet diagnostic criteria for any mood disorder, anxiety related disorder or adjustment disorder. You are not considered to be intellectually impaired and there are no deficits in your ability to appreciate the wrongfulness of your behaviour. Dr Barth notes that your social skills are not well developed which makes it difficult for you to establish and maintain close connections. Your interpersonal difficulties represent prominent features of avoidant and dependent personality disorders, narrowly falling short of the diagnostic criteria for such disorders. Dr Barth considers that your significant interpersonal problems have culminated in difficulties achieving healthy adult sexual intimacy. I take this into account when assessing your moral culpability.

71Dr Barth notes a recent improvement to your mental state. However, he considers that you are likely to internalise the punitive aspects of sentence which could risk a deterioration in your mental state in the period immediately after sentence. It is not submitted that any of the principles enunciated in R v Verdins[16] are enlivened in your case. However, Ms. Clarke submits that the potential for deterioration of your mood in custody is relevant to determining your overall experience of incarceration as compared with others. I take this into account. I will also say more about Dr Barth's report in a moment.

[16] [2007] VSCA 169; 16 VR 240.

Character references

72A number of character references were tendered in your behalf. Your mother set out some of the detail of your childhood particularly with respect to your development, and the violent and abusive relationship you experienced with your father, your difficulties at school and your social awkwardness. She described learning of the abuse that you had been subjected you, which was confirmed by your sisters.

73Your aunt in her reference, spoke of the difficult and conflictual relationship you had with your father growing up, your enthusiasm for your theatre work and the impact that being charged has had on you, particularly as you awaited trial. She refers to your limited resilience and lack of ability to be able to cope with stress. You have found the experience frightening and overwhelming. She notes that your mother has always been very protective of you. Your aunt notes that you are very helpful and kind and she refers to the way in which you have supported your twin sisters who have had mental health problems.

74Your previous employer, has known you for many years and considers the offending out of character. He speaks of your commitment to your work, being a reliable and hardworking member of volunteer musical theatre. He describes you as a man who is industrious, honest, considerate, reliable, caring and prepared to go the extra mile to help someone out. He also notes that you are courteous and respectful; he considers that you are sensitive and at times your naïveté has meant that you could easily be taken advantage of by others.

75I note that you have had a number of appointments with psychologist Lawrence Hayden. You saw him on a number of occasions in 2021 and again on four occasions this year. In his experience of your sessions, he noted that you had expressed significant symptoms of suicidal ideation but there was no evidence that you had self-harmed, although there was evidence of a willingness to do so.

Nature and Gravity of offending

76Sexual offending against children is abhorrent. Courts have denounced offences of this nature as 'inherently evil and depraved', violating the basic norms of civilised behaviour and striking at the value that the community places on the lives and wellbeing of its young persons.[17] This is particularly so where the offending involves a breach of trust reposed in the offender.

[17] Fichtner v The Queen [2019] VSCA 297 [67].

77Your offending here against Claire Rogers was extremely serious. It occurred for the first time when she was 7 or 8 years old, and continued over a further four separate occasions throughout a 7 year period. On that first occasion, Kathryn’s extended family were invited to her home and you had met Claire for the first time. Despite her having met you just that day, with incredible brazenness, you approached her when she was alone in the kitchen and took her to Kathryn’s bedroom where you removed her dress and touched her.

78Swiftly your offending escalated to you penetrating her vagina with your finger and at one stage you tried to remove her tights. You continued to leave your hand there for what must have seemed an extremely long 5 to 10 minutes for a 7-year-old girl, who before that day, was a stranger to you. Now sadly you are a person who has left an indelible imprint on her childhood.

79Your offending was opportunistic, and you were seemingly prepared to take an enormous risk for your own sexual gratification. This offending is aggravated by the fact that Claire was particularly young. The fact that she was under 12 is a circumstance of aggravation, the gravity of which is reflected in the higher maximum penalty applicable for this charge. I take into account that you were relatively young at this time, being 21 years. After you were interrupted by a knock on the door, you instructed Claire not to complain, as it would all be her fault.

80The objective gravity of the offending on this occasion was significant. I note that despite having run a trial in which all charges, including Charges 1 and 2 were contested, you have since admitted to psychologist Dr Matthew Barth that you committed these two offences stating, 'I don't know what got into my head, I can't explain why I did it, I have so much regret'.

81Your willingness to take risks and prey upon Claire at a family function resurfaced a number of years later when she was aged 11 and her family had gathered at Kathryn's house to celebrate her 21st. That you were prepared to resume your depraved conduct would no doubt have been very confusing for a child of that age, given that you had continued to see Claire and her family during the intervening years, fortunately without any offending.  Seeing Claire outside and alone, you took the opportunity to offend against her, before moving her to the relative privacy of the toilet where you indecently assaulted her.

82Charges 5, 6 and 7 represent particularly repugnant and disturbing predatory conduct by you. There was a degree of planning and pre-meditation whereby you firstly continued to represent to Claire’s mother that you were taking her for an overnight stay at your parents' home, so that she could see your kittens. Initially, as I have noted, Mrs Rogers understood that Kathryn would also be in attendance, a view that apparently Claire shared. Even when it became apparent that Kathryn could not attend, Claire’s mother was prepared to let her child accompany you for an overnight stay at your home, trustingly believing that your parents would be present.

83Instead, you drove Claire to a farm. A farm that was relatively remote, being out of suburban Melbourne, unoccupied and with which she was unfamiliar. Claire was alone with you, and naively waiting for her older cousin to arrive. Having isolated her, you then went on to offend against her whereby she felt she had no option but to comply. This included kissing her, making her touch your penis, and penetrating her vagina with your finger. Despite Claire resisting and telling you that she did not want to do this, your offending culminated in you sexually penetrating her with your penis (after a number of attempts to penetrate), until eventually you ejaculated. You did so without a condom, an aggravating feature of your offending given that you thereby exposed her to the risks of sexually transmitted disease. There is also, generally speaking, a risk of the possibility of pregnancy although I accept that there is no evidence that Claire at that stage had gone through puberty.

84Your offending on this occasion was entirely pre-meditated. You violated a child to satisfy your own depraved sexual desires, and with an utter disregard for the impact that this abhorrent behaviour might have on someone so young during her formative years. There is a sinisterness to the way in which you went about this episode of offending, by isolating Claire, offending against her including sexual penetration, and then sleeping in the bed next to her. It is not difficult to imagine how terrifying this must have been for a child of 11 or 12, particularly given that she had previously been subjected to your sexual advances on other occasions. In doing so, as I have said, you breached the trust placed in you by Claire and her family. I regard this offending as most grave. It is the most objectively serious of the incidences of offending before me, although the first instance is also particularly serious having regard to Claire’s age.

85The occasion on which Claire was subjected to your sexual offending at the theatre also represents a significant breach of her family's trust in you. Claire was again alone with you in the lighting box and you again took advantage of that fact. On this occasion being at your workplace, you held a position of responsibility for Claire’s care. Yet, you took the opportunity to offend against her in circumstances that were both predatory and brazen.

86The final offending against Claire was again brazen, and showed that you were paying little regard to her wishes or feelings. You opportunistically began touching her at her grandfather's funeral when she was 14; on an occasion where it might be expected that she would be feeling emotionally fragile.

87As the prosecution points out, the disparity between your respective ages was clear and distinct. Whilst I accept that as at the first occasion of the offending, you were relatively young as an adult, being in your very early 20s, by the time you took Claire to the farm, and to your work, you were aged in your mid to late 20s.

88On the occasion when Claire was at the farm, and again in the lighting box, you attempted to normalise the behaviour and portray it as fun or enjoyable. You also expressed to her that if she told anyone, that bad things would happen and it would be all her fault, and you would not be happy. She told the police that she felt scared of you.

89Whilst I accept that the offending did not occur on every occasion with which you saw Claire, it occurred over a number of years and you would have had ample time and opportunity to reflect on what you had done. Each occasion reflected a renewed instance of offending behaviour that occurred over the period of 7 years. That you persisted with this offending, which escalated in gravity, makes the offending particularly serious.

90In committing these offences, you breached the trust borne out of the relationship you had with Claire’s older cousin and your ongoing involvement with the Rogers family. Moreover, Claire was particularly vulnerable as a result of her frequent bouts of ill health. At the time of the offending, her Ehlers-Danos disease had not been diagnosed (this diagnosis was made when she was 15). However, she first began experiencing symptoms when she was quite young, before she was in primary school. Her condition was such that as a result of her (then undiagnosed) illness which affected her collagen and the ability of the body to support her bones, she was often in pain, had severe headaches, dizzy spells, seizures, suffered dislocations of her bones and had days when she could not get out of bed. At one stage when she was in Year 7, she was bedridden for months. To that end, she missed some schooling, became socially isolated and rarely left the house without her family.  Similarly, although she had exhibited signs of ADHD and Autism Spectrum Disorder at a young age, these were not diagnosed until she was 17.[18] Whilst I accept that you did not know or appreciate the full extent of Claire’s ailments or condition, there was at least some understanding that because of her periods of illness that there was an additional layer of vulnerability.

[18] Evidence of [Claire Rogers] given at special hearing on 22 February 2022 [T27.20- T29.29]; Evidence of [Denise Rogers] at Trial [T103.19- T104.17, T127.23- 128.4].

91Turning to the offending committed against Anna. This offending is also serious. I accept the prosecution submission that it is not at the lower end. You abused the position of relative trust that you had been given by Anna and by her family in having online access to her. Anna was entering into her early teen years. She was by no means as young as Claire when you first offended against her, but nonetheless at an important point in her life being her pubescent years. In seeking to convince Anna to engage in the sexual activity, you again attempted to normalise what she was being asked to do, and what you were doing.

92Your subsequent conduct in sending her photos of your genitals over a period of 3 years from when she was 14 is not the subject of a charge and you are not to be sentenced for it. Rather, the prosecution relies on this to place your offending in context. It demonstrates that your offending against Anna when she was 12 or 13, was not isolated aberrant behaviour. However, I accept your counsel's submission that the offending which is the subject of this charge is confined to a single occasion which is also relevant to the assessment of the objective gravity of this offending.

93Overall, I regard your moral culpability with respect to both victims as high, although I have taken into account the significant interpersonal problems that Dr Barth has identified has resulted in your inability to achieve healthy adult sexual intimacy. As the prosecution points out however, these do not provide an explanation for your attraction to two children and your preparedness to act on it.

Plea of Guilty: indictment M11089304.1B.

94I take into account your plea of guilty in relation to the offending with respect to Anna on indictment M11089304.1B.[19] Originally the prosecution had sought to run this charge with the charges involving Claire. Witnesses were cross examined at hearings pursuant to s198A of the Criminal Procedure Act 2009 (Vic) and ultimately this charge was severed from the other indictment. The matter was originally set down for trial, but following the jury's findings of guilt in relation to the charges involving Claire, you indicated your intention to plead guilty.

[19] See s 16A(2)(g) Crimes Act1914 (Cth).

95Although your plea of guilty on this charge is not a plea entered at the earliest opportunity, it is nonetheless a valuable plea. You have spared the complainant from having to give evidence at trial. Your plea is also of utilitarian value and indicates a willingness to facilitate the course of justice. You have saved the community the time and expense of a trial. It is also some evidence of remorse.

96Furthermore, your plea is of additional value given that it was entered at a time when the courts and the community have been afflicted by the COVID‑19 pandemic, which has resulted in a substantial backlog of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[20]  your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects.  Your plea should result in a perceptible amelioration of sentence. 

[20] [2021] VSCA 169.

Remorse

97You have, for the most part, maintained your innocence for these offences against Claire, but were ultimately found guilty by jury. You are not to be punished for exercising your right to trial, however the consequences of this are that you are not entitled to any discount to which you would have been entitled, had you pleaded guilty.

98Secondly, maintaining your innocence, again as is your right, means that there is no evidence of any remorse or contrition. The exception to this is your admission to psychologist Dr Matthew Barth that you committed Charges 1 and 2 against Claire. You in effect told Dr Barth that you do not know why you did these things and you indicated, “I have so much regret”. In relation to these two charges, I accept that there is a small degree of remorse, but this is somewhat inconsistent with you contesting these two charges at trial. In relation to the other charges involving Claire, you maintained your version to Dr Barth in which you resolutely denied the offending.

Risk of re-offending and prospects of rehabilitation

99Dr Barth notes that upon his assessment of you, there were no indications of any form of thought disorder or psychosis. During his assessment you denied having any sexual interest towards any female child. In his view the nature and duration of your offending clearly indicates the presence of deviant social cognitions and distorted fantasies regarding the two complainants. This in turn led to the deviant arousal patterns and sexual behaviour which culminated in your extended offending. In his view, your offending is indicative of significant psychosexual pathology and a grossly distorted concept of sexual boundaries. He considers that you require participation in a comprehensive sex offender treatment program at the earliest opportunity to address these issues.

100You were assessed for your risk of reoffending using two models. The static 99R indicated a low to moderate risk of sexual recidivism. The RSVP – V2 indicates that your overall risk of sexual recidivism is best understood as falling in not less than the moderate risk category. In making this determination, regard was had to the chronicity of your offending, the diversity of your conduct, and the psychological coercion utilised in an escalation in your behaviour. Dr Barth notes that you continue to deny the majority of your offending and that the nature of your offending conduct indicates that you had a distorted perception of the two complainants' sexual promiscuity and the deviant sexual arousal patterns which underpinned your behaviour. He notes that you have experienced significant difficulty sustaining healthy adult intimacy. You were only able to demonstrate a superficial understanding of the impact of sexual abuse on children and you adamantly denied any deviant sexual attraction towards the two complainants which, as Dr Barth observes, is clearly implausible.

101Overall, Dr Barth assesses you as no less than a moderate risk of sexual recidivism. Again, in his view, participation in a sex-offender treatment program would reduce the risk, and thus improve your prospects of rehabilitation. However, the utility of engagement in such a program in circumstances where you deny the majority of the offending, is limited.

102I take this into account when assessing your prospects of rehabilitation. I take into account that you come before the court with no prior criminal history. However, your offending occurred across a period of a number of years and whilst there was a break between some of the instances of offending against Claire, you renewed your exploitation of her on a number of occasions. You also offended against Anna and continued to contact her online over the ensuing years.

103Apart from accepting responsibility for the offending against Anna, and post-trial for the first two offences against Claire, you have displayed little remorse and appear to have limited insight into the impact of your offending.

104Balanced against this is the fact that you have a strong history of hard work, though I note it is unlikely you will ever be able to work in theatre as you have been.  I also note that there has been no offending since 2018. You have family support and all of these factors bode well for your prospects of rehabilitation. I also note the finding by Dr Barth that you do not have an intellectual disability.

105Synthesising all of these considerations, I have come to the view that you have reasonable prospects of rehabilitation. Engagement with offence specific programs may improve those prospects to be good.

Legislative Provisions

State

Serious sexual offender provisions

106All State charges are relevant serious sexual offences pursuant to schedule 1 of the Sentencing Act 1991 (Vic).

107Because I intend to sentence you to imprisonment on all charges, you fall to be sentenced on Charges 3 to 11 as a serious sexual offender. The effect of sentencing as a serious sexual offender is that the court must regard protection of the community as the principal purpose for which the sentence is imposed. In order to achieve that purpose, the court may impose a disproportionate sentence. The prosecution does not seek a disproportionate sentence here, and I do not propose to impose a disproportionate sentence. The court must, unless otherwise directed, order that the sentences be served cumulatively. Furthermore, I must enter into the record that you were sentenced as a serious sexual offender. 

Commonwealth

108It is not submitted that the Commonwealth charge on indictment M11089304.1B is captured by the serious sex offender provisions.

109As Charge 1 on this indictment is a Commonwealth offence, you fall to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth). Accordingly, when sentencing you on this charge, I am required to have regard to a number of factors which are set out in s16A(2) of that Act to the extent that they are relevant and known to the court, and I do so, as I have indicated.

110Pursuant to s19(5) of the Crimes Act 1914, a term of imprisonment for a Commonwealth child sex offence must be served wholly cumulatively with a State registrable sex offence. However, s19(6) does not require total cumulation if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances. Pursuant to s19(7), the court should state the reasons for taking such approach. Here the prosecution submit that some cumulation is required.

Standard sentence (charge 11)

111Charge 11 is a category 1 offence. Imprisonment is mandatory and cannot be combined with a community correction order. 

112Charge 11 is also standard sentence offence. The standard sentence on this charge is 4 years' imprisonment. 

113As s5A of the Sentencing Act 1991 makes clear, the period specified as the standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

114Section 5B(2)(a) of the Sentencing Act 1991 obliges the court to take the standard sentence into account as one of the factors relevant to sentence. The standard sentence is a matter to which the sentencing court must have regard when imposing sentence.

115But, as the Court of Appeal clarified in Brown v The Queen,[21] s5B(3) expresses the legislature's clear intention that the obligation to take the standard sentence into account should not otherwise affect the sentencing discretion. It is to be treated as a 'legislative guidepost', having the same function as the maximum penalty. It does not affect the established 'instinctive synthesis' approach to sentencing and does not require or permit 'two stage sentencing'. Further, it does not otherwise affect the matters which the court may, or must, take into account in sentencing.

[21] (2019) 59 VR 462.

116Further, when fixing a non-parole period in respect of a standard sentence offence, the court must not fix a non-parole period that is less than 60 per cent of the head sentence unless satisfied that it is in the interests of justice to do so.

117I note that a court must not have regard to sentences imposed in other cases unless they involve standard sentence offences.

118I have had regard to the standard sentence for this offence as one of the matters to be taken into account in arriving at the appropriate sentence by the process of instinctive synthesis. Having identified and considered the relevant factors in assessing the appropriate sentence as part of this synthesis, including the maximum penalty and the standard sentence for sexual assault, in this case I have formed the view that the sentence I will impose on Charge 11 is lower than the standard sentence. You are being sentenced for other offending at the same time and I must take into account principles of totality in arriving at a just sentence.

119Additionally, I have had regard to current sentencing practices for this offence of sexual assault under the standard sentencing scheme, though this is not a controlling factor.

Sentencing practices

120More broadly, in relation to the other 10 charges on indictment M11089304.1A and additionally in relation to the single Commonwealth charge, I have also had regard to sentencing practices for these offences. Tendered on the plea was a table of cases. I have looked at each of these cases.  I take these into account, but of course, this is just one factor and every case is different.

121As Charge 1 on indictment M11089304.1B is a Commonwealth offence, s16A(1) of the Crimes Act 1914 (Cth) requires me to impose a sentence that is of a severity appropriate to all of the circumstances of the case. As indicated, I have had regard to the matters set out in s16A(2). These include the nature and gravity of the offending (as I have already addressed), your personal circumstances including your age; mental health; lack of prior criminal history; the harm suffered by the victim; your plea of guilty and the timing of the plea; and your prospects of rehabilitation, amongst all of the other considerations. I also take into account that you are being sentenced for other State offences.

Totality

122You fall to be sentenced for 11 charges on indictment M11089304.1A and a single charge on indictment M11089304.1B. The offences involve individual and serious conduct; each offence warrants individual punishment. There is a need for the sentence to reflect the individual charges and the conduct they comprise.

123However, I note that some of the offending occurred as part of a single episode, and there should be a degree of concurrency appropriate to satisfy the principle of totality. Charges 1 and 2 took place on the same occasion, likewise, Charges 3 and 4. Charges 5, 6 and 7 also occurred during one occasion, however with respect to this offending I am of the view that given the distinct and serious acts committed on this occasion there should be a degree of cumulation. I have taken a similar view with respect to Charges 8, 9 and 10. Charge 11 is the fifth and final occasion on which you offended against Claire.

124Similarly, the sentence imposed with respect to the offending against Anna also warrants a degree of cumulation to reflect that Anna was a separate victim of your offending, and the harm that she too has suffered as a result.

125However, I must ensure that the totality of the sentences imposed for these closely connected yet separate crimes is met with a total and proportionate sentence. Therefore, I have both moderated to a degree the length of the individual sentences and the periods of cumulation. This is necessary to avoid a crushing sentence.

Relevant sentencing factors

126The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. Pursuant to the Sentencing Act 1991 (Vic), I am required to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offence, your culpability which I consider to be high, the effect of your offending on the victim and your personal circumstances. I also have regard to principles of parsimony.

127Similarly, as I have already noted I must take into account s16(2) of the Crimes Act 1914 (Cth) when determining the appropriate sentence for the single Commonwealth charge.

128Your behaviour was reprehensible, and the court denounces your conduct.

129General deterrence is an important sentencing consideration. Other members of the community must understand that sexual offences against children will not be tolerated.

130As Vincent JA said in R v DP:[22]

Specific and general deterrence assume great significance as sentencing considerations and, putting it bluntly, those who exploit and abuse young children, must anticipate that the response of our society, which our courts represent, will be severe.[23]

[22] (2007) 176 A Crim R 382.

[23] Ibid 393 [46].

131In relation to the Commonwealth charge, general deterrence is again, a significant consideration, and I am obliged pursuant to s16A(2)(ja) of the Crimes Act1914 (Cth) to have regard to this. The reality is that online communication is a highly effective medium through which to exploit and sexualise vulnerable children, but one which is difficult to detect. As the Court of Appeal re-iterated in DPP v Watson,[24] mobile phones and internet access afford an offender 'with unparalleled world-wide opportunity to exploit the young and impressionable'.

[24] [2016] VSCA 73; (2016) 259 A Crim R 327.

132In that case, the court went on to recognise that:

'Today’s technological landscape presents a dangerously easy playing field for manipulation of children. The prevalence of such offending means that significant weight must be attached to general deterrence.[25]

[25] Ibid [89].

133The sentence that I impose also needs to deter you from considering such offending in the future. I must give primary consideration to the principles of just punishment, denunciation and protection of the community. Balanced against that I must take into account your prospects of rehabilitation, as it is in the community's interests to see you rehabilitated and reintegrated into society. 

134Mr Greene, can you please stand?  Counsel, once I have gone through the individual sentences in order for cumulation I will provide you with a copy of the table that hopefully can assist you.

Sentence

Indictment M11089304.1A

135On Charge 1, indecent act with child under 16, you are convicted and sentenced to 12 months' imprisonment.

136On Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to 6 and a half years' imprisonment.

137On Charge 3, indecent act with child under 16, you are convicted and sentenced to 6 months' imprisonment.

138On Charge 4, indecent act with child under 16, you are convicted and sentenced to 9 months' imprisonment.

139On Charge 5, indecent act with child under 16, you are convicted and sentenced to 15 months' imprisonment.

140On Charge 6, sexual penetration of a child under 16, you are convicted and sentenced to 5 years' imprisonment.

141On Charge 7, sexual penetration of a child under 16, you are convicted and sentenced to 8 years' imprisonment.

142On Charge 8, indecent act with child under 16, you are convicted and sentenced to 1 year imprisonment.

143On Charge 9, indecent act with child under 16, you are convicted and sentenced to 3 months' imprisonment.

144On Charge 10, sexual penetration of a child under 16, you are convicted and sentenced to 5 years' imprisonment.

145On Charge 11, indecent act with child under 16, you are convicted and sentenced to  6 months' imprisonment.

Orders for cumulation

146I order that the sentence imposed on Charge 7 will be the base sentence.

147I order that 3 months of the sentence imposed on Charge 1 be served cumulatively on Charge 7.

148I order that 2 and a half years of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 7 and other sentences imposed this day.

149I order that the sentence imposed on Charge 3 be concurrent with the sentence imposed on Charge 7 and other sentences imposed this day.

150I order that 4 months of the sentence imposed on Charge 4 be served cumulatively on Charge 7 and other sentences imposed this day.

151I order that 5 months of the sentence imposed on Charge 5 be served cumulatively on Charge 7 and other sentences imposed this day.

152I order that 9 months of the sentence imposed on Charge 6 be served cumulatively with the sentence imposed on Charge 7 and other sentences imposed this day.

153I order that 3 months of the sentence imposed on Charge 8 be served cumulatively with the sentence imposed on Charge 7 and other sentences imposed this day.

154I order that the sentence imposed on Charge 9 be concurrent with the sentence imposed on Charge 7 and other sentences imposed this day.

155I order that 1 year of the sentence imposed on Charge 10 be served cumulatively on the sentence imposed on Charge 7 and other sentences imposed this day.

156I order that 2 months of the sentence imposed on Charge 11 be cumulative on the sentence imposed on Charge 7 and other sentences imposed this day.

157The total effective sentence on the State charges is therefore 13 years and 8 months' imprisonment.

158I fix a non-parole period on the State charges as 8 years and 6 months imprisonment. 

Serious sexual offender

159Having been convicted and sentenced to a term of imprisonment on Charges 1 and 2, pursuant to s6F of the Sentencing Act 1991, I have sentenced you as a serious sexual offender on Charges 3 - 11 of the indictment M11089304.1A and I direct the fact that my having done so, be entered into the records of the court. I have ordered partial cumulation on a number of these charges as I have indicated, in some instances, no order for cumulation is made, having regard to totality.

Indictment: M11089304.1B

160In relation to Charge 1 on this indictment, I sentence you to 20 months' imprisonment.

161The way in which the sentence on this charge will be structured will be to have the effect that 8 months of this sentence will effectively be a non-parole period and the  8 months of this sentence will be cumulative on the State charges. I have determined that this is necessary so that the individual sentence to be imposed on this Commonwealth charge will adequately reflect the gravity of your offending, but so as to ensure that having regard to the principles of totality, that the ultimate sentence is just and proportionate.  

162I consider that as you are being sentenced for State child sex offences at the same time, that partial cumulation will still result in a sentence that is of appropriate severity in all the circumstances. I direct that these reasons be entered into the record of the court.

163I direct that the sentence on Charge 1 of indictment M11089304.1B will commence on the expiration of the non-parole period of the State sentences imposed on this day.  This should, if my calculations are correct, mean that you are obliged to serve a period of imprisonment of 9 years and 2 months before becoming eligible for parole.

Pre-Sentence Detention

164Pursuant to s18 of the Sentencing Act 1991, I declare 98[26] days pre-sentence detention as time already served to be deducted from the State sentence that I have imposed.

[26] Pre-sentence detention as at the date of sentence, being 7 June is 100 days

Sex Offender Registration

165Sexual penetration of a child under 16 is a class 1 offence pursuant to the Sex Offenders Registration Act 2004 (Vic). Indecent act with child under 16, sexual assault of a child under 16, and use carriage service for sexual activity are all class 2 offences. I declare that having been found guilty of four Class 1 offences and 8 Class 2 offences, that you will be required to comply with the obligation imposed by the Sex Offenders Registration Act for the rest of your life. Upon your release from custody, you must comply with your reporting and other obligations for this period.

166I am to advise you about the nature of these obligations under the Sex Offenders Registration Act. This will be provided to you by way of a notification of these reporting obligations. You are going to be asked to read those obligations and Mr Pica, will you take Mr Greene through the obligations pursuant to the Sex Offenders Registration Act, rather than me doing that at this stage?

167MR PICA:  Yes, I will, Your Honour.

168HER HONOUR:  Yes, all right, thank you.  You can have a seat thank you, Mr Greene.  Counsel, I will provide you with a copy of the table of sentences.

UPON RESUMING ON 7 JUNE 2023 FOR FURTHER SENTENCING HEARING

169Mr Greene, subsequent to handing down my reasons for sentence on 5 June 2023, it has become apparent that the sentence imposed for the Commonwealth charge is in error and accordingly, the matter was listed today for further mention so that I could discuss with parties the way in which the error could be rectified.

170It was my intention to sentence you on the Commonwealth charge to a term of imprisonment for a period of 20 months, which would require you to serve 8 months in prison before becoming eligible for parole. That was because I had determined that no other sentence but one of imprisonment would be appropriate. For clarity, the non-parole period that I had set was due to commence at the expiration of the State non-parole period to reflect the fact that you have also been sentenced for State offending at the same time. And I consider that it was necessary that some of the sentence imposed for the Commonwealth matter be cumulative, to reflect the seriousness of the offending and the impact on the victim, amongst other things.

171I also had regard to the principles of totality and the sentence for the Commonwealth matter reflects the fact that you Mr Greene, had pleaded guilty to the Commonwealth charge. So no doubt Mr Pica will explain this further, but in effect what I had done was imposed a head sentence with a non-parole period. But, pursuant to s19AC of the Crimes Act 1914 (Cth) where a person is convicted of a federal offence and the court imposes on the person a federal sentence that does not exceed three years - so that was the case with you - the court must make a single recognisance release order in respect of that sentence and must not fix a non-parole period. So it is in effect almost the same thing, but you would be released after the 8 month period on a recognisance.

172So accordingly it has been necessary to reconvene the court and discuss the way in which the sentence would be rectified, with counsel.

173I have determined that in order to reflect my intention and the reasons for sentence, that rather than imposing a head sentence with a non-parole period, Mr Greene, I am sentencing you to a period of 20 months imprisonment, so it is the same amount of time, pursuant to s20(1)(b) of the Crimes Act1914 (Cth) to be released after 8 months after entering into a recognisance in the sum of $500, and to comply with a number of conditions.

174Now I am going to set out the conditions in a moment. The conditions have been prepared having regard to s20(1B) of the Crimes Act 1914 which provides the mandatory conditions. The conditions of the recognisance release order will be as follows:

·      You are to be of good behaviour for 12 months;

·      That you are to be subject to the supervision of a probation officer appointed in accordance with the order;

·      That you must obey all reasonable directions of the probation officer;

·      You must not travel interstate or overseas without the written permission of the probation officer; and

·      You must undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

175I direct that this sentence is to commence upon the expiration of the non‑parole period for State sentences imposed with this sentence.  

176What is going to happen, Mr Greene, is you are going to be provided with a copy of the order at a later stage hopefully today, you will be asked to sign and acknowledge that you agree to comply with the conditions of the recognisance release order but I also need you to give verbal consent to that today, so I will just explain to you what it means, in hopefully less technical terms.

177So in effect, the order of the court is the same as the order that I imposed the other day that, whilst I have sentenced you to 20 months imprisonment for the Commonwealth offence, you are to be released after you have served 8 months. As I have said, that 8 months will commence when the State non‑parole period expires. So in effect you will need to serve the 8 months sentence on the Commonwealth charge and after serving that 8 months, you will be released from custody on the Commonwealth sentence but you must give an undertaking or indicate your agreement to comply with the conditions that I just read out a moment ago. 

178Firstly, Mr Greene, did you hear the conditions that I read out to you about the recognisance release order?  Do you understand those conditions?

179OFFENDER:  Yes, I do.

180HER HONOUR:  Yes, and do you agree to enter into the recognisance release order and abide by those conditions?

181OFFENDER:  Yes, I do.

182HER HONOUR:  All right.  Now obviously I cannot say whether or not you would be granted parole for the State sentences by this time. This is not a matter upon which I can speculate. I have sentenced you on the State sentence to a head sentence of 13 years and 8 months, but at the expiration of the non-parole period that I have already fixed for the State charges, being 8 years and 6 months, then your Commonwealth sentence will begin (you may or may not have been granted parole, but the Commonwealth sentence will commence regardless).

183So upon your release you must comply with the conditions of the recognisance release order. If you do not comply with the conditions without reasonable cause or excuse, then the prosecution may seek to issue breach proceedings, the effect of which is that you may be required to serve the remaining 12 months imprisonment.  Do you understand that?

184OFFENDER:  Yes, I do.

185HER HONOUR:  All right.  Now I also mentioned the recognisance release amount, I mentioned the sum of $500. You do not have to pay the $500 at the time of entering into the recognisance release order. Once you are released on a recognisance of $500, it is only if you breach the recognisance release order.  So if you did breach the conditions of the recognisance release order, then the $500 would be forfeited, okay, so you would have to pay the $500 if you breached it.

186Do you understand that?

187OFFENDER:  Yes, I do.

188HER HONOUR: All right. So the other thing that I will mention at this point is I, on the last occasion, did not mention the sentence that I would have imposed but for your plea of guilty, pursuant to s6AAA of the Sentencing Act 1991. Initially I did not intend to indicate the s6AAA discount given that you are being sentenced for State charges at the same time and they were charges for which you were found guilty by a jury. But upon further reflection and given that we have reconvened the court I am prepared to give the s6AAA declaration at this stage.

189Had you not pleaded guilty to the Commonwealth charge and if you had gone to trial in relation to the Commonwealth charge, I would have sentenced you to 22 months in prison but to be released on a recognisance after serving a period of 12 months.

Pre-sentence detention (revised as at 7 June 2023)

190As I said a moment ago, the final record of orders of the sentences imposed across both indictments have not yet been completed. So the orders from Monday, being the date of sentence just simply reflected the fact that the matter was adjourned and has now been adjourned to today so that the Court could enable the error to be corrected on the sentence.

191So accordingly, I declare that pre-sentence detention, as of today's date is 100 days and this will be reckoned as time served on the State sentences.

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Table of sentences: Shane Greene

Charge	Offence	Provision	Max pen	Sentence	Cumulation
Indictment : M11089304.1A
1	Indecent act with child under 16	47(1) Crimes Act 1958	10 years	12m	3m
2	Sexual penetration of child under 16 (circumstances of aggravation)	45(1) Crimes Act 1958	25 years	6 ½ years	2 ½ years
3	Indecent act with child under 16	47(1) Crimes Act 1958	10 years	6m	concurrent
4	Indecent act with child under 16	47(1) Crimes Act 1958	10 years	9m	4m
5	Indecent act with child under 16	47(1) Crimes Act 1958	10 years	15m	5m
6	Sexual penetration of child under 16	45(1) Crimes Act 1958	10 years	5 years	9m
7	Sexual penetration of child under 16	45(1) Crimes Act 1958	10 years	8  years	Base
8	Indecent act with child under 16	47(1) Crimes Act 1958	10 years	12 m	3m
9	Indecent act with child under 16	47(1) Crimes Act 1958	10 years	3m	concurrent
10	Sexual penetration of child under 16	45(1) Crimes Act 1958	10 years	5 years	12m
11	Sexual assault of a child under the age of 16	49D(1) Crimes Act 1958	10 years	6m	2m
TES 13 years 8 months NPP 8years 6m
Indictment M11089304.1B
1	Use carriage service for sexual activity with person under 16	S 474.25A Criminal Code (Cth)	15 years	Pursuant to s20(1)(b) of the Crimes Act1914 (Cth), sentenced to 20 months imprisonment, to be released after 8 months after entering into a recognisance in the sum of $500, and to comply with a number of conditions. Commonwealth charge is directed to commence at the expiration of the non-parole period for the State offences imposed the same day.